1926077 (Refugee)
[2021] AATA 5658
•21 October 2021
1926077 (Refugee) [2021] AATA 5658 (21 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1926077
COUNTRY OF REFERENCE: India
MEMBER:Dr Colin Huntly
DATE:21 October 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 21 October 2021 at 9:58am
CATCHWORDS
REFUGEE – Protection visa – India – genuine religious differences between applicant and roommate – ongoing threats from roommate and his associates – generalised fears of random violence that may occur to him – COVID-19 pandemic – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
CQG15 v MIBP [2016] FCAFC 146
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
SZSHV v MIBP [2014] FCA 253Any 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 13 September 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 30 January 2018. The delegate refused to grant the visa on the basis that his claims did not give rise to a well-founded fear of persecution as per s.5J(1)(a) of the Act for the purposes of the refugee assessment at s.5H of the Act. In the alternative, the delegate found that, even if the applicant’s implied claims were established, he did not face a real risk of significant harm on return to India because it would be reasonable for him to relocate to Mumbai or Delhi in either of which case, by virtue of s.36(2B)(a) of the Act, there would not be a real risk that the applicant would suffer significant harm.
The Tribunal has considered the applicant’s application for review of the delegate’s decision and has found, for different reasons, that the applicant does not engage Australia’s protection obligations.
BACKGROUND
Applicant migration history
The applicant first entered Australia on [date] August 2014 travelling on a [Student] visa. The applicant returned to India lawfully on [date] January 2016, returning to Australia on [date] January 2016.
The applicant applied for a protection visa in Australia on 30 January 2018. This application was refused by a delegate of the then Minister for Immigration and Border Protection by written decision dated 13 September 2019. The applicant seeks review of that decision by the Tribunal as presently constituted.
Proceedings before the Tribunal
The applicant’s request for an expedited hearing of his application was granted. The applicant appeared before the Tribunal to give evidence and present arguments on three occasions. Firstly, in person in the Perth Registry of the Tribunal on 17 June 2021, again by MS Teams videoconference from Sydney on 17 August 2021 and a third and final time by MS Teams videoconference from Sydney on 4 October 2021.
All hearings were conducted with the assistance of an interpreter fluent and accredited in the English and Punjabi languages. At the request of the applicant, an interpreter fluent in the English and [Country 1] languages was also in attendance during the third and final hearing. The services of this second interpreter were not required throughout the third hearing.
No subsequent submissions have been received from the applicant following the third and final hearing with the Tribunal as at the date of this decision.
Identity
The applicant provided a copy of his Indian passport to the Department with his application for protection. I have no reason to doubt the validity of this document. I have reviewed this passport and, as indicated above, have had the opportunity to interview the applicant on three occasions.
Based on the information before me, I find that the applicant is a citizen of India, which is also the receiving country for the purposes of the refugee and complementary assessments.
WHAT IS THE BACKGROUND OF THIS APPLICATION?
Introduction
Both the Department file and the Tribunal file for this application are extensive. At the time of this decision, the Tribunal file alone contains over 360 document entries and file notes. Many documents have been lodged by the applicant multiple times and a significant quantum of irrelevant documentation has also been provided. The applicant’s personal communication style has, at times, proved challenging for Registry staff. Accordingly, the application has been considered carefully at every stage to ensure that the applicant’s personal communication style has been accommodated where possible, and set to one side where a dispassionate consideration of his claims and evidence has been required. As will be discussed below, there may be underlying causal issues that account for the applicant’s challenging personal communication style which, while not relied upon as a separate claim for protection, nevertheless warrant consideration as arising naturally from the evidence before the Tribunal on review.
The applicant originates from the village of [Village 1], near the city of Karnal in Haryana, India. This village is approximately [number] km north of the capital city of India, New Delhi. The applicant is one of four children born to parents, all of whom continue to reside in that country. His parents are farmers, working their own land in [Village 1], and both are presently in good health.
The applicant’s application for protection dated 30 January 2018 stated that he holds a fear of harm in Australia. The harm identified by the applicant at that time was “financial hardship; Race; workplace harassment.” The applicant stated that he had sought protection against this harm from “NSW police authorities” but that “Police not taking any action” because of “Racism”. The applicant stated that he was “Trying my best” to relocate.
The applicant has provided the Tribunal with copies of two NSW victims’ support decisions pertaining to him and made under the Victims Rights and Support Act 2013 (NSW). The first of those decisions, dated 24 October [2012], awarded recognition and financial assistance payments in the amount of $1,909.52 in connection with a random assault sustained by the applicant on [date] May 2019 on a [location]. That decision referenced both physical and psychological trauma experienced by the applicant as a result of the random assault.
The second NSW victims’ support decision relating to the applicant, dated 29 May [2019], was to dismiss a claim by the applicant for victims’ support on the basis of sexual assault and domestic violence sustained by the applicant between 9 July 2017 and 19 July 2017 and perpetrated by the applicant’s housemate. In the course of this victims’ support decision, the assessor summarised the relevant contemporaneous police report of the altercation on 19 July 2017 in the following terms:
8.The report states that [HD] and the [applicant] shared a room in [a suburb]. The [applicant] had resided at the location for approximately 2 months·and [HD] had been there for approximately a month and a half.
