1910858 (Refugee)
[2019] AATA 5934
•25 July 2019
1910858 (Refugee) [2019] AATA 5934 (25 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1910858
COUNTRY OF REFERENCE: India
MEMBER:Denis Dragovic
DATE:25 July 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 25 July 2019 at 1:58pm
CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh convert to Christianity – fear of physical assault – Punjabi services in Australia – family reaction – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2Any 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 Immigration on 17 April 2019 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 8 February 2019. I have viewed copies of the passports of all four applicants and accept that they are all citizens of India.
The visa was refused on the basis that the delegate found the applicant not to be truthful and lacking general credibility. The delegate did not accept any of the applicant’s claims including that he had converted to Christianity, received any threats or had a strained relationship with his family.
CRITERIA FOR A PROTECTION VISA
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.
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.
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 themself 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).
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.
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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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
Summary of claims: The applicant, [an age] year old Indian male, accompanied his wife to Australia on a study visa in 2015. The applicant claims that he converted to Christianity being from a Sikh family. He claims that after posting on [social media 1] articles in support of persecuted Christians he received threatening phone calls. He fears that if he returns to India people in his community and his family will harm him, his wife and children. The second named applicant fears that her relatives will harm her for reasons arising from her husband’s claimed conversion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Consideration of evidence and findings of fact
The applicants fear harm based upon the claims of the first named applicant converting to Christianity. As such I will first consider whether there has been a genuine conversion to Christianity.
The first named applicant submitted a Certificate of Baptism dated [in] March 2019 with the location being [a detention centre]. I accept this as a valid certificate.
The first named applicant explained to the Tribunal that most of his friends in India were Christian. His interest in Christianity began then and he claimed that he changed his religion in 2014. He described the process by which he was baptised then as having his whole head dipped into water while inside a church.
He claimed that after his baptism he would regularly go to his friend’s house where there were functions on Sundays and he would go to church 1-2 times every two months. He claimed that he did simple prayers after his conversion.
He claims that since arriving to Australia in 2015 he has been ‘1-2 times’ to Church. He said that he didn’t go more often because he speaks Punjabi and struggles with English. I asked if there were Punjabi services in [his city]. He said no and that there weren’t any Punjabi Bibles. While in the hearing I used Google to search for “Punjabi Christian service [city]” and found [Church 1] has a Punjabi service. I put this to him. He said that he doesn’t know about that, adding that he didn’t want to go far from where he lives. I put to him that it appears that there are a lot of Punjabi Christian services and that he has not even searched for them and that this could lead me to question whether he is a genuine convert to which he responded that his main fear has been his lack of English and that is why he hasn’t done much. While I acknowledge that a lack of English language skills can be an impediment I note that the applicant arrived to Australia accompanying his wife on a [student] visa. Furthermore the applicant acknowledged that his wife wrote his protection visa application in English for him, which includes a narrative component. Had he wanted to attend church services the level of effort required would have been very low. All he had to do was turn to his wife for assistance, but he did not do so. As such the applicant’s lack of effort to seek out a Punjabi service let alone make the effort to attend one casts serious doubt in my mind about the applicant’s claimed commitment to Christianity.
I read to the first named applicant from his protection visa application in which he states that he became a Christian after his wife became sick in 2016 while at the hearing he had claimed to have converted while in India in 2014 and made [social media 1] posts in 2015. In response he said that it was the ‘second time I became Christian.’ He explained that there was a break in his attendance and observance of Christianity. Responding to this claim I read to him the next sentence in his application, ‘I converted from Sikh religion to Christian’ which infers that his conversion in 2016 was the first conversion.
The relevant section of the protection visa applicantion text as submitted without alterations being:
in middle of year 2016 my wife continuously feeling sickness.all those circumstances took me to be a Christian because I stared to believe in The Bible teachings then I relized that my wife’s health getting better. i coverted from Sikh religion to Christian.
He responded that he was Christian before but there may have been a problem in the translation. This response does little to allay my concern about the consistency of the applicant’s narrative. It appears that he has presented two different dates for his conversion along with different reasons for them. This leads me to further question the applicant’s claimed conversion to Christianity.
Under s.424AA I read to the first named applicant from the delegate’s decision record. It was recorded that he had claimed that he was baptized in India in 2017 and that his baptism involved putting a small amount of water on his head. I put to him that earlier in the hearing and at a different time in the interview with the delegate as recorded in the decision record he had said that he had been immersed in water. I explained that this is relevant to the review as it could lead me to question his credibility. The applicant took the opportunity for an adjournment. Upon reconvening he responded that in India they immerse individuals while in Australia they sprinkle water. I asked the question again, emphasizing that I was questioning the answer he gave in response to the process of his baptism and asked why he had changed his story. He claims that he was asked a question about how baptisms were done in general in India compared to Australia and not specifically regarding his baptism. I asked why he had claimed that he had been baptised in 2017 when in this hearing he was saying that it was 2014. He said that he didn’t tell the delegate any such thing. He said that maybe it was a misunderstanding. The applicant’s many and varied accounts of his baptism are vexing. His response that he was answering a generic question about baptism practices in India compared to Australia is not plausible. That he claimed to the delegate that his baptism was in 2017 while at the hearing he claimed it was in India in 2014 is troubling.
