1807693 (Refugee)

[2020] AATA 6149

1807693 (Refugee) [2020] AATA 6149 (17 December 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1807693

COUNTRY OF REFERENCE:                   India

MEMBER:  Damian Creedon

DATE:  17 December 2020

PLACE OF DECISION:  Perth

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

Statement made on 17 December 2020 at 5:11pm

CATCHWORDS
REFUGEE – protection visa – India – particular social group – member of applicant’s family – fear of persecution disregarded when based on membership of a particular social group consisting of family – family dispute with cousins over agricultural land – murder of applicant’s uncle – claims relate to perceived shortcomings in criminal justice system – vague subjective feelings of apprehension – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Jarrin v MIMA [1998] FCA 765
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
STCB v MIMIA [2006] HCA 61
SZSPT v MIBP [2014] FCA 1245

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 Home Affairs on 8 March 2018 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 21 April 2017. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant.

CRITERIA FOR A PROTECTION VISA

1. 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.

1. 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.

1. 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).

1. 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.

1. 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

1. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background:

1. The applicant is a [age]-year-old man from [Punjab], India.

2. He is single and has never been married.

3. The applicant arrived in Australia [in] May 2014 holding a Student (TU 573) visa granted on 27 February 2014. He lodged an application for a Protection Visa on 21 April 2017.

Claims:

1. The applicant set out his initial claims for protection in a written statement filed in support of his application for a protection visa.[1] Where relevant, the written statement will be referred to by the Tribunal in its analysis below.

   [1] See Departmental File, folios 72 – 74.

Evidence:

1. The Tribunal has before it a range of material, including, relevantly:

   a.The applicant’s protection visa application forms dated 12 April 2017 (visa application);

   b.The applicant’s identity documents being a copy of his passport provided to the Department;

   c.The delegate’s protection visa decision record dated 8 March 2018 (delegate’s decision record); and

   d.The review application form which included a copy of the delegate’s decision record.

2. The Tribunal has also read and had regard to the Department of Foreign Affairs and Trade’s most recent ‘Country Information Report on India’, published on 10 December 2020 (DFAT Report).

Country of reference / receiving country:

1. The applicant claims to be an Indian national. Based on the copy of his passport provided by the applicant to the Department, and in the absence of any other evidence to the contrary, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

Hearing:

1. The applicant attended a hearing on 8 December 2020. He was not represented at the hearing. The hearing was assisted by an interpreter in the Punjabi and English languages.

2. The applicant gave evidence broadly conforming to the written claims outlined in his visa application. Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below:

Country information:

1. The Tribunal has read and had regard to the DFAT Report. The Tribunal notes in particular   the following extracts from the report:

   Police

   5.4 India’s constitution devolves responsibilities for police and public order to the states. Each state and union territory maintains its own police force, and two-thirds of this cohort hold junior ranks. The national corps within the Indian Police Service (IPS) are selected by competitive exams, hold senior ranking positions and enjoy other benefits, including housing and transport. According to a 2018 survey across 22 states, the Centre for the Study of Developing Societies found less than 25 per cent of Indians trust the police highly (compared to 54 per cent for the army). The World Justice Project’s 2020 Rule of Law Index ranked India 114 out of 128 countries with respect to order and security (see also Corruption). This measure considered issues such as crime, civil conflict and use of violence to redress personal grievances.

   …

   Judiciary

   5.12 The Judiciary in India is separate from the Legislature (Parliament) and Executive (President). However, the doctrine of ‘separation of powers’ is not codified under the constitution, reflective of the British system. Instead, various articles of the constitution emphasise separation of function/powers, and the organs themselves impose checks and balances on one another. According to the India Justice Report 2019, there are 28 million cases pending in Indian subordinate courts, of which 24 per cent have been pending for more than five years, and 8 per cent for more than 10 years. In Bihar, Uttar Pradesh, West Bengal, Odisha, Gujarat, Meghalaya and the Andaman and Nicobar Islands, at least one in every four cases has been pending for more than five years. The report points to poor budgeting having led to capacity constraints in the judicial system. The India Justice Report 2019 found average national spending on the judiciary was 0.08 per cent of GDP.

   …

   5.15 Many in India perceive judicial services to be slow and ineffective for people with day-to- day disputes. The World Justice Project Rule of Law (WJP ROL) Index 2020 measured adherence to the rule of law from the perspective of the ordinary person and their experiences in practical, everyday situations. Overall, the WJP ROL ranks India 69 out of 128 countries for adherence to the rule of law. In terms of criminal justice, India stands at 78th position, where effectiveness of the criminal investigation system, effectiveness of the correctional system, absence of discrimination, and timely and effective adjudication were the weakest factors. India stands at 98th on civil justice, with delay, effective enforcement, absence of discrimination, and accessibility and affordability being the weakest factors.

