1911719 (Refugee) - [2019] AATA 5923

1911719 (Refugee) [2019] AATA 5923 (18 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1911719
COUNTRY OF REFERENCE:                   India
MEMBER:Dr Colin Huntly
DATE AND TIME OF
ORAL DECISION AND REASONS:         18 July 2019 at 1:49 pm (WA time)
DATE OF WRITTEN RECORD:                9 August 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision under review.

Statement made on 09 August 2019 at 3:55pm
CATCHWORDS
REFUGEE – Protection visa – India – unlawful non-citizen – mental health condition – religious conversion – Christianity – familial rejection – vague and illogical evidence – delay in lodging protection application– lack credibility – applicant did not subjectively have the necessary fear of persecution – – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 189, 424,
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIMA (1997) 190 CLR 225
MIAC v SZQRB [2013] 210 FCR 505
MMM v MIMA (1998) 90 FCR 324
MMM v MIMA (1998) 90 FCR 324
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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.
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 May 2019 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).
At the hearing on 18 July 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons.
STATEMENT OF DECISION AND REASONS
Attached to this decision record is a corrected transcript of the oral reasons for decision delivered in person to the applicant at the time of their delivery.
DECISION
The Tribunal affirms the decision under review.
Dr Colin Huntly
Member

ORAL DECISION OF MEMBER HUNTLY [1.15 PM]
This is an application for review of a decision, made by a delegate of the Minister for Home Affairs on 6 May 2019, to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).
Background
The Tribunal met with the applicant on three occasions. Firstly, on 17 June 2019, then on 9 July 2019 on which occasions, proceedings were adjourned to 18 July 2019. The applicant attended on all occasions to present evidence and make arguments. The applicant was assisted in each hearing with the services of an interpreter fluent and accredited in both the Punjabi and English languages. For the majority of time at hearings the applicant conversed with the Tribunal proficiently in the English language.
According to the applicant’s movement record he arrived in Australia [in] March 2009 on a Student [visa]. On 27 May 2010 his enrolment was cancelled for not attending classes and overdue tuition fees. The applicant was issued with a non-compliance notice on 24 June 2010. He claims that he never received this notice. On 15 August 2011 the applicant’s [student] visa ceased. At that point the applicant became an unlawful non-citizen in Australia.
[In] March 2018 the applicant was located by Australia Border Force compliance and detained under s.189 and thereafter transferred into administrative detention. On 6 April 2019 the applicant lodged an application for a protection visa. That application was refused on 6 May 2019. The applicant thereafter applied to this Tribunal for a review of that decision, the decision of the delegate referred to above.
Identity
The Tribunal has had regard to the Departmental files and information on which the decision of the delegate was based with respect to the applicant’s identity, including reference to the applicant’s Indian passport. On the basis of the evidence before it the Tribunal finds that the applicant is a citizen of the Republic of India. Having established this, the Tribunal finds that the receiving country with respect to the applicant for this review is India.
The Tribunal has no information to suggest the applicant has a right to enter and reside in another country beyond Nepal, due to the Treaty of Peace and Friendship. However, consideration of the necessity to relocate to that country has not been made for reasons that will be outlined in the decision below. Accordingly, consideration of s.36(3) of the Act has been duly considered, and the Tribunal is satisfied that the applicant’s return to India is appropriate in the circumstances.
Consideration of the Evidence
First Hearing
At the first hearing of the Tribunal I provided you with a copy of the delegate’s decision record and I made an adverse information warning under s. 424AA of the Act with respect to the findings and country information contained in that decision record. I then read to you the summary of your protection claims contained within it as follows:
You claim that since arriving in Australia you found a place where you can follow Christianity and in India you were not able to disclose this information due to extreme Hinduism reaction.
- You claim that Christianity is a religion of peace and pertinence and you started to follow it.
- You claim that your family who are devout Hindu followers will not permit you to change your religion. They will kill you if you change your religion.
- You fear your daughter’s life will be in danger if you are forcibly removed from Australia because of your religious conversion.
- You stated you have not experienced any harm in India.
- You claim you have never been back to India since your arrival in 2009.
- You claim that if you return to India you would face strong persecution or killed because of your religious belief and in particular your family will condemn your religious conversion.
- You claim you will be killed and harmed by religious organisations, your family and society who do not accept you to be Christian.
- You claim that 90 per cent of India’s population follow Hindu.
- You claim you could not relocate because of your acute depression and anxiety, therefore mentally hard for you to cope.
- You claim you could not relocate to Nepal because it would be easy for your family to find you.
