1809750 (Refugee) - [2024] AATA 3043

1809750 (Refugee) [2024] AATA 3043 (24 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Rayan Hazim (MARN: 1685918)
CASE NUMBER:  1809750
COUNTRY OF REFERENCE:                   India
MEMBER:Scott Clarey
DATE:24 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 April 2024 at 5:12pm
CATCHWORDS
REFUGEE – protection visa – India – familial land dispute – brother’s marriage to poor family – threats from brother’s in-laws directed at applicant – applicant’s future inheritance of family assets – applicant married after marriage of younger brother – fear of harm due to my extended absence – mental health issues – long visa history in Australia – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
Zhang v RRT & Anor [1997] FCA 423
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [the applicant], who is a citizen of India, applied for the visa on 7 November 2016. On 13 March 2018 the delegate refused to grant the visa on the basis that they were not satisfied [the applicant] was owed protection in Australia. On 9 April 2018 [the applicant] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record. [The applicant] attended an interview conducted by the Department on 11 December 2017.
On the basis of the copy of [the applicant]’s Indian passport provided to the Department, I accept that he is a citizen of India and that his identity is as he claims it to be. I accept that India is [the applicant]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
[The applicant] is [an age]-year-old man who was born in [Village 1], India on [date]. According to information provided with the protection visa application form, [the applicant] is of Indian ethnicity and of the Hindu faith. He can speak the Hindi, Telugu and English languages. [The applicant] has a father and younger brother living in India. His mother passed away in April 2021. [The applicant] completed high school in India in [year] and he subsequently studied and completed (in [year]) a bachelor’s degree in [Course 1] at a university in India.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1809750 (Refugee)

Details

AGLC: 1809750 (Refugee) [2024] AATA 3043
Case: [2024] AATA 3043
Decision Date: 24 April 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual from India. The applicant claimed to fear harm from his younger brother's in-laws due to a familial land dispute. The dispute arose from the younger brother's marriage to a woman from a poorer family, which was viewed as a disgrace by the applicant's family, particularly as the applicant, as the eldest son, had not yet married. The applicant alleged that his brother's in-laws had made threats against him, including an incident in 2012 where they allegedly threatened him outside his home in India, and that these threats were motivated by a desire for him to relinquish his inheritance rights to family assets. The decision under review was made by the Tribunal.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) or the complementary protection criterion under section 36(2)(aa). This required the court to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, the applicant faced a real risk of suffering significant harm. A key aspect of this determination involved assessing the applicant's credibility and the well-foundedness of his claimed fear of persecution.