Assessment of Claims and evidence, and findings:

1. 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. 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, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

2. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

3. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

4. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

   Evidence

5. The applicant stated in evidence that he had travelled to Australia in May 2014 on a student visa and that he had intended to undertake a study pathway culminating in a Bachelor [degree]. He stated that his student visa had been cancelled as he had changed his course outside of his Student visa’s conditions and that that cancellation had been upheld by the Tribunal (differently constituted) and again on appeal to the Federal Circuit Court. The applicant stated that he made his protection visa application after the fate of his Student visa became certain.

6. The Tribunal asked the applicant whether, when coming onshore, he had intended to follow lawful pathways to residence in Australia and he stated that he did. The applicant further stated that when he came to Australia he did not intend to return to India.

7. The Tribunal has read and had regard to the decisions of the Tribunal and the Federal Circuit Court in respect of the applicant’s Student visa application. To the extent that the applicant’s evidence to the Tribunal in respect of his Student visa application varies with the evidence he gave to the Tribunal as presently constituted, the Tribunal prefers the latter as being a more plausible and coherent account of his circumstances for the purposes of assessing his protection visa application.

8. The applicant stated in evidence that he is not working. The tribunal has no cogent evidence to the contrary before it and regards the applicant’s work status as irrelevant to the question before it. Put differently, the evidence available to the Tribunal as to the applicant’s work status does not weigh either in his favour or against him in this application and does not bear upon his credibility.

9. When asked about his fears of returning to India the applicant stated, in effect, that there were two events, or series of events, which cause him to fear returning there: the first of which occurred in 2009, and the second in 2017. The Tribunal discussed each of the events with the applicant in turn.

   The 2009 events

10. The applicant stated in evidence that his father was one of four brothers; the brothers had, together, ownership of what the applicant described in his written statement as ‘a large chunk of land’ and in oral evidence as ‘12 killas’[2]. When pressed by the Tribunal the applicant stated that the land is his family’s ancestral land, that it is agricultural land and that it was inherited by his father and uncles from the applicant’s grandparents. The applicant stated that his grandmother is still living and has retained a small parcel for her own needs.

    [2] Approximately 48,562m2.

11. The applicant stated that, adjoining his father’s and uncles’ land are landholdings owned by his father’s ‘cousin-brothers’. When pressed by the Tribunal the applicant stated that these persons were his father’s cousins. The applicant stated that a dispute emerged between the two groups (that is, his father and three uncles on the one side, and his father’s cousins on the other) regarding irrigation rights in respect of the land owned by each party. The applicant stated that the dispute escalated to ‘verbal fights’ involving threats of violence.

12. The applicant stated that matters came to a head in 2009 when one of the applicant’s uncles was invited to a meeting. The applicant stated that his uncle attended at the designated time and place expecting to discuss the dispute, but that he was ‘ambushed’ by five men and shot in the head by a firearm at point blank range. According to the applicant his uncle died ‘on the spot’. When pressed, the applicant stated his belief that the discharge of the firearm was not accidental, that the five men had intended to murder his uncle and that the murder was a result of the dispute over irrigation rights.

13. When further pressed the applicant stated that the five men comprised of two who were related to him by blood, and three who were ‘from the village’ and in respect of whom his father and uncles were ‘not on good terms’. The applicant stated that the person who fired the shot that killed his uncle was one of the three villagers.

14. When asked about the response of his family to this event, the applicant stated that a complaint was laid with the police and that the five men were arrested, tried and convicted. He stated that the person who fired the firearm and that person’s father (who were both members of the group of five) were sentenced to terms of imprisonment of ‘3 to 4 years’ and that the other three members of the group received fines.

15. The applicant stated that the charges had been ‘downgraded’ from murder to ‘attempted murder’ and that this had occurred due to ‘political pressure’. When pressed, the applicant stated that his family were Congress party members and that the perpetrators were members of the Akali Dal party. When further pressed the applicant stated his belief that ‘political pressure’ had been brought to bear upon the authorities to treat the perpetrators leniently. When asked what type of pressure had been brought to bear the applicant was unable to particularise his claims and referred only to vague and indistinct ‘pressure’ from outside of the relevant civic structures including the police and judiciary.

16. The applicant stated that his father and his surviving uncles were not satisfied with this outcome and had ‘filed a writ’ in the ‘High Court’ to seek further redress. The applicant was referred by the Tribunal to copies of court documents that he submitted to the Department with his visa application[3] and he confirmed in oral evidence that those documents related to the family’s action in the High Court. The applicant stated that the action is ongoing and that his family intend to pursue it until it is finally resolved.

    [3] See Department file, folios 1 – 14.

17. The applicant stated that since around ‘2014 or 2015’ members of the two family groups, and their associates, had been living in the same village. When asked whether there had been any further threats or violence made against his father or his family since this time the applicant stated that nothing had happened in that time.