The delegate also noted your claims relating to your mental health. I asked you at the first hearing if these points was a fair and accurate summary of your claims for protection and you said “Yes”. I asked you if you had anything to add to that summary of claims for protection and you said “No”. I asked you if you were content for me to continue on the basis of the information before me and you said “Yes”. I also noted receipt of certain additional country information that you provided relating to Hindu extremist attacks on Christians in India.
At the first hearing I asked you about your claims relating to the safety of your daughter. You confirmed that your daughter is an Australian citizen, born to an Australian citizen and you therefore accepted that she did not face return to India. Accordingly, I find that this claim was not credibly made by you.
Shortly after this, the first hearing was adjourned with respect to getting more information about your stated mental health status.
Second Hearing (adjourned and resumed)
At the second hearing you provided me with a large bundle of documents, which is effectively a printout of your entire medical history while in immigration detention. I note that this document bundle was discussed with you at the third hearing.
I note that your medical history discloses that you had resisted reducing your [Medicine 1] usage contrary to medical advice for some time and that only recently you have decided to reduce that to the recommended levels. I also noted that medical professionals had expressed concerns to you, in connection with excess [Medicine 1] consumption, about your excess weight given your father’s [medical condition], which led to his early death, for the reason that you may have inherited the same genetic risk factors.
I note that you are continuing to take [Medicine 2] and the medical advice in the file says that this relates to an anxiety issue, which you have described repeatedly in your interviews with medical professionals. I note that medical professionals have considered your claims to be depressed and suicidal and that you claim to have been hospitalised for this. I also note that you have never suffered [a specified medical condition]. You have suffered the stress in the context of relationship problems and your administrative detention.
The IMP summary that is relevantly expressed throughout these documents is that you are:
… malingering of mental health symptoms in order to get increased sedative medication, mixed borderline dependent personality traits, unhappy with your situation but not depressed, fit to fly, does not want to return to India. And there has been some reference to previous diagnosis with [a medical condition].
The symptomatology described by you is described by medical professionals as being “vaguely expressed and not convincing.”
On the basis of this information it appears appropriate to acknowledge that you have experienced some anxiety and that this is amenable to pharmacological and cognitive behavioural therapy interventions. I note that you have been involved in some cognitive behavioural therapy while in administrative detention and the reports from that are contained within the files are positive. I note that you have been compliant with regard to medication and treatment modalities.
Accordingly, there is no reason to believe that if you were returned to India that you would be unlikely to be compliant with medical treatment. For that reason I see nothing in the medical evidence presented to the Tribunal by you to support your assertion that you would be at risk of either serious harm for the purposes of s.36(2)(a) of the Act, or significant harm for the purposes of s.36(2)(aa) if you were returned to India now or in the reasonably foreseeable future for the essential and significant reason of your mental health condition.
With respect to your daughter’s status, I note that in the final hearing you expressed to the Tribunal evidence to the effect that you had received death threats from your family on account of your daughter being illegitimate and you not being traditionally married. I note that this was the first time you have expressed this in any forum in the process of your visa history and I pointed out to you that it was open to me to draw an adverse inference about the credibility of these claims, given the fact that you had made them so late in the process. Having considered your responses during the hearing I do find that I should take an adverse inference to the credibility of those late claims. I do not believe that they have been genuinely made by you.
With respect to Christianity and the treatment of Christians in India, I accept that you have engaged with the Christian faith while living in Australia. I accept that your engagement with the Christian faith could be most appropriately characterised as nominal and relatively discrete. In the past, you appear to have been a reasonably regular churchgoer and you have been in a long-term relationship with a woman who professes the Christian faith. Accordingly, I find that you have what can be reasonably described as a nominal Christian adherence.
I find that no credible evidence has been provided to the Tribunal that your interest in and engagement with Christianity has been the basis of any threats against you or would give rise to a genuine and well-founded fear of persecution in India for the essential and significant reason of being a nominal Christian.
I note in particular that the most recent DFAT country information report on India dated 17 October 2018 states at [3.12] to [3.15] as follows:[1]
A rise in Hindu nationalism has coincided with the increasing incidents of violence and discrimination against Christians.
…
DFAT assesses that most Christians live day to day without societal discrimination or violence. Christians engaged in proselytising or perceived to be proselytising, particularly to Hindus, face a moderate risk of official and societal discrimination and a moderate risk of societal violence.
[1]At p14.
There is nothing in the evidence provided to the Tribunal by you to suggest that you would be proselytising on behalf of the Christian faith in India or, indeed, that you have done so in Australia. Accordingly, there is nothing before the Tribunal to suggest that your activities or the practice of your faith in India, as you have practised it in Australia, would result in any societal discrimination or persecution.
