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…

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 1911719 (Refugee)

Details

AGLC: 1911719 (Refugee) [2019] AATA 5923
Case: [2019] AATA 5923
Decision Date: 9 August 2019

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse the applicant a protection visa. The applicant, an unlawful non-citizen from India, claimed he feared persecution upon return due to his conversion to Christianity from Hinduism, alleging his family and religious organisations would harm or kill him. He also raised concerns about his mental health and the safety of his daughter, an Australian citizen. The Tribunal considered the applicant's identity and determined India to be the appropriate receiving country.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for a convention reason upon return to India, and whether his claims regarding his daughter's safety and his mental health were credible. The Tribunal was required to assess the applicant's evidence in light of the provisions of the Migration Act 1958, including the assessment of subjective fear and the credibility of the claims presented.

The Tribunal found the applicant's evidence to be vague, illogical, and lacking credibility, particularly noting that he had not experienced harm in India and had not returned since his arrival in 2009. The claim concerning his daughter's safety was dismissed as not credibly made, given she was an Australian citizen and not subject to return. The Tribunal concluded that the applicant did not subjectively hold the necessary fear of persecution.

The Tribunal affirmed the delegate's decision to refuse the protection visa.

Orders

Orders of the court

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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 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 EvidenceFirst 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.

Evidence

Evidence Before The Court

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 EvidenceFirst 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.

Decision

Reasons for decision

The Tribunal affirms the decision under review.Dr Colin HuntlyMemberORAL 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 EvidenceFirst 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:

Ratio Decidendi

Legal Principle Established

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