9.According to the report, on [date] July 2017, the [applicant] was in his room listening to music. At approximately [time], [HD] had come into the room and commenced verbally abusing the [applicant] for approximately 10 minutes. The [applicant] has then left the room and gone into the kitchen. [HD] has allegedly followed the [applicant] into the kitchen and continued to verbally abuse [the applicant], and then allegedly started to slap [the applicant]. The other housemates have then separated [the applicant] and the [HD]. [HD] has then left the premises.
Both the applicant and HD share the same religious-based name and the same caste-based name. This commonality of names and the added issue of speaking through interpreters has clearly added to confusion in the minds of both the police and, given that this confusion has found expression in the relevant charging documents, the victims’ support assessor’s summary is challenging to follow. The corrections included in the extracts above are based on a fair reading of both the subsequent victims’ support review decision, the court disposition certificate extract provided in the course of this review, and the applicant’s own evidence at the first hearing.
The applicant subsequently applied for a review of the decision and, on 30 April [2020], the applicant was awarded a recognition payment of $1,500.00 on review, in connection with a single act of violence which occurred on [date] July 2017.
It was noted in the victims’ support review decision that both parties to the act of aggression (being the applicant and his roommate) had made police charges against one another and had sought ADVO’s against one another. Following a complaint to NSW police on [date] July 2017 the applicant was charged with a common assault/stalking offence. Subsequently, both parties withdrew their ADVO applications and the charges against the applicant were ultimately dismissed [after] a hearing in [a] local court on 30 October 2017. The Magistrate found that the applicant’s accuser was an unreliable witness. The victims’ support review decision also noted that the applicant’s GP reported that the applicant “has recently been unwell with multiple issues and had been suffering from anxiety and depression as a result of three assaults over the past 12 months.”
According to a GP report by [name deleted] dated 15 January 2019:
[The applicant] suffers from major depression and he is not currently stable. He feels depressed, with sleep disturbance. [The applicant] was assaulted by unknown people while he was eating his meal roadside. He was approached by 2 people wanting him to [do specified work]. [The applicant] told them he was on a meal break, when they punched him on the face and he bacame unconsious with blurry vision. He was taken to [a hospital] and was treated there. He was diagnosed with fractured nose bone. His treatment included regular psychotherapy with counselling.
He is revocery period is unclear at this stage, it depends on his symptoms recovery.
Unable to work for 2-3 month.
On 6 May 2019 the applicant made a statutory declaration in connection with his 30 January 2018 application for protection. This declaration, which appears on the Department file, relevantly stated as follows:
1.… I am claiming persecution on the grounds of Religion and Political Beliefs. …
4.I am seeking protection and cannot return to India and not Australia as incorrectly stated in my application for a protection visa. …
12.On [date] July 2017, at about [time] an argument ensued between myself and my roommate, [HD]. The argument was about religion and politics in India.
14.Both [HD] and I are Indian nationals and adherents to the Sikh faith.
15.Although we are of a common religious faith, we have a varied view on central aspects of the Sikh faith as well as politics.
16.[HD] ascribes to an extremist form of Sikhism, whereas I am a moderate. He was offended by my moderate religious and political views and ordered me to immediately leave the property.
17.After refusing to leave the property he physically attacked me resulting in cuts to my lips and face. After the violent physical attack which lasted approximately 10 to 15 minutes I managed to call the NSW police.
18.After the NSW police attended the residence, we were both questioned at [a] police station. They had issued an AVO against me after mistakenly believing that I was the culprit in the dispute. I was also charged with assault and intimidation however I was found not guilty as the police had mistaken me for the individual who initiated the dispute when I was really the victim. I believe I had acted in self-defense during the altercation between [HD] and myself. The AVO against me was also withdrawn when I was found not guilty for the charges.
19.[HD] vacated the premises immediately after the NSW Police had questioned both him and myself.
20.Following the reporting of the incident I continued to receive threats through third parties.
21.On 17 December 2018, I was physically attacked [by] associates of [HD]. My attackers warned me that my life will be in danger should I return to India.
22.Through third parties I continue to receive messages from [HD] that I will be killed should I return to India and that there is no one who can provide me protection there.
23.[HD] and his associates ascribe to an extremely fundamentalist and violent Sikh group who do not tolerate moderate Sikhs such as myself.
Why I fear returning to India:
24.I fear that should I return to India [HD] or his associates will carry out their threat to seriously harm me.
25.Unlike the situation in Australia, I cannot rely on the Indian authorities for effective protection. The Indian police is rife with corruption and remains largely indisposed to taking religiously or politically motivated threats of violence seriously.
As will be appreciated, this statutory declaration is remarkable in a number of respects. The primary difficulty with this statement being that it is materially inconsistent with his prior (also sworn) statement in his application for a protection visa on 30 January 2018 as summarised at paragraph [13] above. As will be discussed below, the claims expressed in the later statutory declaration were also not repeated before the Tribunal at any of the three hearings.
Against this background, on 13 June 2019 the applicant applied for a Bridging B (Class WB) visa to permit him to travel to [Country 1], citing a combination of family and medical reasons. This application was refused at the first instance by written decision dated 19 June 2019. The applicant applied to the Tribunal for a review of that decision on 27 June 2019.