With respect to familial rejection, I note that rejection or ostracism by one’s own family would not of itself usually constitute persecution. In the case of MMM v MIMA the applicant claimed that his family would disown him if they discovered that he was a homosexual. The court held that such treatment could not be regarded as persecution within the meaning of the convention as it is a purely private matter and the general standards of civilised countries do not suggest that adults, not under a disability, have a right to protection when for private reasons their families reject them.
Persecution for the purposes of the Convention connotes some official approbation of the feared conduct, or at least official failure or inability to do something about it, when the general standards of civilised countries would entitle the putative refugee to the protection of the State … There is nothing in such general standards to suggest that adults not under a disability have such an entitlement when, for private reasons, their families reject them.[2]
[2]MMM v MIMA (1998) 90 FCR 324 referring to Applicant A v MIMA (1997) 190 CLR 225 per Brennan CJ. His Honour’s reasoning is broadly consistent with the discussion of ‘protection’ and ‘persecution’ in the joint judgment of Gleeson CJ with Hayne and Heydon JJ in MIMA v Respondents S152/2003 (2004) 222 CLR 1.
Clearly, a family’s ‘private reasons’ in a ‘purely private matter’ may well relate to one or more of the Convention grounds. The point is that familial rejection, for any reason, is not the kind of detriment against which the state can be expected to provide protection. As Madgwick J observed, it is unlikely that any state would accept the responsibility of affording any person in the applicant's shoes either civil redress against his family or other amelioration of such a personal rift.[3] While in that case it did not involve consideration of the statutory test for persecution his Honour’s reasoning would suggest that familial rejection and familial pressure would be likely to fall well short of the statutory requirements.
[3]MMM v MIMA (1998) 90 FCR 324 at 327.
Your evidence to me was that you have family everywhere in India and that they would be able to find you no matter where and that in order to be safe you would have to disappear. I find those statements made by you to lack credibility given the geographic size of India; the demographic diversity of that country; your resourcefulness in having lived away from your family in India for over 10 years; and, your stated belief that your family in that country disapprove of your current religious and relational status. It is not credible that you would put yourself in harm’s way by involving yourself with your family in such circumstances if you genuinely apprehended harm from those persons. I do not accept based on the vague and illogical evidence that you have provided to the Tribunal that you would be required to be invisible if you were returned to India.
Having considered your religious claims, your familial claims, and your mental health claims individually and then cumulatively, I find that the harm you claim to fear if you returned to India does not rise to the level of serious harm for the purposes of s.36(2)(a) of the Act. I further find that the harm you claim to fear if you returned to India does not rise to the level of significant harm for the purposes of s.36(2)(aa) of the Act.
I have also, separately, considered the delay that has been exhibited in your application for protection. It is apparent from your migration history that there were a number of times at which it would have been reasonable for a person in your circumstances to approach the relevant authorities for assistance to regularise your migration status. For example:
·When your enrolment was cancelled in May of 2010 for non payment of tuition fees.
- After a non-compliance notice had been issued to you was another time at which it may have been reasonable to regularise your migration status, although I accept that you may not have received this notice because you failed to comply with your visa requirements by maintaining current address details with the Department.
- Certainly you acknowledged that in 2011 when your visa ceased, you had full knowledge of your change of religious beliefs; your relationship status; and, your unlawful status in Australia after August that year.
I asked you at the third hearing if you had ever considered approaching an agent, a lawyer, the Department, a travel agent, conducting an online search, approaching your university or disclosing your status to a priest. In each case you said you had not. When I asked you why you did not do any of these things, you said you were unsure of the process. I pointed out to you that this response lacked credibility. You did not respond to this observation.
I asked you when you feared return to India for the essential and significant reason of your religious conversion and you said from about 2015 when your daughter was born. Once again I note that there had been an inordinate delay from 2015 to April 2019 when you applied for protection. You were unable to explain your reasons for failing to seek protection beyond relying on your mental health issues and your unfamiliarity with the process. After considering all the evidence, including your responses, I find your responses to lack credibility.
It is reasonable to expect a person who has a genuine apprehension of serious or significant harm in their country of origin to seek assistance in a country at the first reasonable opportunity. I find that you have had many opportunities to seek help and you have approached no one. Nor have you turned your mind to the possibility of making such an approach. I find that this is inconsistent with a genuinely well-founded fear of serious harm subjectively held by an applicant for protection.
I note that, under s.36(2)(aa), a decision maker is entitled to consider whether an applicant has a subjectively well-founded fear of persecution before considering whether such a fear is objectively held or to proceed on the assumption that it is held. If a decision maker finds on the evidence that an applicant does not have a genuinely held subjective fear there would be no need to consider whether there is an objective basis for the claimed fear or indeed whether aspects of the claims are satisfied.
