1701817 (Refugee)

[2020] AATA 5368

1701817 (Refugee) [2020] AATA 5368 (16 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701817

COUNTRY OF REFERENCE:                   India

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 July 2020 at 11:23 am (WA time)

DATE OF WRITTEN RECORD:                30 July 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 30 July 2020 at 10:46am

CATCHWORDS

REFUGEE – Protection visa – India– effective state protection – talented mathematician – mixed faith marriages – threat of harm from girlfriend’s family–credibility concerns – delay in lodging protection application–decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5AAA, 36, 65

Migration Regulations 1994, Schedule 2

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 January 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 16 July 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this statement is a corrected transcript of the oral decision with reasons that was delivered to the applicant in person at the hearing.

   DECISION

4. The Tribunal affirms the decision under review.

   Dr Colin Huntly
   Member

   
   

   -Corrected Transcript-

   ORAL DECISION OF MEMBER HUNTLY  [11.02 AM]

5. This is an oral decision with reasons, delivered at the Perth Registry of the Tribunal to the applicant in person (via videoconference between hearing rooms).

   Introduction

6. The criteria for a Protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994.  An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria, or on complementary protection grounds. 

7. Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department relating to refugee law and complementary protection, together with any country information assessment prepared by DFAT, as is required by Ministerial Direction No.84.

   Credibility

   CoVid-19 emergency

8. I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020.  I have also had regard to President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  In particular:

   That ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1]

   That ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2]

   [1]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).

   [2]At [8.1].

   Credibility

9. Before looking at my findings I note that on questions of credit I need to give benefit of the doubt, but it is for an applicant to make their own case in as much detail as possible.  Greater weight may be given to one piece of evidence against another and there is no rule that I must hold a positive state of disbelief before making adverse assessments.  I also note that a decision-maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held objectively by an applicant in the context of refugee protection.

10. Consistent with the various decisions commencing with those in the matter of Iyer,[3] if a decision-maker finds on the evidence that an applicant does not subjectively hold a genuine fear of persecution there is no need to consider whether or not there is an objective basis for a claim or indeed whether aspects of the claim are satisfied.  I also note that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.

    [3]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]; affirmed in Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) at [56]; SDAQ v MIMIA (2003) 129 FCR 137 at [19]; SZDGB v MIAC [2006] FMCA 341 (Driver FM, 24 March 2006) at [19]; SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48]; SZSSQ v MIBP [2013] FCCA 1762 (Judge Nicholls, 31 October 2013) at [38] and [48].

11. In this respect I have had regard to Migration and Refugee Division ‘Guidelines on the assessment of credibility’ (July 2015) (the Guidelines), which provides at [8]:

    It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.

12. I also note that the same source, at [13] provides that:

    In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the Tribunal are satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence.  This refers to the requirements of section 423A of the Act.

13. Further, at [17]-[19] of the Guidelines it cautions that:

    Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The Tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the Tribunal.  A Member should maintain and be seen to have an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend.  An applicant may be plainly confronted with matters, which bear adversely on his or her credit or which brings his or her account into question.

14. With respect to contradictions, inconsistencies and omissions, [27]-[28] states:

    Contradictions, inconsistencies and omissions, may arise in the evidence before the Tribunal.  The Tribunal will consider all the evidence before it, assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.

    New claims and evidence

15. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to in fact establish or assist in establishing the claim. 

16. This is consistent with the well-settled proposition that it is for an applicant to make their own case.  Further, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made.

17. Two obligations here are particularly relevant: the ongoing requirement under s.104 of the Act for an applicant to ensure their relevant details are correct and to change any incorrect information at the first reasonable opportunity.

18. Second, regarding protection applications, s.423A of the Act requires the Tribunal to draw an adverse inference about the credibility of certain of an applicant’s claims or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.  In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation about why the claim was not raised or evidence not presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence. 

19. Applicants, therefore, who do not present all claims and evidence to the primary decision-maker must have a reasonable explanation for not doing so.

    Background

20. As to identity, according to the applicant’s movement record, he arrived in Australia [in] May 2009, travelling on a [Student] visa.  On 25 February 2010, the applicant’s student visa was cancelled. 

21. On 2 March 2010 the applicant was granted a bridging visa. 

22. Approximately five and half years later the applicant applied for a Protection visa on 23 September 2015. 

23. The applicant seeks review of a decision of a delegate for the Minister for Immigration, dated 6 January 2017.  That decision found that the applicant should not be granted a Protection visa for reasons discussed at pp.4- 6 of the decision.  These reasons suggest that the applicant did not, in the view of the delegate, meet the requirements of s.36(2)(a) of the Act, (the refugee criteria), and in the alternative did not meet the requirements of s.36(2)(aa) of the Act (the complementary criteria). 

24. In passing, I note also that the delegate stated that effective state protection was available to the applicant in India, in relation to his stated claims for the purposes of s.5LA of the Act.