The court affirmed the decision under review, finding that the applicant had not established a well-founded fear of persecution. The court noted significant credibility issues arising from the applicant's evidence, which was described as hesitant, vague, evasive, and at times contradictory when questioned about specific details of his claims. These concerns extended to the origins of the dispute, the alleged threats, the incident in India in 2012, and the reasons for the delay in applying for protection. The court found that the applicant's extended delay in seeking protection, of over four years, was not indicative of someone who genuinely feared for their safety and suggested that the application was made only when other visa options were exhausted. Consequently, the court concluded that the applicant's fears were not well-founded and that he would not face a real chance of serious harm amounting to persecution if returned to India.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons set out below, I have concluded that the decision under review should be affirmed. Claims and evidence I have had regard to all of the information on the Department’s file and the Tribunal’s file. I have thoroughly reviewed the recording of the first hearing and discussed various specific elements of it with [the applicant] at the second hearing. [The applicant] set out his claims for protection in a statutory declaration (7 November 2016) provided with his protection visa application form that stated the following (unedited):I, [applicant name], [address], [occupation], make the following declaration under the Statutory Declarations Act 1959:1.I arrived in Australia in 2009 in order to study a diploma in [Course 2] at [College 1].2.In March 2011, my younger brother [Brother 1]got married to [Ms A]. The couple had been dating for a number of years.3.[Ms A]'s and our family have never gotten along in our town in India. Her family are corrupt and of bad character. This is a feeling felt by many in our community about her family. Accordingly, my brother's marriage reflects poorly onto our family in that we would have someone of such weak repute in our family.4.We constantly expressed our concerns to my brother and informed him that we were of the belief that he could do much better in his choice for a wife.5.Since the beginning of their involvement with each other, I and the rest of my family have disapproved of [Brother 1] and [Ms A]'s relationship. [Ms A]'s family is well aware of the fact that we do not approve of their union.6.It is part of our culture that the eldest son, which is me in our family, be the first child to get married. The marriage of my brother, before I choose a wife is therefore viewed as disrespectful of the traditions and value which are very important to my family.7.No members of my family attended the wedding of [Brother 1] and [Ms A], as we did not want to give our blessing to their marriage.8.[Ms A]'s family contribute much of the blame of the non-acceptance of [Ms A] onto me as I as the eldest son in the family have not provided my blessing to their relationship.9.A number of months before the marriage, whilst I was in Australia, my brother approached my parents and informed them that his future in laws had been making numerous threats that should I return to India that they would try and hurt me.10.These threats also meant that my brother was beginning to have second thoughts about marrying [Ms A].11.In early 2011 a few months before his marriage, [Brother 1] went on a trip with a few of his friends to Hyderbad. Unbeknown to my brother, these friends were close with [Ms A]'s family. The friends kidnapped him and took him away and began to make threats that he had no choice but to marry [Ms A] unless he wanted members of his family to be hurt. Out of fear of the safety of his family, [Brother 1] agreed to proceed with the wedding.12.The reason for these threats is that they [Ms A]'s family are very poor. I however, as the eldest son in my family am entitled to ownership in our family's agricultural lands which produce [crops]. I alsohave ownership in our two houses in our village, [Village 1].13.These two houses are multilevel properties which stand out as there are very few properties of this size in our area, which makes my family and our assets an easy target.14.My brother's in laws are hoping that should I die, that the entitlements in these house would flow onto my brother and thus come into their family.15.I revisited India in June 2012 to spend some time with my family. My parents had not told me abou}\ the threats that were being made as they did not did not want to concern me.16.One day whilst I was at my house, six members of my brother's in laws came to the outside of our house and started threatening me. When we would not let them into our house they spent 30-45 minutes abusing me from the outside, threatening that they knew some 'very bad people' and that they were going to make sure I die. This resulted in a very public scene, which meant that our entire community now knows of the tensions between the families and the seriousness of the threats that have been directed towards us.17.After the incident I questioned my parents as to whether this had happened before. It was at this time, that they revealed to me that they had been threatened on numerous occasions in the lead up to my visit.18.These threats generated much concern for my personal safety and I feared that any trip I took outside of my family home could result in serious injury.19.Accordingly, I spent the rest of my trip refusing to leave my house, except for visits to religious temples as I knew that my brother's in laws would not try to hurt me in a place of worship.20.I was able to leave India unscathed as my refusal to enter public places meant that my brother's in laws were never provided an opportunity to inflict harm upon me.21.My brother's in laws have connections with some very bad people and given the financial benefit they are at stake of receiving should I be killed, they will be willing to pay or engage with whatever or whoever is necessary in order to hurt me.22.My brother's in laws continue to harass my family and ask about my whereabouts.23.Should I return to India, even if I relocated, my brother's in laws would find out about my location, because they would keep questioning those close to me about my return. They have already engaged in bullying of people in my community about my whereabouts in case I have already returned to India, without their knowledge.24.Our entire community knows of the issues and fights between my family and my brother's in laws. Should I return to India, there are many people who if they were to spot me would inform my brother's in laws in order to gain some financial reward or to carry favour with my brother's in laws. I camnot live the rest of my life in India in fear that I will be noticed by someone from my community.25.My brother's in laws are hoping that by making these threats that I will relinquish my rights to my properties and just hand it over to my brother, which will mean as a result that [Ms A] will obtain rig ts and access to the property as well. These properties and lands have been in my family for a very long time. My grandfather and father worked very hard for decades to build up our family's asset pool and their hard work should not be forfeited because of the thuggery of my brother's in laws.26.My brother can't divorce his wife because he lives in great fear of what his in laws will do to him and to other members of our family should he put an end to his marriage. He has been told by [Ms A] that her family will carry out revenge if he was to divorce her. My brother does not want to put my entire family's life in greater danger.27.My family have reported these repeated threats to the police. However, the police have informed us that since we have not yet been attacked that they are powerless to assist in the matter, due to the high volume of cases that they are dealing with.28.The matter was referred to community leaders but my brothers' in laws refused to take the matter seriously and made empty promises about stopping the threats.29.My brother no longer lives with his wife but they do communicate on the phone due the tensions caused by their respective families fighting. My brother has been able to confirm in these phone calls that the threats that have been communicated towards me are stilling being made and that should I return to India I remain a target to be killed.30.Recently in my village there has been a number of deaths resulting from family disputes about division of assets and property allocation. It is common for people in my village to lose their lives because of the property they own. I do not wish to become one of these murdered individuals.31.I have not previously applied for protection in Australia as I was previously on a valid student visa which allowed me to stay legally in the country. This visa unfortunately expired when I was unable to stay enrolled in my course for a short period of time due to a racially fuelled attack which I was subject to.32.I intend to submit a further supplementary statutory declaration.

Decision

Reasons for decision

When this issue is considered in conjunction with my other credibility concerns (discussed further below), I find that this extended delay in applying for a protection visa of more than four years (between when he claimed to have learned his life was at risk in India in 2012 and lodging the protection visa under review in 2016) is not indicative of someone who fears for their physical safety. I do not accept that [the applicant] did not know about Australia’s protection visa system until 2016. I find that that [the applicant]’s persistence in pursuing various other (temporary) visa avenues rather than seeking protection earlier than he did, strongly suggests that he did not have a well-founded fear of persecution for the reasons claimed and that he made the protection visa application only when he had few other options to remain in Australia.Conclusion on the claimed fear of harm from in relation to a dispute with his younger brother and/or his brother’s wife’s family As noted above, I have serious concerns about the credibility of [the applicant]’s evidence relating to his claimed fear of harm from his younger brother and/or his brother’s wife’s family and/or their agents in India, including in relation inheritance issues. I note that [the applicant] provided evidence that was at various times hesitant, vague, evasive, incoherent and contradictory when questioned about specific details of his claims. As detailed above, this included evidence relating to the origins and reasons for the claimed dispute with his younger brother; when, why and how his brother had turned against the family; specific aspects of the claimed incident in India in 2012 where [the applicant] says his life was threatened; the general timeline of events that had given rise to the claimed dispute with his brother’s wife’s family; the reasons why specific threats were made against him; issues relating to the police’s involvement after the claimed incident and the reasons why there had been such a long delay in him applying for protection after the incident had taken place I am mindful that memories can be dimmed by the passage of time. I accept that it is not always possible or necessary for an applicant to remember specific details or dates. Even when making allowances for such factors, given the highly significant nature of the events being discussed regarding the serious threats he claimed to have been subjected to (and taking into account that [the applicant] is a tertiary educated man), I have formed the view that it could be reasonably expected that [the applicant] would have had a more precise and coherent recollection of the specific details relating to his claimed fear of harm in India. Considering all of the evidence cumulatively, and having regard to [the applicant]’s personal circumstances and narrative as a whole, I do not find him to be credible. I note that there is very little documentary evidence to corroborate any of [the applicant]’s claims. I find various aspects of [the applicant]’s evidence in relation to having been threatened by his younger brother and/or his brother’s wife’s family and/or their agents in India, including in relation to an inheritance dispute, to be improbable, illogical, and ultimately, implausible. For these reasons, I do not accept that [the applicant] was ever threatened, harassed or pursued by his younger brother and/or his brother’s wife’s family and/or their agents in India and/or the Indian authorities or anybody else in relation to a family dispute or for any other reason. As is noted above, I find the long delay in applying for protection is not indicative of someone who has a well founded fear of persecution. It follows that I find that [the applicant] would not a face a real chance of serious harm amounting to persecution for reasons relating to a dispute with his younger brother and/or his brother’s wife’s family and/or their agents in India, or for any other reason, if he was to return to India in the reasonably foreseeable future. I find that [the applicant]’s fears of persecution on this basis are not well-founded.Issues related to [the applicant]’s health

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.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.ANALYSIS OF EVIDENCE AND FINDINGSCredibility I acknowledge the importance of adopting a reasonable approach when making findings of credibility.[1] However 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. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[2][1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70 I note that there were significant credibility issues arising from specific information provided by [the applicant]. As a result, I have serious concerns about the reliability of [the applicant]’s evidence about his claims relating to his fear of harm from his younger brother and/or his brother’s wife’s family, including in relation to a dispute about inheritance. I note that [the applicant] provided hesitant, vague and at times inconsistent and contradictory evidence when questioned about specific details of his claims. His responses were often evasive, generalised and/or off-point. This included evidence relating to the origins and reasons for the claimed dispute with his younger brother; when, why and how his brother had turned against the family; specific aspects of the claimed incident in India in 2012 where [the applicant] says his life was threatened; the general timeline of events that had given rise to the claimed dispute with his brother’s wife’s family; the specific threats made against him and the reasons why; issues relating to the police’s involvement after the claimed incident and the reasons why there had been such a long delay in him applying for protection after the incident had taken place (discussed in further detail below). As detailed above, I explained to [the applicant] at the hearing that I had significant, specific concerns about his credibility and various aspects of his evidence and gave him an opportunity to respond.Delay in seeking protection