I note that in Iyer the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntarily and supported a conclusion the applicant did not have the necessary fear of persecution required by someone seeking refugee status. [4]
[4]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]. In Iyer, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it needed to go no further in its analysis of the basis of the claim. On appeal, the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 in which Cooper J, at [19], found that the question of objective fear does not even arise if no subjective fear arises on the facts of the case. Finkelstein J, dissenting, found at [38] that the Convention does not require an applicant to correctly specify the precise reasons as to why he or she has a well-founded fear of persecution, see also Carr J at [33]. However, in Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) the Court expressed the view that the subjective fear should be identified by an applicant (although not necessarily expressed in the language of Article 1A(2) of the Convention) and that the Tribunal is not required to speculate about subjective fears of an applicant for a protection visa: at [56]. Even if the Tribunal does not make an express finding that an applicant has no subjective fear of harm, findings that an applicant’s claims are not credible may ‘lead to the conclusion that the Tribunal did not believe that the applicant had a subjective fear of harm’, in which case the Tribunal is not required to go on to assess other aspects of the Convention definition: SZSSQ v MIBP [2013] FCCA 1762 (Judge Nicholls, 31 October 2013) at [38] and [48].

In your case the lengthy failure to regularise your migration status similarly supports a conclusion that you did not subjectively have the necessary fear of persecution and that you remained in Australia for your own purposes.
The court confirmed in Iyer that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated it did not need to go any further in its analysis of the basis of the claim and that decision was affirmed on appeal.
I note that if I make findings that your claims are not credible this may lead to the conclusion I do not believe the applicant held a genuinely subjective fear of harm. Where that is the case I am not required to proceed to assess other aspects of your claims relating to s.36(2)(a) of the Act. If on the other hand I find there is no objective fear of persecution there is no obligation to consider whether there is a subjective fear.
I have considered your claims that you have family everywhere in India and that you would be safe nowhere. I have found above that these claims on your part are unsubstantiated and not credibly made.
A person will be taken not to have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country. This qualification to a well-founded fear of persecution is contained in s.5J(2) of the Act. And the circumstances in which effective protection measures are available to a person are set out in s.5LA.
On the evidence before me, I find that there is no credible interest to indicate that you would face any adverse interest from agents of harm, including the State or other persons in India.
In terms of your anxieties about losing contact with your daughter if you were returned to India, I can understand that you have an ongoing desire to maintain a relationship with your daughter. There is nothing before the Tribunal to suggest that having re engaged in communication with your daughter recently that that would not continue.
Although you are separated from your former partner it appears that your relationship is reasonably amicable and that contact is not prevented between you and your daughter. And as an Australian citizen there is no reason to believe that your daughter would be unable to visit you in India, if that is where you reside for the foreseeable future.
Beyond the normal familial desire to maintain regular contact I find no particular aggravating circumstances that would cause such distress to rise to the level of significant harm for the purposes of s.36(2)(aa) of the Act, if you were returned to India.
On the basis of the evidence then I find that there is no real chance that you would be harmed by any person or any persons for any reason should you return to India now or in the reasonably foreseeable future. After taking these findings into consideration I find there is no real chance that you would suffer serious harm now or in the reasonably foreseeable future. On that basis I find that you do not meet the requirements of s.36(2)(a) of the Act, the refugee criterion.
Having found that you do not meet the refugee criteria in section36(2)(a) I have considered the alternative criteria of s.36(2)(aa). In the case of MIAC v SZQRB [2013] 210 FCR 505 the Full Federal Court held that a real risk test imposes the same threshold as the real chance test applicable to the assessment of well-founded fear and the refugee convention definition, which applies equally to s.5J of the Act.
As detailed above, I have engaged with your protection claims and found them not to be credible. I find that there is no real chance you will be harmed by any person or persons now or in the reasonably foreseeable future, if you were returned to India for any reason.
It follows based on the above reasons and findings I do not accept that there is a real risk that you would suffer significant harm from any person or persons or for any reason or for any reason evident on the claims of material as a necessary and foreseeable consequence of being removed from Australia to India. I am therefore not satisfied that you are a person in respect of whom Australia has protection obligations under s.36(2)(aa) pf the Act. Accordingly, I am not satisfied that you are a person in respect of whom Australia has protection obligations. Therefore, you do not satisfy the criteria for a protection visa set out in s.36(2) of the Act.
There is no suggestion that you satisfy s.36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or 36(2)(aa) and who holds a protection visa. It follows that you should not be granted a protection visa.
Decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
END OF ORAL DECISION [1.49 pm]