18. When asked why he feared returning to India in these circumstances, given that his family is living peacefully, the applicant stated that he feared that a ‘small fight’ between the groups, if it happened, could quickly escalate, that it could turn violent and that he, as a member of the family, could become involved.

19. When asked whether, given that the authorities had apparently reacted appropriately to the events of 2009, albeit with a claim for further redress still before the courts, he could not avail himself of the authorities’ assistance in the future should matters escalate, the applicant stated his belief that he and his family could not bring sufficient ‘political’ influence to bear upon the authorities to motivate them to act.

    The 2017 events

20. The applicant stated that in ‘November or December’ of 2017 he had attended at a nightclub in [Suburb 1], Western Australia. When pressed the applicant stated that he was not a frequent attendee at the nightclub but that that particular occasion had been a ‘Bollywood night’ event.

1. He stated that at the event he had witnessed a fight between two groups of patrons. When pressed the applicant stated that each group had comprised three or four individuals; he stated that he did not know any of the participants and that he was not himself involved in the fight.

2. The applicant stated that after the fight, the next day, he was approached by a friend of his to identify the participants in the fight and relate what he had seen. When pressed he stated that his friend and three others attended at his residence, asked him to ‘come outside’ and questioned him about what he saw of the incident and asked him to identity a certain participant or participants. The applicant stated that when he hesitated to do so he was set upon by his friend and the group of three, was assaulted, pulled into their car and driven to a local park where he was further threatened. He stated that he was eventually let go and was dropped at a local train station. He stated that he made his way from there to a friend’s house and that the friend encouraged him to file a complaint with the Western Australian Police, which he did, also providing a statement to police, which resulted in the arrest and charging of the participants in the assault.

3. He stated that three of the group of alleged assailants were ‘here illegally’ in that their visas had expired and that those individuals are presently in immigration detention. The fourth member of the group was on a temporary visa and was acquitted of the charges.

4. When asked about his fears of returning to India on account of these events, the applicant stated that after he had made his complaint to police, he and his family in India had received threatening phone calls ‘from India’ in respect of his complaint. He stated that he was threatened that he if did not drop the charges against these individuals he ‘would not be left alone’.

5. The applicant stated the last occasion that he received the calls was approximately one year ago, towards the end of 2019. When pressed the applicant stated that he has not received any further telephone calls as three of his alleged assailants were now in immigration detention. When further pressed, the applicant stated that his family were no longer receiving threatening telephone calls.

6. When asked by the Tribunal why he feared returning to India on account of the 2017 events, the applicant stated that:

   They know my house, the know where I live, they don’t live far away… In India they can do anything to me because in India if you have power and money you can do anything.

   Analysis

7. In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully. Overall, the Tribunal considers that the applicant provided a consistent and plausible account of his circumstances. In particular the Tribunal is persuaded that:

   a.In or before 2009 his father and three uncles became involved in a dispute with their cousins regarding irrigation rights across the family’s ancestral agricultural land;

   b.The dispute escalated over time to ‘verbal fights involving threats of violence’ and culminated in 2009 when one of the applicant’s uncles was shot and killed by a member of the opposing group;

   c.The offenders were arrested by police on the complaint of the applicant’s family, tried in a criminal court, convicted and sentenced according to law;

   d.The applicant’s family were not satisfied with this outcome and have claimed further redress from the offenders by pursuing an action in the ‘High Court’;

   e.Since ‘around 2014 or 2015’ members of the two family groups (the applicant’s family and their cousins and associates) have been living in the same village;

   f.No further threats or violence has been inflicted upon the applicant’s family and ‘nothing has happened’ since ‘2014 or 2015’;

   g.In ‘November or December’ of 2017 the applicant attended at a nightclub in [Suburb 1], Western Australia.

   h.While at the nightclub the applicant witnessed a fight between two groups.

   i.After the event he was approached by ‘a friend’ and three of the friend’s associates and asked to identify the participants in the fight and relate what he had seen at the nightclub;

   j.When he declined to do so he was assaulted, ‘kidnapped’ and threatened by the friend and three associates;

   k.He made a complaint to police and gave a statement to them concerning this treatment;

   l.Police arrested the group, three of whom were found to be in Australia illegally, their visas having expired, and they were placed into immigration detention;

   m.the applicant and his family received threatening phone calls from the family and associates of the three men in immigration detention;

   n.the last occasion that he received threatening calls was approximately one year ago, ‘towards the end of 2019’.

8. The Tribunal also accepts that the applicant wishes to stay in Australia to make a future for himself.

   The 2009 events

9. The applicant claimed no fears of persecution in respect of his race, religion or nationality. In respect of his claims of political bias or corruption allegedly influencing the outcome of complaints to state authorities, these do not amount to a fear arising on account of a political opinion: see Jarrin v MIMA.[4]

   [4] [1998] FCA 765 (Madgwick J, 25 June 1998).