The factual context for the present review was summarised by the Tribunal (differently constituted), in a written decision dated 12 September 2019 when remitting the applicant’s review application for a Bridging B (Class WB) visa.[1] That decision was referenced heavily at the first hearing by the applicant before the Tribunal as presently constituted in explaining his personal circumstances. Relevantly, the Tribunal hearing the applicant’s Bridging B (Class WB) visa refusal review application noted as follows:[2]
Following his return from India in 2016, he suffered several incidents in Australia, relating to his share accommodation and in the context of his work as a [Occupation 1]. There were people he did not know who were smoking and drinking alcohol and they abused him. He believes they may also have used his ID without his permission. He was also assaulted on several occasions by unknown persons.
He applied for the present visa to travel to [Country 1] because he has no friends or family here and because of these bad experiences. In [Country 1] he has a close relative, [a] [Relative 1]. Also when he was in India he had some medical issues and he wants the same doctor he had there to treat him. He is very depressed in Australia and needs support. He wants his family treating doctor to treat him and he believes he may be able to meet him in [Country 1] for treatment. The applicant also referred to suffering an injury [when] he was young, and that he still has problems [doing a specified thing] because of this. His family doctor is familiar with his situation and that is why he wants treatment from this doctor. He said in Australia he is under financial pressure and cannot access medical treatment because he cannot afford it.
[1] Tribunal Ref: 1916999.
[2] Ibid at [10]–[11].
In the same decision, the Tribunal further noted:[3]
… on the basis of the medical evidence provided to the Tribunal, documentation relating to his application for victims compensation, repeat applications for a Bridging visa B, and oral evidence to the Tribunal, that he has experienced difficulties and hardships in Australia in recent years. For example, [Dr A]’s report dated 15 January 2019 refers to him suffering from major depression, and not being currently stable, and that he was assaulted by unknown people. A report by a Counsellor in the context of his victims compensation claim, in March 2019, refers to a history of alleged physical incidents, a diagnosis of adjustment disorder and that he has no support system in Sydney and feels lonely and alienated.
[3] Ibid at [22].
On 16 January 2020 the applicant lodged a police complaint with Victoria Police alleging a violent domestic assault inflicted on him by one of his housemates. The applicant subsequently obtained an interim intervention order against this individual on [date] January 2020 in [a] Court. The ultimate disposition of these charges and orders is not known to the Tribunal.
On [date] 22 February 2021 the applicant was charged by Victoria Police with a disorderly conduct offence that occurred on [date] November 2020, namely, discharging a missile [at] security guards in [a location]. The applicant was charged to appear before the [court] on 19 July 2021. Given that the applicant attended the Perth Registry of the Tribunal on 17 June 2021 at the height of COVID-19 lockdowns in both New South Wales and Victoria, I asked the applicant what his plans were regarding his charged appearance. The applicant was unable to explain how this would occur. As at the date of this decision, the disposition of this charge is unknown.
On 8 May 2021, the applicant presented by ambulance at [a] Hospital following a “situational crisis”. The discharge report by the relevant RMO, provided by the applicant, stated as follows:
He was BIBA following an altercation at his hotel regarding refund of his bond, and his expression of suicidal ideation. [The applicant] recently moved from Melbourne to Perth with no plan of supporting himself financially. In ED he was seen by the consultant and expressed that he was more stressed about lack of accommodation and funding and wanting a place to relax and have privacy. He was reviewed by social work but refused social work input for: getting bond back from hotel, chasing centrelink, living with family in Perth due to "privacy" issues. He is systemically well, and reports previously having anxiety (no formal diagnosis) and refused psychiatry input. He reports no other significant medical history. Due to his guarded nature and stating privacy concerns we were unable to obtain a clear history. He was discharged as he is medically cleared and he refuses psych and social work. He was given Ig paracetamol prior to d/c at his request.
It will be appreciated from the foregoing that the applicant’s claims to engage Australia’s protection obligations have been ambulatory. As will be discussed below, credibility concerns surrounding the applicant’s articulated claims for protection (such as they are), mean that these claims have not been accepted in the course of the present review.
The applicant’s conduct during this review has, in the alternative, caused the Tribunal to consider the potential consequences of return to India of an Indian national exhibiting the constellation of psychological symptoms and challenging communication style demonstrated by the applicant. A further late claim mentioned by the applicant in the course of the review, relates to the spread of the COVID-19 virus in India and the danger to public health for people in that country.
DECISION MAKING FRAMEWORK
President’s Directions
I have had regard to the President’s Directions including ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020;[4] and, ‘Conducting Migration and Reviews’, 1 August 2018, with particular regard:
· That ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible;[5]
· That “Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.”[6]
[4]Cf: [5.12] and [5.17].
[5]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).
[6]At [8.1].
Applicable legal principles
Applicant credibility
The task of fact-finding may involve an assessment of an applicant’s credibility. In this context, I have been guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[7] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[7]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton,[8] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[9] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[8](1996) 40 ALD 445.
[9]At [482].
I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[10] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[11]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
[10](1996) 185 CLR 259.
[11]At [25].
The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor are decision-makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, or are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[12]
[12][1997] FCA 1198 at [11].
