1923463 (Refugee)

1923463 (Refugee) [2022] AATA 5159 (8 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sanjay Parashar
CASE NUMBER:  1923463
COUNTRY OF REFERENCE:                   India
MEMBER:Mark Bishop
DATE:8 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 December 2022 at 12:53pm
CATCHWORDS
REFUGEE – Protection visa – India – current dispute as to land title – claims do not have a credible basis – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 1 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India applied for the visa on 27 February 2017. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 8 December 2022 to give evidence and present arguments. The review hearing was conducted in English and Punjabi with the aid of an interpreter.
The applicant provided a copy of the decision record to the Tribunal.
The applicant was represented in relation to the review by legal counsel
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The applicant arrived in Australia on [date] May 2016 as the holder of a Temporary work (subclass 420) visa. Thereafter he held 3 Tourist visas. On 27 February 2017 he lodged an Application for a Protection Visa.
The applicant’s protection claims are as follows:
·While in Australia, the applicant’s family received threatening phone calls from [Mr A], [Mr B], [Mr C] and [Mr D], all of whom are builders with good political connections and criminal backgrounds.
·These individuals want to claim the applicant’s family residence and are threatening to kill the applicant’s family if they do not vacate.
·The applicant cannot seek protection from anyone because these individuals are very well connected.
The delegate made the following findings:
·The applicant claimed that four individuals seek to illegally acquire his family’s residence and are threatening to harm the applicant. However, the written material in the application lacks substance and details. The applicant was provided with the opportunity to give further details on these claims in a letter dated 02 July 2019 and failed to do so.
·The written claims do not include details of key events that led the applicant to leave India and why there is a real chance of serious harm upon return to India. The applicant also did not provide any evidence of substance to support their written claims or demonstrated how the harm is personal to them.
·The applicant’s failure to provide details about these claims raises concerns about their credibility.
·The applicant claimed in his application that he has been unemployed since May 2016 and did not provide information regarding how he supports himself in Australia. The applicant was provided with the opportunity to give further details of how he supports himself financially in Australia in a letter dated 02 July 2019 and failed to do so. The applicant’s failure to provide these details raises serious concerns in my mind that the applicant is working in Australia in breach of his visa conditions.
·I have considered individually and cumulatively the above concerns regarding the applicant’s claims. I am satisfied that these claims were put forward by the applicant in a bid to remain in Australia for purposes not related to Australia’s protection obligations. I find that the applicant is not a witness of truth and reject their claims in their entirety.
In his Application for a Protection Visa dated 18 February 2017 the applicant declared as follows:
·His date of birth was [date].
·He was born in , [City 1], Punjab India.
·He speaks reads and writes English. He speaks reads and writes Hindi. He speaks and reads Punjabi.
·At date of application in Australia he was unemployed.
·His parents and a sibling were born in [City 1], Punjab India.
·He entered Australia as the holder of a tourist visa issued 8 December 2016 valid until 15 February 2016 for entertainment and tourism purposes.
·He was self-employed as a [occupation] from April 2014 until May 2016.
·He completed [Secondary] School to grade 12 [level].
·He particularised his claims for protection as follows:
oI came to Australia as a tourist visa. After I came here my family told me that they received further threatening calls from [Mr A], [Mr B], [Mr C] and [Mr D] all of whom are builders with very good political connections in India with the ruling party. They all have criminal background and are known to usurp properties of innocent people on some pretext or other.
oI shall be harmed or killed. The party of four people mentioned above have been claiming that the house that my family has been living in for the past 100 years is in fact their ancestral property. This is a totally baseless and false claim and in spite of them not having any evidence whatsoever, they are threatening to harm and/or kill us if do not vacate the same.
oThe party who is threatening my family has political connections and therefore I do not think I can seek any help within India from anyone. The opposite party has connections everywhere in the country. My family and I have been threatened before and therefore I think I shall be harmed or even may be killed for our property.
·The applicant did not receive assistance from an interpreter or anyone else to complete his application.
On 4 November 2022 the Tribunal wrote to the applicant and requested he attended a hearing on 8 December 2022. The Tribunal requested the applicant “Please provide all documents you intend to rely on to support your case by 1 December 2022.” On 16 November 2022 the applicant provided a Response to hearing Invitation form. In that document he advised he advised he did not intend to rely on any documents.
On 1 December the applicant wrote to the Tribunal and requested an adjournment because the applicant had been unable to contact his previous agent and was awaiting a FOI response. On 1 December 2022 the Tribunal provided the FOI response and wrote to the applicant and advised same. On 7 December 2022 the applicant provided an updated Response to hearing Invitation form and advised he did not intend to rely on any documents.
Prior to the hearing the applicant did not provide a written submission to the Tribunal.
The Tribunal notes that the Departmental and Tribunal files disclose the applicant has received numerous request to provide documentation. The applicant has not provided requested documentation to the Department or Tribunal.
In evidence the applicant advised the Tribunal as follows:
·He arrived in Australia in May 2016 as the holder of a Tourist visa and has not departed this country since that time.
·He currently lives in [a city], works as a [occupation], lives with friends and earns approximately $500 per week. His cousins [provide] him with additional financial support.
·His sister is married and has departed the family home to live with her husband’s family.
·Both his parents are alive. His father is a farmer and owns agricultural land.
·His command of Hindi is limited. He speaks reads and writes English. He was educated in the village school until year 8. Thereafter he completed his secondary school education via correspondence.
·He advised his family had owned, occupied and farmed the same land for in excess of 100 years. Land passed through the male line from son to son.
·There is currently a dispute as to title to the land and it is working its way through the Indian land and legal system. The case has been ongoing since at least 2015. He did not advise of any anticipated court conclusion date.
·He advised his family had been threatened because of the ongoing disputation as to land title. These threats were reported to the police and the relevant court.
·The applicant did not have any court documents, affidavits, certificates of title or statutory declarations made in relation to the court case.
·The applicant did not have copies of any police reports relating to the threats of violence or possible assaults.
·He described his family as middle class. His family have lived in his village for well over 100 years. As is common in India his father’s family and father sibling brothers live in the same house. As a boy growing up he advised there were 12 persons living in the house.
·He advised the Tribunal his father had told him to stay and settle in Australia.
·His family still live in and occupy the same home and land the family has owned for over 100 years.
·His father advised him of an incident of assault in court. His father advised him to remain in Australia as he might be harmed or killed if he returned to India.
The solicitor for the applicant advised the Tribunal the applicant had received poor quality assistance in the past. The solicitor for the applicant advised the Tribunal the applicant had not provided him with any documents and he did not have any documents to provide to the Tribunal.
The Tribunal has considered all the material on both the Departmental and Tribunal files. The Tribunal examined the applicant in depth. The Tribunal has given consideration to the evidence of the applicant.
The applicant advises there is a current dispute working its way through the Indian legal system concerning to title to a parcel of land and large house owned and occupied by his family for generations in India. The applicant advise the Tribunal he was unable to provide any documentation or any kind relating to this court action, any court disputes, reports to police concerning alleged assault or reports from doctors or medical people attending to cuts or bruises arising from these alleged assaults.
The applicant failed to provide any correspondence, emails, letters, copies of text exchanges, details of phone calls, copies of witness statements or copies of any material that might have addressed the reasons set out in his Application for a Protection Visa.
It appears to the Tribunal that is there is a current dispute as to land title. That land title dispute is over land that has been in the applicant’s family for over a hundred years. That dispute is a current issue in the Indian legal system. The applicant did not express any dissatisfaction with the administration of justice in India or the process and progress of the particular land dispute title. The applicant did not express any concerns as to the outcome of reports made to the police. The applicant advised his family still live in the house and farm the land. It is clear that whatever the veracity of the alleged threats on or around 2016 and perhaps since that those years the threats have been of little practical effect.
In this context it is clear the Indian legal system, court system and police system are addressing the complaints.
The applicant did not provide submissions or attachments that address s 5H Meaning of refugee and s 5J Meaning of well-founded fear of persecution of the Act.
The Tribunal finds that the applicant does not have a well-founded fear of persecution and his claims do not have a credible basis.
The Tribunal finds there is little chance that he will be harmed for any of the reasons he has claimed. The Tribunal does not accept that he would be significantly harmed on the basis of things he has claimed. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a). Having concluded that the applicant does not meet the refugee criteria, the Tribunal has considered the alternative complementary protection criteria. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
At the conclusion of the review hearing the applicant advised he was satisfied with the quality of the interpreting service provided by the Tribunal.
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is 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 applicant a protection visa.
Mark Bishop
Senior Member
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 5159

8 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction