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
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 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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading 1926077 (Refugee)
Sign in free to access the full text
Details
AGLC
1926077 (Refugee) [2021] AATA 5658
Case
[2021] AATA 5658
Decision Date
CaseChat Overview and Summary
This matter concerned an application for a protection visa by an Indian national. The applicant claimed to fear harm in Australia due to financial hardship, race, and workplace harassment, alleging a lack of action from NSW police due to racism. The applicant also presented claims relating to ongoing threats from a former housemate and his associates following a violent assault in 2017, and generalised fears of random violence, including concerns about the COVID-19 pandemic. The decision under review affirmed the refusal of the protection visa.
The court was required to determine whether the applicant met the criteria for a protection visa, specifically considering the applicant's claims of fear of harm and the credibility of those claims. This involved assessing the evidence presented by the applicant, including past victim support decisions and his interactions with the Tribunal, against relevant country information regarding India and the legal principles governing protection visa applications and complementary protection. The court also had to consider the applicant's communication style and its potential impact on the assessment of his claims.
In its reasoning, the court applied the principles of assessing applicant credibility, acknowledging the need for sensitivity to the difficulties faced by asylum seekers and adopting a reasonable approach. The court noted that the applicant's evidence regarding the dispute with his housemate lacked clarity and was vague, despite indications of genuine religious differences. Furthermore, the court found the applicant's responses to concerns about the credibility of his claims of ongoing threats to be vague and unsatisfactory, particularly in light of conflicting descriptions of past assaults and a lack of subsequent police reports. The court also had regard to country information indicating no evidence of mistreatment of returnees by Indian authorities.
The court affirmed the decision to refuse the protection visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
I have also had regard to the Department of Home Affairs publication “Common Claims: India”, COISS 31 March 2021.CONSIDERATION OF CLAIMS AND EVIDENCEHearingsFirst 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.
Decision
Reasons for decision
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 FRAMEWORKPresident’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 principlesApplicant 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].
Ratio Decidendi
Legal Principle Established
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 EVIDENCEHearingsFirst 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.