1901310 (Refugee)

[2024] AATA 4000

1901310 (Refugee) [2024] AATA 4000 (15 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901310

COUNTRY OF REFERENCE:                   India

MEMBER:Alan McMurran

DATE:15 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 15 July 2024 at 11:58am

CATCHWORDS
REFUGEE – protection visa – India – decision on the papers – political opinion – activist for the rights of Dalits – supporter of Jignesh Mewani – attendance at Dalit rallies – insufficient information before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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 lodged 20 January 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 17 January 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, [the applicant] and his spouse, [secondary applicant], who claim to be citizens of India, applied for the visas on 28 April 2018.

3. The applicant is [age] years old and the secondary applicant [age] years old. They both arrived in Australia on Tourist visas [in] February 2018, and have remained since that time.

   Claims and evidence

4. In his protection visa application to the Department, the applicant made the following claims contained in a personal letter, and then explained at a Department interview.

5. The secondary applicant makes no claims of her own.

6. In his letter, the applicant asserts that he was an activist for the rights of Dalits, formerly known as ‘untouchables’ and a “die hard” supporter of an elected Member of Parliament, Jignesh Mewani, with whom he had organised “many agitations together” which exposed anti-Dalit policies of the Government. The applicant asserts that violence and police arrests followed protest rallies in July 2016 in the town of [Town 1], Gujarat State.

7. After the election won by Mr Mewani, those attending the Dalit rallies were harassed and “beaten in police stations on false charges”, “homes were attacked” and “female relatives molested”. The applicant left India because he was “unable to tolerate the state sponsored persecution”. He gave some details of the claimed violence against the Dalits by police, and the subsequent public protests in [Town 1] and police arrests and a further large rally in [Town 1] held in August 2016, attended by 20,000 Dalits.

8. At his Department interview on 20 December 2018, he claimed to have attended a Dalit protest on 13 July 2016, organised by Mr Mewani. He then denied knowing Mr Mewani personally, just that he was a “supporter”. He claimed he had been held by police for 2 hours with others following the protest. He denied having organised any protests himself. He asserts he was never threatened personally, just generally together with rally supporters. He states by 2017, he had “lost interest” in politics and elections and was never a member himself of any political movement. He is afraid he will be harmed if he returns to India because he supported Mr Mewani during the election.

9. There was no independent information submitted to support the applicant’s claims, such as photographs, witness statements, media reporting or country information.

   Department decision

10. The delegate found inconsistencies with the applicant’s written statement and his interview answers, aligned against country information about the 2017 Gujarat election. The delegate did not accept the applicant was a ‘supporter’ of Mr Mewani, or indeed involved in any political activities in India. The delegate noted the 13 July 2016 date given by the applicant as a rally date organised by Mr Mewani was in conflict with reports about a march organised by Mr Mewani on 31 July 2016. The delegate found there was insufficient detail of any involvement by the applicant at a claimed rally on 13 July 2016, including whether he had ‘run away’ and whether he had been arrested at all, as he had claimed. At interview, the applicant claimed he had never been threatened personally or harmed and nothing had happened to him in 2016 ‘or later’ after the 2017 election. Given the inconsistencies in the applicant’s written statement and at interview, the delegate did not accept the applicant had given ‘a truthful account of his circumstances’.

11. The delegate was not satisfied that there was a real chance that if he returned to India, the applicant will be persecuted for one or more of the reasons mentioned in s5J(1)1a) of the Act. The delegate was not satisfied that the applicants are refugees as defined under s 5H(1) of the Act and found that they are not persons in respect of whom Australia has protection obligations under s 36(2)(a). The delegate was also not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s36(2)(aa) of the Act.

    The review application

12. On 20 January 2019, the applicants applied for a review of the delegate’s decision to the Tribunal.

13. On 27 May 2024, the Tribunal wrote to the applicants advising that it had considered all the papers relating to their application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 27 June 2024.

14. On 4 June 2024, the applicant wrote to the Tribunal, stating:

    I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear.

15. The response further indicated that the secondary applicant also would not appear, and that the applicant did not intend to rely on any documents such as written witness statements, written submissions, country information, or other evidence.

16. The Tribunal has therefore determined this matter on this review on the evidence available to the Tribunal at the time of decision.

    CRITERIA FOR A PROTECTION VISA

17. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

18. 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.

19. 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).

20. 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.

21. 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.

22. 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’).

23. 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

24. 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

25. 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.

26. 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. Written statements by an applicant such as have been made in this instance carry little or no weight as evidence of any actual claims.

27. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. 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: s 5AAA. 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, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

28. The Tribunal finds that there are significant problems with the applicant’s claims. The written and oral evidence presented by the applicant to the Department is not sufficient or sufficiently detailed and persuasive to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution in India, or 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.

29. There has been a relatively significant passage of time since the applicant last provided the Department with information in relation to the applicant’s claims in April and December  2018, and since the delegate refused the application in January 2019.

30. The applicants have not provided any further and updated information since lodging their application for review with the Tribunal and, as already noted, the applicants have declined the Tribunal’s invitation to give oral evidence and present arguments at a hearing. Equally, they have not chosen to submit any further information since the Department decision, for the Tribunal to consider.

31. The Tribunal is satisfied that there is insufficient information before it to determine whether the applicant continues to hold any fears in relation to his claimed political activity in 2016. It is also unclear if any action has been taken by police in India or by anyone at all to indicate that they hold any adverse interest in the applicant in connection with his claimed political activity.

32. Similarly, on the available information the Tribunal finds that the applicant no longer associates with any political activity and is not a member of any political group or party and does not intend to conduct any political activity if returned to India.

    Summary

33. Given the lack of information identified above, and without more detail, little weight can be attached to the applicant’s historical assertions mentioned above. The Tribunal is not satisfied accordingly, on the current evidence, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal is not satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, in this instance, India, that there is a real risk that the applicant will suffer significant harm.

34. The secondary applicant makes no claims of her own and is dependent for her visa application on the outcome of the findings in respect of the applicant’s claims.

    Conclusion

35. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.

    Family membership

36. It follows that the applicants are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

    DECISION

37. The Tribunal affirms the decision not to grant the applicants protection visas.

    Alan McMurran
    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.

    …