10. The first issue to be resolved in respect of the 2009 events, then, and interrelated with whether the applicant has a well-founded fear of persecution, is whether the applicant is a member of a particular social group. In assessing that question the Act draws a distinction, relevant to this case, between ‘membership of a particular social group consisting of family’[5] and ‘membership of a particular social group other than family’.[6]

    [5] Act, s.5K.

    [6] Act, s.5L.

11. In respect of the former, s.5K of the Act states, relevantly:

    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.

12. Accordingly, for s.5K to apply the applicant’s fear of persecution must be for the reason of his membership of a particular social group that consists of his family.

13. The applicant’s evidence as to this threshold issue is clear: his claim to holding a fear of being the target of threatening or violent behaviour is as a direct result of his membership of his family, and by reason of his father’s and uncles’ dispute with their cousins over irrigation rights.[7]

    [7] The applicant made no claims that would invoke the operation of s.5K(b).

14. The Tribunal finds, therefore, that the applicant’s fear of persecution is for the reason of his membership of a particular social group that consists of his family. It follows that s.5K applies in this case.

15. Where s.5K applies the Tribunal is required to consider the following questions before determining that an applicant’s fear of persecution must be disregarded:[8]

    a.whether any other member or former member of the applicant’s family had been persecuted in the past or had a fear of persecution;

    b.if so, what the reason for that persecution was; and

    c.whether the reason is one of the five refugee reasons.

    [8] STCB v MIMIA [2006] HCA 61 at [26], [29].

16. Based on the applicant’s evidence the Tribunal makes the following findings:

    a.the applicant’s father and three uncles have been persecuted in the past or have had a fear of persecution;

    b.the reason for that persecution or fear of persecution was a dispute with their cousins, who are neighbouring landowners, regarding irrigation rights over agricultural land and which escalated to the murder of one of the applicant’s uncles; and

    c.there is no evidence before the Tribunal to suggest that the reason for the dispute is other than a disagreement over competing irrigation rights under the applicable civil laws and customs of India, which in 2009 escalated to violence in breach of the relevant criminal laws there.

17. Taken at their highest, the applicant’s claims arguably relate to issues such as local corruption, and perceived shortcomings in India’s criminal justice system and the rule of law. These reflect broad socio-economic, political and legal conditions in India of general application, and they are consistent with the country information.

18. However, notwithstanding these claims, to the extent that the irrigation dispute has involved criminal acts the evidence before the Tribunal is that those acts have been dealt with in the past by the relevant authorities and the criminal justice system in India. Further, the applicant’s evidence is that the issues raised by the dispute are the subject of ongoing litigation commenced by the applicant’s family in the High Court there.

19. The Tribunal finds therefore that the essential and significant reason for any harm suffered by the applicant’s family members in the past is not for any of the five refugee reasons set out in s.5J(1), but rather is in respect of a civil dispute over irrigation rights and breaches of the relevant criminal law in India which have been adjudicated in the past by the relevant authorities there.

20. It follows that the fear of persecution claimed by the applicant in respect of the 2009 events is not for one of the five refugee reasons and is to be disregarded by the Tribunal.

21. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India on account of the 2009 events.

    The 2017 events

22. When pressed by the Tribunal as to the foundations for his fear of persecution in respect of the 2017 events if he is returned to India the applicant could provide no further or other basis for his fear that did not amount to vague, subjective feelings of apprehension. Although he claimed that ‘they’ could do ‘anything’ to him he provided no corroborating evidence to support this claim and the Tribunal found his evidence on this issue to be unpersuasive.

23. Overall, the applicant’s evidence as to the 2017 events was vague as to the nature of the threats he claims were made against him and on his own account the threats ceased some 12 months ago. Accordingly, the Tribunal finds the applicant’s claims of fear based upon the 2017 events to be mere conjecture or surmise on his part not amounting to a well-founded fear.[9]

    [9] MIEA v Guo (1997) 191 CLR 559 at 572.

24. It follows that the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India on account of the 2017 events

    Claims

25. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

26. The Tribunal has considered the applicant’s claims under complementary protection.

27. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future.

28. The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to India as there is taken not to be a real risk of significant harm since the ‘real risk’ is one faced by the sons of indebted fathers in India generally and is not faced by the applicant personally: s.36(2B)(c) of the Act.[10] Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    [10] See also: SZSPT v MIBP [2014] FCA 1245.

Conclusion: Refugee Criterion

1. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

1. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal 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 that there is a real risk that he will suffer significant harm.

Overall conclusion:

1. 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).

2. 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).

3. 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

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

Damian Creedon 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.

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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.

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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.

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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.

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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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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