Nevertheless, as Burchett J counselled,[13] it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[13]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].
The Full Court of the Federal Court has noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[14]
[14]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167.
Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[15] Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. That being said, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary to consider the possibility that adverse findings might be wrong.[16]
[15]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558–9].
[16]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [241] per Sackville J (with whom North J agreed).
In addition, I am aware that if a Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[17] This is sometimes referred to as the “what if I am wrong” consideration. I am also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[18]
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
[17]MIMA v Rajalingam (1999) 93 FCR 220.
[18](1999) 197 CLR 510 at [191].
On the other hand, a decision-maker is entitled to consider whether an applicant genuinely, subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
If a decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. In this respect, in Iyer[19] the Tribunal there had concluded that certain return visits to Sri Lanka from Australia were voluntary. This (so the Tribunal reasoned), supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.
[19]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Court on review, confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[20] I recognise that such a principal cannot be relied upon as an iron rule. However, it is potentially a useful illustration of the kind of weighing process that an objective decision- maker must make when making findings relevant to the existence of a well-founded fear of persecution. Credibility findings are, in practice, often central considerations when assessing an applicant’s claims or evidence. This is particularly the case when assessing an applicant’s core or ‘material’ substantive claims or evidence.
[20]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
In this respect, I note the comments of Flick J,[21] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:
31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
[21]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].
As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[22]
… Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a) failure to afford procedural fairness;
(b) reaching a finding without any logical or probative basis;
(c) unreasonableness; and/or
(d) jurisdictional error as discussed by Flick J in SZVAP.
[22]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].
The particular reference by their Honours in the extract above at (b) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings is telling. In this respect, I note that, later in the same judgement,[23] the Court referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 about the United States 9th Circuit Court of Appeals decision in Stoyanov v INS[24] (Stoyanov):
The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”:
[23]CQG15 v MIBP [2016] FCAFC 146 at [43].
[24](9th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at [736].
I note also, that a number of judicial caveats have been expressed when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be. Firstly, as the Federal Court observed in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:
… the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22–23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Federal Court in the more recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. The Court made the following observations of utility:[25]
32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is “satisfied” that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).
33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others. To the contrary, “[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole”: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that “the well has been poisoned beyond redemption”: S20/2002 at [49]; and Chen at [35].
34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness.
[25]Per Rangiah, Perry and Bromwich JJ.
In addition to the foregoing judicial guidance, I have also considered the Migration and Refugee Division “Guidelines on the assessment of credibility”, issued in July 2015, which provides:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[26]
[26]At [8].
And:
In relation to protection visa applications made on or after 14 April 2015 if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made the tribunal must draw an inference unfavourable to the credibility of the claim or evidence. This refers to the requirements at section 423A of the Act.[27]
[27]At [13].
The Guidelines also advise that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.
A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[28]
[28]At [17]–[19].
With respect to contradictions, inconsistencies and omissions, the Guidelines state:
Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal.
The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[29]
New claims and evidence
[29]At [27]–[28].
Applicants are required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.
This principle is enshrined at s.5AAA of the Act, which clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view a Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition, referred to above, that it is for an applicant to make their own case.[30]
[30]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
As a general principle, therefore, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. Two obligations here are particularly relevant:
i.The ongoing requirement under s.104 of the Act for an applicant to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity; and
ii.Section 423A of the Act requires a Tribunal to draw an adverse inference about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.
In such cases, if a Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision a Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence.
In making such an assessment, I am mindful of the specific considerations mentioned in the President’s Directions relating to opportunities to raise a claim or evidence, changes in the available country information or other relevant information, relevant changes in the personal circumstances of the applicant or diagnosed medical conditions that may have impaired an applicant’s memory or self-expression.[31]
[31]At [9].
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or 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) of the Act provides that an applicant for a protection visa must satisfy the Minister that they are a non-citizen in Australia in respect of whom 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). These are findings of fact.
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), they may nevertheless meet the criteria for the grant of the visa if the Minister is satisfied that they are a non-citizen in Australia in respect of whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Accordingly, in addition to the country information referred to in the delegate’s decision record, which was provided to the Tribunal by the applicant, the Tribunal has had regard to DFAT Country Information Report: India dated 10 December 2020, in particular its discussion relating to the treatment of returnees. I note that this publication provides at [5.39] as follows:
DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. India does not have a centralised registration system in place to enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories.
I have also had regard to the Department of Home Affairs publication “Common Claims: India”, COISS 31 March 2021.
CONSIDERATION OF CLAIMS AND EVIDENCE
Hearings
First hearing
At the first hearing with the applicant in person at the Perth Registry on 17 June 2021, the applicant presented as reserved, but otherwise unremarkable in his affect and engagement with proceedings. The applicant was emotionally well-regulated and provided straightforward evidence in a measured manner by means of an interpreter fluent in both the English and Punjabi languages.
The applicant stated that he was in good health and coping with the restrictions imposed on the community by the COVID-19 precautions, despite having moved between states several times in recent months. The applicant stated that his health has benefited from opportunities to see doctors and by occasionally attending public hospitals. His lack of long-term housing security had been challenging for him.
