1806645 (Refugee)

[2022] AATA 4057

1806645 (Refugee) [2022] AATA 4057 (28 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Davinder Kaur (MARN: 0848822)

CASE NUMBER:  1806645

COUNTRY OF REFERENCE:                   India

MEMBER:Karen Vernon

DATE:28 September 2022

PLACE OF DECISION:  Perth

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

Statement made on 28 September 2022 at 2:21pm

CATCHWORDS

REFUGEE – Protection visa – India – applicant consents to the Tribunal determining the review without appearing before it –family dispute –delay in seeking protection – insufficient information and lack of detail – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 425, 499

Migration Regulations 1994, Schedule 2

CASES
Randhawa v MIEA (1994) 35 ALD 1

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

Background

1. According to the visa application, the applicant was born on [date] in Gurdaspur, in the Punjab Province of India.

2. In 2009 the applicant left India to study in Australia.  His grandfather, who controlled the family finances, used money from the joint family savings to pay for the applicant’s student expenses in Australia.  After some time, other family members in India disputed why the joint savings had only been spent on the applicant.   When the applicant applied to extend his student visa in Australia, his grandfather withdrew all the money from his account, which the applicant believes is the reason why his student visa application was refused.  The applicant’s family in India want the applicant to return all the money from the family joint savings that was spent on his studies otherwise they will harm him.

3. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).

   Migration history

4. According to the Department of Home Affairs (Department) records:

   a.on 2 July 2009 the applicant was granted a [student] visa to enter Australia;

   b.on [date] August 2009 the applicant arrived in Australia travelling on an Indian passport;  

   c.on 31 January 2012 the applicant was granted a further student visa.  He then left Australia on [date] February 2012 before returning on [date] March 2012. 

   d.on 13 March 2013, the applicant applied for a new student visa;

   e.on 11 June 2013, the student visa application was refused due to fraud;

   f.on 17 December 2014 the Migration Review Tribunal (MRT) affirmed the decision to refuse the applicant’s student visa;

   g.on 11 April 2016, the applicant’s application for Ministerial Intervention lodged in 2015 was declined.

   Protection visa and delegate’s decision

5. On 31 May 2016, the applicant applied for a protection visa.  He was granted a bridging visa on 10 June 2016.

6. On 16 January 2018, the Department wrote to the applicant and invited him to attend an interview on 13 February 2018 for the purpose of obtaining more information about the visa application.  The applicant did not attend the interview or provide an explanation for his non- attendance.

7. On 21 February 2018, the delegate refused the applicant’s claims on the basis that the delegate was not satisfied that the applicant’s claimed fear of harm in India was for one of the s 5J(1)(a) reasons, that is race, religion, nationality, membership of a particular social group or political opinion, or that the applicant would be targeted on his return to India for any of the reasons in s 5J(1)(a) of the Act.

8. The applicant was notified of the delegate’s decision on 21 February 2018.

   Review Application

9. The applicant lodged a review of the delegate’s decision with the Tribunal on 12 March 2018.

10. On 8 August 2022 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 12 September 2022 pursuant to s 425(1) of the Act.

11. On 5 September 2022 the applicant’s representative advised the Tribunal that the applicant would not attend the hearing on 12 September 2022, did not have further evidence to provide, and consented to a decision being made on the papers without taking further steps to allow the applicant to appear.

12. I am satisfied the applicant does not have any new evidence to present to the Tribunal, and consents to the Tribunal determining the review without appearing before it.  This matter has therefore been determined on the information available to the Tribunal.

    Evidence before the Tribunal

13. The evidence available to the Tribunal comprised a copy of the Department’s file (including the application for the protection visa), the delegate’s decision record, and the Tribunal file on the application for review.

    ISSUES FOR DETERMINATION

14. The issues in this review are:

    a.whether the applicant is a refugee, pursuant to s 36(2)(a) of the Act; or

    b.if not, whether there are 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 he will suffer significant harm, pursuant to s 36(2)(aa) of the Act; or

    c.whether the applicant is a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act, and who holds a protection visa of the same class as applied for by the applicant, pursuant to s36(2)(b) or (c) of the Act.

    Criteria for a protection visa

15. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act. 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.

16. Section 36(2)(a) of the Act 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.

17. 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 themselves 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).

18. Under s 5J(1) of the Act, 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.

19. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, 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

20. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

    PROTECTION CLAIMS

21. According to his visa application, the applicant claims protection on the sole basis that his family in India have threatened to harm him if he doesn’t repay all the money from the family joint savings that was spent on the applicant’s studies in Australia. The applicant claims he doesn’t have the money to repay his family and is scared that if he returns to India he will be harmed.  

    ANALYSIS OF EVIDENCE AND FINDINGS

22. For the following reasons, I have concluded that the decision under review should be affirmed.

23. It is the applicant’s responsibility to provide sufficient evidence to establish his claims pursuant to s 5AAA of the Act. 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 35 ALD 1, 13.

24. I note that the applicant did not attend an interview with the Department as requested in 2018 to provide further information to support his claims and declined to attend a hearing before the Tribunal.

25. I am satisfied that the applicant had notice that the Tribunal did not have sufficient information to make a favourable decision on the information supplied by the applicant, that the applicant has had a reasonable opportunity to provide further information to the Tribunal in support of his claim but has not done so.

    Identity and receiving country

26. I find that the applicant has Indian nationality, and that the receiving country for the applicant on this review is India.

    Delay in seeking protection

27. The application for a protection visa was made almost 7 years after the applicant first arrived in Australia.

28. In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a 3-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution.  I find there is no explanation for the delay in applying for a protection visa.  In the absence of a reasonable explanation, I consider that the delay in applying for protection in Australia casts significant doubt on the genuineness of the applicant’s claimed fear of persecution.

    Is the applicant a refugee?

29. The applicant states that he left India to study in Australia.  He does not claim to have left India because he had been persecuted or suffered harm because of his race, religion, nationality, membership of a particular social group or political opinion, or for any other reason.  I find that the applicant left India to study in Australia. I also find that the applicant was not persecuted and did not suffer harm in India prior to coming to Australia.

30. The applicant has provided insufficient details about the family dispute that he claims arose in India after he came to Australia over the money used to pay for his studies in Australia,  including the amount of money the applicant’s grandfather took out of the joint family savings to pay for the applicant’s studies, when the money was taken from the joint family savings, how many family members claimed to be part of the joint family savings, any terms on which the applicant’s grandfather made the money available to pay for the applicant’s student expenses, The applicant has not provided any corroborating evidence of his student expenses, including invoices for the expenses or receipts for payments made for his expenses.

31. There is also insufficient information provided by the applicant about when the dispute arose, who was involved in the dispute, when the demands for repayment were made to the applicant, who made the demands for repayment, who threatened the applicant if he didn’t repay the money, and the nature of the threats made to the applicant. 

32. In view of the insufficient information and lack of detail contained in the visa application, and in the absence of any further information, I am not able to determine whether the applicant’s claimed fear of persecution if he was returned to India now or in the foreseeable future is for one of the s 5J(1)(a) grounds, or even if his fear is well-founded.

33. For these reasons, I am not satisfied that the applicant faces a real chance of persecution in India for any of the grounds in s 5J(1)(a) of the Act. I am therefore not satisfied that the applicant has a well-founded fear of persecution if he returns to India now or in the foreseeable future.

    Is the applicant entitled to complementary protection?

34. For the same reasons as my findings above, I am not satisfied that there are 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 the applicant will suffer significant harm.

    CONCLUSION

35. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

36. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, I have considered the alternative criterion in s 36(2)(aa) of the Act. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

37. There is no suggestion that the applicant satisfies s 36(2) of the Act 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) of the Act.

    decision

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

    Karen Vernon
    Senior 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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …