1909589 (Refugee) - [2024] AATA 1381

1909589 (Refugee) [2024] AATA 1381 (13 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1909589 & 2104139
COUNTRY OF REFERENCE:                   India
MEMBER:Penelope Hunter
DATE:13 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal:
i.affirms the decision not to grant the applicant a Temporary Protection visa in matter 1909589 made on 21 August 2017; and
ii.sets aside the decision in matter 2104139 to refuse the applicant a Safe Have Enterprise visa, application made on 10 October 2020 and substitute it with a decision that the visa application was not valid.

Statement made on 13 February 2024 at 10:39am
CATCHWORDS
REFUGEE – protection visa – India – particular social group – land dispute with cousin – credibility concerns – inconsistent evidence – effective protection measure – localised chance of harm – internal relocation – decision under review affirmed
REFUGEE – protection visa – India – arrival in Australia by sea – Territory of Ashmore and Cartier Islands – Part 7-reviewable decision – section 91K bar not applicable – validity of second visa application – section 48A bar not lifted – invalid visa application – decision under review substituted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5AAA, 5H, 5J, 5L, 36, 46A, 48A, 48B, 65, 91K, 411, 427
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Re Gustavo Carlos Saavedra Morato v the Minister of Immigation Local Government and Ethnic Affairs [1992] 39 FCR 401
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant claims to be a citizen of India.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] May 2013. He was initially considered an unauthorised maritime arrival (UMA) as defined in s 5AA of the Act due to the method of his arrival to Australia, and was subject to s 46A of the Act.
The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person…

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 1909589 (Refugee)

Details

AGLC: 1909589 (Refugee) [2024] AATA 1381
Case: [2024] AATA 1381
Decision Date: 13 February 2024

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant, an Indian citizen, a protection visa. The applicant arrived in Australia by sea in May 2013 and was initially considered an unauthorised maritime arrival. Following a previous Temporary Protection visa application that was refused and subsequently reviewed by the Immigration Assessment Authority, the applicant sought further review in the Federal Court. The Minister later withdrew from proceedings and purported to lift statutory bars, allowing the applicant to make a second protection visa application, this time for a Safe Haven Enterprise visa.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether he was owed Australia's protection under the refugee or complementary protection criteria. This involved assessing the credibility of his claims regarding a land dispute with his cousin, Mr. A, who allegedly engaged in criminal activities including alcohol smuggling and had threatened the applicant and his family. The court also had to consider the validity of the applicant's second visa application, given the operation of section 48A of the Migration Act 1958 (Cth) and the Minister's subsequent determination under section 48B.

The court accepted the applicant's identity and nationality based on submitted documentation. However, it found significant concerns regarding the reliability of the applicant's evidence, noting that the applicant had not satisfied the onus of proving all statutory elements of his claim. The court highlighted that the mere assertion of fear does not establish its genuineness or that it is well-founded, nor does it automatically confirm a real risk of significant harm. The court also considered the provisions for complementary protection under section 36(2)(aa) of the Act, which applies if Australia has protection obligations due to a real risk of significant harm upon removal.

The decision under review was affirmed. The court found that the applicant's claims were not sufficiently substantiated to meet the threshold for protection. The court also determined that the second visa application was invalid because the section 48A bar had not been effectively lifted by the Minister's determination under section 48B, as the conditions for its application were not met. Consequently, the court substituted the delegate's decision with a decision that the second visa application was invalid.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND The applicant claims to be a citizen of India. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] May 2013. He was initially considered an unauthorised maritime arrival (UMA) as defined in s 5AA of the Act due to the method of his arrival to Australia, and was subject to s 46A of the Act. The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. The applicant applied for a Temporary Protection visa (TPV) on 21 August 2017 (the first visa application). A delegate of the Minister decided to refuse to grant this visa on 29 March 2018. On 29 March 2018, the Department referred the matter to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision. On 27 April 2018, the IAA affirmed the decision under review. The applicant sought a further review before the Federal Court. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not considered an UMA due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a TPV is not a ‘fast track decision’ (as defined in s 5(1) of the Act). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411. On 23 January 2019, the Minister withdrew from the Federal Court proceedings. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a protection visa, this time a Safe Haven Enterprise visa (SHEV) (the second visa application) on 10 October 2020.

Evidence

Evidence Before The Court

The decision under review, the applicant’s first visa application, remains a valid visa application and the issues that arise on review are whether the applicant is owed Australia’s protection under the refugee or complementary protection criteria contained within the Act. CLAIMS AND EVIDENCE The applicant was born in [year] in Nagaur district, in the state of Rajasthan, India. He claims to be of Jat ethnicity and to follow the Hindu religion. He was educated until year 9 level and claimed to previously have worked in agriculture. He is married and has [number] children. His wife, children, parents and siblings all continue to reside in India. Entry interview Following his arrival in Australia, the applicant participated in an Irregular Maritime Arrival Entry Interview with an officer of the Department on 28 June 2013. TPV application As part of his first visa application, the applicant submitted photocopies of his Indian Income Tax Identity card and his Indian driver’s licence. He claimed that prior to his arrival in Australia he had resided primarily in his home village in Didwana Tehsil, Nagaur district, with the exception of periods in [Town 1] in Nagaland while working in 2009 for a few months and then for three weeks in 2011. The applicant claimed to have worked in agriculture in India from 2005 to 2011. From 2011 to February 2013 he claimed to be unemployed and supported by friends. He also provided a statement which set out the following claims:i.In India the applicant owned a [business] with his cousin, [Mr A]. They bought the land, located in Didwana Tehsil, Nagaur district, Rajasthan, together in 2009. The land was in two or three parcels, some in his village and some on the other side of the village. The land was used for agriculture. They had a contract and it was agreed that the work and the profits would be shared.ii.They worked on the land and after some time they fought as [Mr A] was selling the agricultural produce and also the land for people to live on. He was not giving the applicant a share of the profits. Their arguments began in 2011 and they had two or three fights. [Mr A] broke the applicant‘s tractor and then his bike. iii.After the agricultural season in 2011, the applicant asked [Mr A] for the money he was owed, [Mr A] became angry and attacked the applicant with a glass bottle. He sustained an injury to his eye. iv.After the agriculture season in 2012, he again asked [Mr A] for the money. [Mr A] and approximately five men came on cars and motorcycles and attacked him with a rod. He suffered an injury to his eye, hand and foot. He has scars from these attacks. v.After the second time he was attacked in 2012, [Mr A] went to his home and said abusive things and that he would come back in the evening to kill him. During the night [Mr A] came again with four or five vehicles of men. [Mr A] was carrying weapons including rods and swords and broke the front door down. Upon seeing [Mr A] approach, the applicant fled out the back door and caught the train to Calcutta. He left his home [in] February 2013. He flew to [Country 1] on [date] February 2013 and cannot recall if he then left India from Calcutta or Bombay. On [date] or [date] March 2013 he flew to [Country 2] by plane, and then he travelled by boat to Australia. vi.[Mr A] also ran an alcohol smuggling business in Haryana, Rajasthan, Gujrat and Delhi and has connections in these areas. He had seen some of the men with [Mr A] in the newspapers or on the news where they were referred to as criminals who smuggle alcohol. They also drove the same cars as the criminals he saw on the news. He had also been told by other people that the men that [Mr A] associates with are criminals. vii.He tried twice in both 2011 and 2012, to tell the police when [Mr A] attacked him. They would not listen and they never came to visit the applicant because [Mr A]’s friends are powerful men. He did not go to the Indian Government because [Mr A] is connected to powerful people and he did not think that they would help him. viii.His wife told him that after he left India, [Mr A] went to his house and threatened his wife and children to tell him where the applicant was. His wife and children left the house and moved to a different part of Nagaur district. ix.If he returns to India he is afraid that [Mr A] will kill him. He believes that [Mr A] will kill him even though he sold their land. The land was sold to a colony who live on it, and [Mr A] lives in one of the three houses that he has built on the land. x.[Mr A] has a lot of connections in different parts of India due to his smuggling business. The applicant is afraid that if he lived anywhere else in India people would recognise him and tell [Mr A] where he was. They would recognise him because [Mr A]’s business associates met the applicant when he was working on the land with [Mr A]. Department decision