The applicant’s parents are in good health. The applicant stated that he communicates with his parents every two to three weeks. The applicant’s mother and father continue to live in the village of [Village 1], near the city of Karnal in Haryana, India. They work on family-owned land in the agriculture sector. The applicant refused to answer questions about his own relationship status or history.
The applicant’s brief return to India for two weeks in 2016 while he was studying was due to his mother experiencing a period of ill health. The applicant confirmed that he had sought a Bridging visa (B) to visit family members in [Country 1] and obtain some medical treatment. Owing to the intervention of the COVID-19 pandemic, the applicant had been unable to travel to [Country 1] as he had intended. The applicant stressed that his personal circumstances had already been made known to the Tribunal in sufficient detail in his application for review over a refusal of his application for a Bridging visa (B)[32] and he saw no reason to have to repeat those details to the Tribunal as presently constituted.
[32] Tribunal Ref: 1916999.
I questioned the applicant about the dispute which had arisen between himself and [HD] in 2017. The applicant’s evidence in this respect lacked clarity and was inexplicably vague with respect to the nature of his relationship with [HD] during the period of time in which they were cohabiting. Despite the lack of clarity of the applicant’s evidence in this respect it appears that there were genuine religious differences between both himself and [HD] at the time they were cohabiting.
I asked the applicant about his forthcoming scheduled appearance before the [court] in Victoria on 19 July 2021. The applicant restated his intention to attend in person before the [court] on 19 July 2021. The applicant did not explain how he intended to achieve this intention. I asked the applicant to notify the Tribunal about developments in this matter.
I asked the applicant about his 6 May 2019 claims about experiencing ongoing threats from [HD] and his associates following the violent criminal assault on [date] July 2017. I noted that the applicant had made no subsequent reports to police about to these threats. I noted also that the applicant had given conflicting descriptions of his various assaults over time on different occasions. In this respect I referred the applicant to descriptions in the Bridging visa (B) review decision; descriptions recorded by his treating doctors in reports submitted by the applicant in the course of the review and descriptions recorded in the victims’ support assessments referred to above. I pointed out to the applicant that these factors might raise questions in the mind of a reasonable person about the credibility of his claims that he subjectively holds a genuine well-founded fear of harm from [HD] and his associates in either Australia or in India now or in the reasonably foreseeable future. The applicant’s responses to these concerns were vague and unsatisfactory.
Having questioned the applicant in person about these matters, I am not satisfied that he has provided a consistent or credible account over time of any threats of harm that he claims to have received from either [HD] or his associates, other than the historical assaults referred to in paragraphs [15]–[18] above. I find therefore, that the applicant’s reference to subsequent threats of harm by [HD] and his associates in the applicant’s statement of 6 May 2019 extracted at paragraph [20] above is an artefact of late invention and I, therefore, accord it no weight in the context of this review.
I asked the applicant what his intentions would be with regard to returning to India and he stated that his first preference would be to return to live with his parents. The hearing was then concluded.
Second hearing
Due to the applicant having returned to Sydney, NSW, the second hearing was held via MS Teams videoconferencing on 17 August 2021. This hearing was also held using the services of an interpreter fluent in both the English and Punjabi languages. Given the COVID-19 lockdowns in place in NSW at the time, the applicant appeared from his own private location.
At the second hearing I advised the applicant that, as the applicant had requested, I had considered the Tribunal matter reference 1916999 in some detail. The applicant confirmed for me that, following this positive decision on review, he had subsequently been prevented from travelling to [Country 1] as intended because of the intervention of the COVID-19 international pandemic.
I asked the applicant about references in his medical reports (submitted to the Tribunal in the course of both reviews) about psychological challenges he had faced, including depression. I asked if he had received any treatment for these challenges. The applicant stated that he had spoken to his GP over time about his physical and mental health challenges. The applicant stated that he now no longer had any mental health problems.
I asked the applicant about the outstanding charges against him in Melbourne. The applicant stated that he was required to do nothing further with respect to those charges. I asked the applicant to provide some evidence relating to the statement that the charges were now no longer a problem. As at the date of this decision, no further information has been provided by the applicant.
The applicant confirmed that he had received two payments of funds from the victims’ support scheme in NSW following separate assaults that he had sustained while in Australia.
I asked the applicant about the nature of his relationship with [HD] in the present and the applicant confirmed that he had no relationship with this person. Further, he had not spoken to [HD] for between four and five years.
I asked the applicant to clarify what it was he feared on return to India. The applicant stated that he has a fear of everything and that while he had been living legally in Australia he had also lived in fear. I again asked what specifically the applicant feared would happen to him on return to India. The applicant stated that he had generalised fears relating to what life is like in India, given that he had been in Australia for approximately eight years. The applicant also had generalised fears of random violence that may occur to him.
The applicant stated that he had been trying to apply for protection in Australia to stay safe. I asked the applicant if there was anything further that he wished me to consider with respect to his application for protection. The applicant referred me to his previous evidence.
I pointed out to the applicant that there was no guarantee by any country of complete safety to any of its citizens. I reminded the applicant of the statutory tests that applied when assessing his claims for protection. I pointed out to the applicant that there were problems with his application as far as it identified a well-founded fear of harm under the refugee criteria under the Act. I also pointed out the difficulties presented by his claims and evidence with respect to making an assessment of the real risk of significant harm to the applicant now or in the reasonably foreseeable future on return to India for the purposes of the complementary protection assessment.