I asked if he had any documents supporting his claimed conversion in India. He responded that he didn’t have any paperwork.
Acknowledging that a piece of paper is not determinative of a conversion and the applicant’s memory could be affected by nerves I enquired about his faith journey. I asked the first named applicant, as a Christian what he intended to do and how he intended to live his life. He responded that his activities will be not much different to those as a Sikh. He mentioned doing prayers and remembering the Son of God. He said that he wants to do a lot of things in the future as a Christian but now he is just dealing with family issues. He acknowledged that he has never proselytized in Australia.
The first named applicant claimed that he did proselytize in India. He said that his friends used to have functions on Sundays and they would beat a drum preparing for hymns.
As the first named applicant referred to the Son of God I asked him if he knew the name of the Son of God. He did not. I put to him that it was Jesus and asked if he had heard that name before. He said that he knows of Jesus but the answer wasn’t coming to his mind. That the applicant was unable to name Jesus as the Son of God leads me to further question his claimed conversion.
The applicant claims that the risk to him began with threats in 2016. He applied for the protection visa on 8 February 2019. I asked the applicant about his delay in applying for a protection visa. He said that he learned about protection visas while in detention from ‘immigration people’. He said that he had never thought before about looking into ways to stay in Australia and seek protection. I put to him that if he was afraid for his life I would have thought that he would look at every opportunity of remaining. He said that a lot of things happened in a short period of his life but that wasn’t one that he thought about. This answer lacks plausibility. His wife was in Australia on a [student] visa and his brother lives in Australia having migrated himself from India. He has at least two if not more sources to which he could have turned to enquire through social networks or search online for opportunities to seek help. The implausibility of his answer adds further doubts in my mind over the applicant’s overall credibility.
The first named applicant claims that he used to have a [social media 1] account and before closing it down he posted on incidents against Christians. He claims that he only posted 2-3 times in 2015. He had no evidence to support these claims.
The second named applicant did not claim to have converted but said that she went to church once a month for a while. She claimed that as she was using public transport and because of the children it became very hard for her to continue. She said that she went alone 2-3 times in 2019 but had first started attending during her illness which was in 2016. She believes that she went 3-4 times to church with her husband.
In her evidence the second named applicant claims that others came to know about their involvement in Christianity when she posted a profile picture on [social media 1] in 2018. Her family didn’t know about their seriousness before then. The profile picture was of Jesus with a cross. I asked her when in 2018 but she did not know and then she said that it wasn’t [social media 1] but [social media 2]. I asked to see the post but she said that she had changed her phone number and so her [social media 2] account had changed.
She said that she had not received any threats but feared her family’s reaction if she was to return.
The first named applicant’s claims of conversion are inconsistent and his answers to questions unconvincing. He claims to be a Christian convert since, depending upon which answer he gave, as early as 2014 yet he didn’t know the name of the Son of God. His answers to the question of how and when he was baptised were lacking credibility. His answers to his baptism were inconsistent and unbelievable. He lacks any evidence for his claims other than a certificate of conversion acquired while in detention. His explanation for not having sought protection earlier stretches credulity. Overall I find that the first named applicant is not a credible witness.
The second named applicant gave evidence. She had no supporting documentation to add weight to her claims. Her narrative aligned with her husband’s. As I have found the first named applicant’s claims to be lacking credibility and with little additional probative evidence being provided by the wife I find that she too lacks credibility. I find that they have concocted their participation in church in India and Australia, I find that he did not attend any churches in India or Australia and that he falsified his claimed commitment to Christianity while in detention and as such do not accept any of the claimed conversions instead finding that it was for the sole purpose of seeking to remain in Australia.
As such I find that none of the applicants made a conversion to Christianity let alone a genuine conversion to Christianity. For this reason I do not accept that they told their parents or posted any material on [social media 1] or [social media 2] as claimed over the past few years. As such I do not accept that any threats arose from their parents, relatives or the wider community. I find that the applicants would face no animosity or enmity from their relatives, community or the state.
I find that the conversion while in detention was only for the purposes of furthering their protection claim. There is no claim and no evidence that the act of conversion while in a detention centre in Australia itself places the applicants at risk.
Submissions were received regarding the second named applicant’s medical history while in Australia. No claims were made nor do any arise based upon her health condition which has been treated.
The applicants, including the two children, had no further claims. No other basis for claims arises from the material. Based upon the available material I find that the applicants will not face a real chance of serious harm or a real risk of significant harm into the reasonably foreseeable future were they to return to India.
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. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Denis Dragovic
Senior MemberATTACHMENT - 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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Natural Justice
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