25. The applicant appeared before the Tribunal on two occasions.  Namely, by telephone on 12 May 2020 and then again (owing to the CoVid19 virus protocols in place at the Registry) using a form of videoconferencing at the Perth registry of the Tribunal on 16 July 2020, to answer questions, present evidence and make arguments. 

26. Proceedings were conducted effectively in the English language at the request of the applicant, although an interpreter proficient in the Punjabi and English languages was made available throughout the hearings and relied upon by the applicant when this was required.

    Identity

27. The applicant claims to be a citizen of India and provided a copy of his passport to the Department with his application for protection. 

28. I find that the applicant is a citizen of India, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

29. As will become apparent, I find that s.36(3) of the Act does not arise for consideration with respect to this applicant.

    Claims

    First hearing

30. At the first hearing with the Tribunal on 12 May 2020, I explained to you the documents I had in my possession.  I also read to you a summary of the claims that were contained in the delegate’s record of decision (Part 4, p2).  This was as follows:

    In summary, the applicant claims that his girlfriend’s brother is threatening to kill him and students at his university are threatening to kill him due to being jealous of his mathematical talents.

31. I asked you, at the first hearing, if this was a fair and accurate summary of your claims for protection as made in your original Form 866C, and you said ‘Yes’.  I asked you if there was any information in the documents that I had before me that you needed to change.  You said ‘No’.  I asked you if there was anything that you would like to add to your claims for protection and you said ‘No’.  I then asked you if you were happy for me to proceed on the basis of the information I had before me, and you said ‘Yes’.

32. I pointed out to you some of the difficulties raised by your application and indicated that we would need to discuss these at the next hearing.  In particular, I noted that there had been substantial delay in your seeking protection.  I noted that the delegate found that you did not meet the requirements of the refugee criteria, and I explained to you the requirements of complementary protection. 

33. I suggested to you that, based on a plain reading of your claims for protection, that it did not appear that you would meet the level of harm that amounts to a real risk of significant harm on return to India, now or in the reasonably foreseeable future, and referred to the discussion contained in the delegate’s record of decision which appeared to draw this conclusion.

34. We also discussed the availability of effective state protection and also the fact that third country protection had not been considered by the delegate but may be applicable to an applicant in your claimed circumstances. 

35. I also noted that the documents that you had provided, including documents shortly before the first hearing (in particular, a written statement dated 16 March 2020). 

36. Following the first hearing I received no further submissions from you. 

    Second hearing

37. At the second hearing with the Tribunal I once again reminded you of what we had discussed on 5 May 2020.  I also went through the summary of claims referred to above, which you again confirmed were fair and accurate.  I asked if there was anything you would like to change in the documents or protection claims, and you said ‘No’, there was nothing you wanted to add to your protection claims and that you were happy to proceed.

38. In the course of the hearing you did indicate that you had brought two books that you would like me to view.  We discussed whether or not this was necessary.  You indicated one of these documents was a book of poetry which had no relevance to your application for protection, and the other was a book you had written relating to mathematics.

39. I indicated to you that I was prepared to accept that you were a talented mathematician; that you had qualified in mathematics from Indian universities.  You accepted that there was nothing further that could be demonstrated by this book, and therefore I am prepared to accept that you offered the book and that it supports what I have already found to be the case.

40. I asked you about your family in India.  You said that your family was well, although your mother and father had passed away, your mother in 2017, your father in 2019. 

41. You expressed sadness at not being able to return to India on the occasion of their death, and that this had created some friction between you and your family.  You have three brothers and one sister.  The oldest two brothers are married with children, living in your hometown.  Your youngest brother is unmarried and living in your hometown.  All are well.  Your sister is married and living in a nearby town. 

42. I asked you if you had made any request to the Department to return to India for those funerals.  You said that you had discussed the matter with a migration agent, who indicated to you that you could apply to the Department, but that it may be unlikely to be approved.  You stated that you decided not apply (and using your words) ‘for no particular reason’.

43. Despite the fact that you said that this had created some tension with your family, you remain in regular contact with all of your family in India. 

44. You stated that you are continuing in the Sikh faith, that you attend temple [once] a week.  It is close to your home.  You particularly attend the Sunday feast where you often assist in the preparation of food.

45. Although you are a sincere Sikh, you practice your faith and observe the tenets of your beliefs, while not wearing a head covering or allowing your hair to grow in the traditional manner for a Sikh.  I asked you about this and you said that you had ceased doing this when you had become a student, because the care and maintenance of hair and preparation of the turban traditionally required involved too much time and you would rather devote that time to your studies.  I accept that you are a sincere Sikh.  I note the country information that some 54 per cent of the population of the Punjab are Sikh.[4]

    [4]UK Home Office Country Policy and Information Note ‘India: Religious minorities’, May 2018 at [4.1.5].

46. You stated that when you were studying for your Masters’ degree in mathematics, you met your girlfriend (the girl who you claim as your girlfriend) in 2005.  You were threatened by her brother because they are a Hindu family and they did not approve of mixed faith marriages or relationships, and that there was an element of inter-caste issues in this relationship as well. 

47. The last time you saw this woman was in 2008.  You claimed to have been in constant contact with her since leaving India, and that you were still in a relationship with her. 

48. I asked for you to provide some evidence supporting your claims to be in contact with this person.  You say that you last had electronic communication with her in 2016, but you speak to her regularly by public telephone.

49. Initially you said that her family were still making threats against you, and you have heard about this through your family.  On further questioning you indicated that no threats were made against your family in India. 

50. I pointed out to you that your evidence relating to having a continuing relationship with this person was lacking in credibility.  I noted that it was improbable that you chose to continue to contact her by public telephone when you had a telephone of your own.  I pointed out to you that the amount of evidence that you had to support such an important aspect of your claim to hold a continuing well-founded fear of persecution or significant harm in India appeared to be inadequate.

51. You asserted that this relationship is still continuing and that the threat of harm you claim to fear still applied.  Despite this, I note that, even by your own evidence, there has been no contact between you and this person’s brother since 2006, which is at least 14 years ago.

52. Also, by your own evidence, you have had no online communication with this person who you claim to be your girlfriend, since 2016.  On the basis of this evidence, I do not find that your claims to be in a continuing relationship with this person, or to have received any threats from this person’s family since 2006, to be credible.

53. I also discussed with you the claims you have made to be a talented mathematician living under constant threat in India because of the jealousy of other mathematics students in that country.  I pointed out to you that there was no evidence online of your having published any mathematics papers in any forum at any time beyond your thesis. 

54. Your evidence to me was that you could not publish anywhere, because to do so would be to divulge your location, and that this would create a threat to you.  You also indicated that you were concerned that your work would be plagiarised and stolen by others, and this was why you decided to leave India and not publish in that country.

55. On the basis of your evidence, I find that you are a student of mathematics but that you have not published in any recognised scholarly forum.  There is nothing before me on the evidence you have provided to suggest that any person would take any interest in your work as a mathematician for any reason in any country.  Accordingly, I find that your core claim for protection in Australia lacks credibility. 

56. I also note the significant length of time you took in seeking protection in Australia, which was some six and a half years after arriving in this country.  Even then, it was only after an extended period of time having had your student visa cancelled that you decided to apply for protection.

57. It is reasonable to expect a person who genuinely fears harm in another country to seek assistance, support and protection at the first reasonable opportunity.  It is not apparent to me that you did this. 

58. Indeed, your failure to act at the first reasonable opportunity to seek assistance and support and protection, further suggests to me that your claims for protection lack credibility. 

1. I have had regard to the circumstances you have described to me about your relationship and your status as a talented mathematician.  Having carefully considered the claims contained within your original application for protection, and your subsequent application to the Tribunal, as I have expressed to you, I have considerable doubts about the credibility of your evidence and your claims about your perceived harm in India, now and in the reasonably foreseeable future.  These credibility concerns are, as I have said, exacerbated by your extended period of residence in Australia before seeking protection.

2. In light of these considerations, I find that your core claims to fear either a real chance of serious harm, or a real risk of significant harm, in India for any reason from any person at any time are not credible. 

3. Having failed to demonstrate a genuinely subjective, well-founded fear of persecution for the purpose of s.36(2)(a) of the Act, I have also considered the alternative complementary protection criteria at s.36(2)(aa) of the Act. 

4. I find that you do not subjectively fear significant harm from any person for any reason in India now or in the reasonably foreseeable future, on the basis of the credibility findings made above, and after considering the interests of any affected person, I find that you would not face any chance of serious harm on return to India for any reason.

5. On the evidence, I also find that there is no real risk that you would be significantly harmed by any person, for any reason, in India now or in the reasonably foreseeable future.  Taking your claims at their highest, first individually and then cumulatively, they remain largely unsupported by corroborating evidence and are, in important respects, unsatisfactory and lacking in appropriate corroboration.

   Summary

6. For the foregoing reasons, I am not satisfied that you are a person in respect of whom Australia has protection obligations, under s.36(2)(a) of the Act. 

7. Having concluded that you do not meet the refugee criteria, I have considered the alternative criteria and I am not satisfied that you are a person in respect of whom Australia has obligations under s.36(2)(aa) of the Act. 

8. As at the date of this decision there is no suggestion that you are a member of the same family as a person who meets either of those criteria.  Accordingly, the criteria at s.36(2)(c) of the Act is not met. 

9. As I do not find that you have a genuine and subjective well-founded fear of persecution, and do not otherwise satisfy the requirements for a protection visa, consideration of s.36(3) of the Act, relating to effective third country protection, is not required.

   Decision

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

    END OF ORAL DECISION  [11.23 AM]