I pointed out to the applicant that his statements relating to what it was he specifically feared would happen to him on return to India had changed over time and that what he was asserting now appeared to be generalised fears of harm. I pointed out that he had repeated none of his previous statements about fearing harm from any particular person for any particular reason in India now or in the reasonably foreseeable future.
The applicant repeated his concerns about generalised violence and economic uncertainty that he might face on return to India. The applicant also stated that he feared harm from the COVID-19 pandemic, given the way that it had been affecting the population of India.
Third hearing
After reviewing the material on the files with particular reference to the applicant’s record of mental health challenges in Australia, further evidence was required from the applicant in person about these issues. Accordingly, a third hearing was scheduled and held with the applicant via MS Teams videoconferencing on 4 October 2021. As before, the hearing was held using the services of an interpreter fluent in both the English and Punjabi languages. At the insistence of the applicant, an interpreter fluent in both English and [Country 1] languages was also engaged for the hearing but did not provide interpreting services during the conduct of the hearing. The applicant appeared at the hearing from a private location in Sydney due to the ongoing COVID-19 movement restrictions applicable in NSW.
The applicant again confirmed that he had generalised fears of harm in both Australia and India. Once again the applicant did not identify particular agents of harm in either country when invited to do so at the hearing.
I pointed out to the applicant that both the medical reports and his victims’ support decisions provided to the Tribunal referred to counselling and psychology reports. I further noted that the applicant’s medical reports referred to such matters as major depression, adjustment disorder and suicidal ideation. I noted that the applicant had received payments for psychologist treatment.
The applicant indicated that he had seen some psychologists, however, they had not provided him with any reports. The applicant stated that despite the treatment he had undertaken with his GP for major depression he still struggled with insomnia and on occasion he had attended hospital for treatment. The applicant stated that, in terms of medical interventions, he had received none other than some blood tests and was taking painkillers from time to time. The applicant stated that he had not seen any psychologists in recent times, but that his GP had suggested further blood tests in addition to the COVID-19 vaccination.
I asked the applicant what would happen to him if he were to return to India in the reasonably foreseeable future. The applicant stated that he did not know, that he had not given it much thought and that it was difficult to be certain. I invited the applicant to make further submissions. The applicant made no further submissions. The hearing was thereafter concluded.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims of particularised harm from any agent of harm in India now or in the reasonably foreseeable future are lacking in credibility and no longer appear to be subjectively held by the applicant. Judicial authority provides that, in such cases, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.[33]
[33]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.
Regardless, I note also that under s.5J(1) of the Act (and the previous Convention provisions from which the definition is drawn), while there can be no legal presumption of state protection,[34] there is some authority for the proposition that an asylum seeker in Australia will bear a practical burden of establishing that protection is lacking.[35] I further note that the Supreme Court of Canada stated in Canada (Attorney-General) v Ward (Ward) that in the absence of a state admission as to its inability to protect its nationals, clear and convincing evidence of a state’s inability to protect must be provided.[36] The Court continued: [37]
Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of State apparatus … it should be assumed that the State is capable of protecting a claimant.
[34]A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999). E.g. Koe v MIMA (1997) 74 FCR 508, Thiyagarajah v MIMA (1997) 80 FCR 543 at 567, MIMA v Prathapan (1998) 86 FCR 95, MIMA v A (1998) 156 ALR 489 (Nicholson J, 9 April 1998) and MIMA v Kobayashi (unreported, Federal Court of Australia, Foster J, 29 May 1998).
[35]E.g. SZBJH v MIAC [2007] FMCA 1395 (Scarlett FM, 3 August 2007) at [43] and SZIRA v MIAC [2007] FMCA 1082 (Nicholls FM, 7 June 2007) at [32].
[36][1993] 103 DLR (4th) 1 at 23.
[37]Canada (Attorney-General) v Ward [1993] 103 DLR (4th) 1 at 23.
In MIMA v Khawar, Kirby J referred to Ward in support of the broad proposition that as a practical matter in most cases, save those involving a complete breakdown of the agencies of the state, decision-makers are entitled to assume (unless the contrary is proved) that the state is capable within its jurisdiction of protecting an applicant.[38] Accordingly, I have proceeded on the basis that the Indian state ‘is capable within its jurisdiction of protecting [the] applicant’.
[38](2002) 210 CLR 1 at [115]. In A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999) the Full Federal Court characterised the presumption that ‘nations should be presumed capable of protecting their citizens’ as ‘a presumption without a basic fact’ and therefore as ‘a rule of law relating to the existence of a burden of proof [which] has no part to play in administrative proceedings which are inquisitorial in their nature’. Accordingly, the Court agreed with the trial judge that there was no foundation in authority or principle which should lead it to accept the existence of a presumption in terms of Ward. The apparent conflict between these cases may be explained by the different ways in which Kirby J and the Full Federal Court in A characterised the reference in Ward to the presumption of protection.
The relevant assessment of state protection in relation to a complementary protection assessment for the purposes of s.36(2B)(b) is differently framed and the assessment of the available standard of protection in a receiving country is on the basis of ‘international standards’.[39]
[39]MIAC v MZYYL (2012) 207 FCR 211 at [36]–[37].
Nevertheless, the dispositive consideration relating to this aspect of the applicant’s claims is not the adequacy of state protection with respect to generalised violence within India. What appears to be dispositive in this instance is the reference to ‘systematic… conduct’, which reflects the jurisprudence about the meaning of persecution. For example, in Chan v MIEA, McHugh J, in the context of the previous legislative framework, stated:[40]
The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention. (emphasis added)
[40]Chan v MIEA (1989) 169 CLR 225, per McHugh J at 429–430. His Honour supported this proposition by reference to Periannan Murugasu v MIEA (1987) 217 ALR 17, where Wilcox J had stated at 23 ‘[t]he word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances’.
The body of case law that has subsequently developed around his Honour’s use of the expression ‘systematic conduct’ in that case is instructive.[41]
[41]See for example Mohamed v MIMA (1998) 83 FCR 234, Abdalla v MIMA [1998] FCA 1017 (Burchett, Tamberlin and Emmett JJ, 20 August 1998), Chopra v MIMA [1999] FCA 480 (Lee, Whitlam and Weinberg JJ, 23 April 1999), Haji Ibrahim v MIMA (1999) 94 FCR 259 at [25], MIMA v Hamad (1999) 87 FCR 294. In MIMA v Hamad, the Full Federal Court stated at [17]: ‘The phrase “systematic conduct” can be, and often is, used in two senses – either to refer to the motive, or evidence revealing the motive for the acts of the perpetrator or alternatively to refer to a number of acts or the volume of acts which are necessary before persecution is established.’ The Court stated that McHugh J had used the phrase in the first sense in Chan. In Haji Ibrahim, the Full Federal Court similarly observed at [25] that the word ‘systematic’ may be used in two alternative senses: ‘One sense is that of deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent. The other sense is that of habitual behaviour according to a system, regular or methodical. Where those words have been used to indicate the former sense, there will be no error of law. Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal’. This analysis was not disturbed on appeal to the High Court: MIMA v Haji Ibrahim (2000) 204 CLR 1.
In MIMA v Haji Ibrahim, McHugh J explained that his use of the expression ‘systematic conduct’ in Chan was not intended to mean that there can be no persecution for the purposes of the Convention unless there is a systematic course of conduct by the oppressor; rather it was used as a synonym for non-random.[42] His Honour held that:[43]
It is an error to suggest that the use of the expression “systematic conduct” in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic”.
[42]MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].
[43]Ibid at [99].
The question of whether certain conduct is ‘systematic’ is distinct from the qualitative assessment which is required to determine whether conduct amounts to ‘serious harm’. In VSAI v MIMIA, Crennan J stated that where conduct shown to be serious harm falls to be assessed as to whether it is ‘systematic conduct’ (in that case by reference to the former legislative framework), it would be wrong to require the applicant to show anything more than that it is deliberate or pre-meditated, that is, motivated. It would not be necessary to show that the conduct is widespread or frequently recurring. However, her Honour observed that frequency or regularity may be relevant to determining whether conduct amounts to ‘serious harm’ if the isolated incidents can be described as involving minimal or low level harm.[44] Similarly, also with reference to the previous legislative framework, the Full Federal Court observed in SZTEQ v MIBP that ‘systematic’ is used in the same way that ‘discriminatory’ is used – to direct the decision-maker’s attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental.[45]
[44]VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53].
[45]SZTEQ v MIBP [2015] FCAFC 39 (Robertson, Griffiths and Mortimer JJ, 24 March 2015) at [72]. See also SZTIB v MIBP [2015] FCAFC 40 (Robertson, Griffiths and Mortimer JJ, 24 March 2015) and BZAFM v MIBP [2015] FCAFC 41 (Robertson, Griffiths and Mortimer JJ, 24 March 2015). Note that these comments are obiter.
The statutory test does not displace the general proposition that a single act may suffice, as long as it is part of a course of systematic (in the sense of non-random) conduct. While HajiIbrahim relates to an earlier legislative formulation, it remains law insofar as the meaning of ‘systematic’ is concerned.[46] The term ‘systematic’ should, therefore, be taken to mean ‘non-random’ in the sense of being deliberate, pre-meditated or intended. It is not necessary that conduct be regular, organised or methodical.
[46]VQAD v MIMIA [2003] FMCA 481 (Scarlett FM, 16 October 2003) at [32]. See also VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53] and SBWD v MIAC [2007] FMCA 1156 (Lindsay FM, 20 July 2007) at [38].
Given that any generalised violence evident in India would by definition be random and perpetrated by unrelated criminals and criminal organisations, it lacks the requisite systematic quality that gives rise to protection obligations under the Act.
With reference to the complementary protection assessment at s.36(2)(aa) of the Act, the qualification at s.36(2B)(c) provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’. Although differently framed, this qualification bears some similarity to considerations relating to assessing whether the harm feared in a country is systematic and discriminatory.
100. The Federal Court’s view is that the natural and ordinary meaning of s.36(2B)(c) requires the decision-maker to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk.[47] In SZSPT v MIBP the Court held that, while every citizen who broke a law of general application would necessarily face a risk of punishment personally, s.36(2B)(c) applied because it was no different from the risk faced by the population generally.[48]
[47]SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]–[13]. An application for special leave to appeal this aspect of the judgment was dismissed by the High Court: SZSPT v MIBP [2015] HCASL 114 (Kiefel J, 18 June 2015). See also comments of the court to similar effect in: the judgment at first instance in SZSPT v MIBP [2014] FCCA 1388 (Judge Raphael, 1 July 2014) at [15] (the provision would apply in a situation of ‘universal danger’, but not where the situation was ‘worse for a person of [a particular] ethnicity’); SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013) at [33], [49] (risk must be ‘faced by the individual personally in light of the individual’s specific circumstances’); SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [24] (risk must be ‘particular to’ the individual); SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013) at [43] (risk must be faced ‘in light of [the applicant’s] specific circumstances’).
[48]SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014). In this regard, the Court observed that there was no differential treatment as the law was one of general application and was not applied in a discriminatory manner: at [12]–[14].
101. The Court’s reasoning suggests that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace.[49] This approach was also taken in MZAAJ v MIBP to the risk of harm from inadequate medical treatment.[50] Similarly, in SZTES v MIBP, the Court held that a risk faced ‘personally’ is one that is particular to the individual and is not attributable to his or her membership of the population of the country, or shared by that population group in general.[51] In BBK15 v MIBP the Court held that the ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s.36(2B)(c) to apply.[52] These cases make it apparent that where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population, s.36(2B)(c) applies.
[49]Ibid at [11]–[15]. Contrast SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013), where the Court endorsed a submission by the Minister to the effect that where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, this may disclose a sufficiently real and personal risk: at [34], [49]; however, these obiter comments should not be followed as they are inconsistent with other authorities including the appellate level judgment in SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014). Nonetheless, in CLJ15 v MIBP [2018] FCA 1638 (Kenny J, 31 October 2018) the Court held that the Tribunal did not commit a jurisdictional error by incorrectly adopting the more generous approach endorsed in SZSFF as opposed to that in SZSPT: at [50]–[51].
[50]MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) at [6] where the Court endorsed the Tribunal’s finding that the risk of harm was a risk faced by all Sri Lankans.
[51]SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [23]–[24], citing SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013). In SZTES v MIBP, the Court found there was no error in the Tribunal’s finding that harm from insurgent attacks in Kabul was faced by the population generally and not by the applicant personally. An application for leave to appeal from the judgment was dismissed by the Federal Court: SZTES v MIBP [2015] FCA 719 (Wigney J, 17 July 2015).
[52]BBK15 v MIBP [2016] FCA 680 (Buchanan J, 8 June 2016) at [32].
102. Accordingly, to the extent that the applicant’s claims can be characterised as being based on a well-founded fear of harm in India for the essential and significant reason of generalised acts of violence perpetrated by unknown agents of harm and other non-state actors, they do not give rise to protection obligations in Australia under either s.36(a) or s.36(aa) of the Act due to the lack of particularity of the harm that is required by these statutory provisions.
COVID-19
103. It is acknowledged that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. I note that this decision is not a decision on removal. However, I am also mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future. Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of India generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.
104. Accordingly, circumstances in India arising due to the COVID-19 pandemic do not give rise to protection obligations in Australia under either s.36(a) or s.36(aa) of the Act due to the lack of particularity of the harm that is required by these statutory provisions.
Applicant’s mental health status and economic anxieties
105. The applicant has some insight regarding his need for both chronic and acute medical care as circumstances dictate. Nothing in the applicant’s history or the evidence provided by the applicant to date suggests that he would refrain from seeking appropriate care for his ongoing physical and mental health needs. To the contrary, the applicant is an experienced, informed and resourceful user of available medical services.
106. I note that economic conditions of general application in a receiving country do not, in the absence of other considerations, constitute either an act motivated by or with the requisite nexus between one of the refugee criteria, or an intentional act or omission for the purposes of complementary protection provisions.[53] I also note that, even where an applicant may have a particular vulnerability, harsh conditions of general application in a receiving country in, and of, themselves do not give rise to a well-founded fear of persecution for the purposes of the refugee criteria.[54] While acknowledging the applicant’s understandable anxieties about re-adjustment issues on return to India, nothing in his claims or evidence suggests that he would face particularised harm on the basis of general economic conditions in that country for any of the criteria at s.36(2(a) of the Act (the refugee criteria) or that would amount to significant harm for the purposes of s.36(2)(aa) of the Act (the complementary protection criteria).
[53]SZTAL v Minister for Immigration [2016] FCAFC 69.
[54]MIMIA v VFAY [2003] FCAFC 191 at [60].
107. For completeness I also note that the applicant has a network of support in India in the form of his parents and siblings and he has expressed the intention to return to them if he was to return to India in the reasonably foreseeable future.
Conclusion
108. Nothing in the material before the Tribunal, including the applicant’s own evidence at three hearings, discloses any grounds for particularised harm to the applicant from any person for any reason if he were to return to India in the reasonably foreseeable future.
109. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
110. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
111. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2). Consequently, the applicant does not engage Australia’s protection obligations under the Act.
112. The Tribunal affirms the decision not to grant the applicant a protection visa.
Dr Colin Huntly
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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