Decision

Reasons for decision

As part of his first visa application, the applicant submitted photocopies of his Indian Income Tax Identity card and his Indian driver’s licence. He claimed that prior to his arrival in Australia he had resided primarily in his home village in Didwana Tehsil, Nagaur district, with the exception of periods in [Town 1] in Nagaland while working in 2009 for a few months and then for three weeks in 2011. The applicant claimed to have worked in agriculture in India from 2005 to 2011. From 2011 to February 2013 he claimed to be unemployed and supported by friends. He also provided a statement which set out the following claims:i.In India the applicant owned a [business] with his cousin, [Mr A]. They bought the land, located in Didwana Tehsil, Nagaur district, Rajasthan, together in 2009. The land was in two or three parcels, some in his village and some on the other side of the village. The land was used for agriculture. They had a contract and it was agreed that the work and the profits would be shared.ii.They worked on the land and after some time they fought as [Mr A] was selling the agricultural produce and also the land for people to live on. He was not giving the applicant a share of the profits. Their arguments began in 2011 and they had two or three fights. [Mr A] broke the applicant‘s tractor and then his bike. iii.After the agricultural season in 2011, the applicant asked [Mr A] for the money he was owed, [Mr A] became angry and attacked the applicant with a glass bottle. He sustained an injury to his eye. iv.After the agriculture season in 2012, he again asked [Mr A] for the money. [Mr A] and approximately five men came on cars and motorcycles and attacked him with a rod. He suffered an injury to his eye, hand and foot. He has scars from these attacks. v.After the second time he was attacked in 2012, [Mr A] went to his home and said abusive things and that he would come back in the evening to kill him. During the night [Mr A] came again with four or five vehicles of men. [Mr A] was carrying weapons including rods and swords and broke the front door down. Upon seeing [Mr A] approach, the applicant fled out the back door and caught the train to Calcutta. He left his home [in] February 2013. He flew to [Country 1] on [date] February 2013 and cannot recall if he then left India from Calcutta or Bombay. On [date] or [date] March 2013 he flew to [Country 2] by plane, and then he travelled by boat to Australia. vi.[Mr A] also ran an alcohol smuggling business in Haryana, Rajasthan, Gujrat and Delhi and has connections in these areas. He had seen some of the men with [Mr A] in the newspapers or on the news where they were referred to as criminals who smuggle alcohol. They also drove the same cars as the criminals he saw on the news. He had also been told by other people that the men that [Mr A] associates with are criminals. vii.He tried twice in both 2011 and 2012, to tell the police when [Mr A] attacked him. They would not listen and they never came to visit the applicant because [Mr A]’s friends are powerful men. He did not go to the Indian Government because [Mr A] is connected to powerful people and he did not think that they would help him. viii.His wife told him that after he left India, [Mr A] went to his house and threatened his wife and children to tell him where the applicant was. His wife and children left the house and moved to a different part of Nagaur district. ix.If he returns to India he is afraid that [Mr A] will kill him. He believes that [Mr A] will kill him even though he sold their land. The land was sold to a colony who live on it, and [Mr A] lives in one of the three houses that he has built on the land. x.[Mr A] has a lot of connections in different parts of India due to his smuggling business. The applicant is afraid that if he lived anywhere else in India people would recognise him and tell [Mr A] where he was. They would recognise him because [Mr A]’s business associates met the applicant when he was working on the land with [Mr A]. Department decision

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCENationality and identity On the basis of the identity evidence submitted to the Department, including copies of his Indian Income Tax Department identity card and his driver’s licence from India, the Tribunal accepts that he is who he claims to be and that he is a citizen of India. The applicant’s claims will be assessed on this basis. Is the applicant a refugee? 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. As the decision-maker, the Tribunal is not required to make the applicant’s case for him. 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.). The Tribunal had several concerns about the reliability of the applicant’s evidence and considers that he has significantly embellished his evidence for the reasons discussed below.