1928788 (Refugee)

[2022] AATA 5115

1928788 (Refugee) [2022] AATA 5115 (14 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1928788

COUNTRY OF REFERENCE:                   India

MEMBER:Mark Bishop

DATE:14 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 December 2022 at 10:39am

CATCHWORDS
REFUGEE – protection visa – India – land dispute with uncle – uncle’s influence – unable to relocate – credibility issues – non-attendance at tribunal hearing – delay in protection application – unaware of unlawful status – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of India applied for the visa on 27 April 2017. The applicant provided a copy of the decision record to the Tribunal.

3. The delegate refused to grant the applicant the visa because the applicant failed to satisfy the criteria set out in the relevant Migration Regulations.

4. On 4 November 2022 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 14 December 2022. On 7 November 2022 the Tribunal confirmed with the applicant he had received the invitation to attend the review hearing (see Case Note number 2). The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. On 7 December 2022 and 13 December 2022 the Tribunal sent system generated SMS reminder notices to the applicant’s phone number.

5. It is the practice of the Tribunal to conduct “preliminaries” prior to the commencement of the hearing. These preliminaries are a courtesy to review applicants and basically explain the process of the hearing which will commence at a later time. These “preliminaries” are not part of the hearing and the presiding member does not attend during this process as it is conducted by administrative staff of the Tribunal. Case Note number 5 sets out the detail of Tribunal attempts to contact the applicant.

6. The applicant did not appear before the Tribunal.

7. The review applicant did not appear before the Tribunal for the review hearing on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with relevant provisions in the Act and the Tribunal confirmed with the review applicant he had received the invitation to attend the review hearing. In these circumstances, and pursuant to the relevant section in the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. The applicant provided a copy of the decision record to the Tribunal.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Criteria for a protection visa

10. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

11. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

12. 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).

13. 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.

14. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

16. In his Application for a Protection Visa (Form 866) dated 20 April 2017 the applicant declared:

    ·He came to Australia in 2009 on a student dependant visa. His wife left him in 2014.

    ·We have a dispute with his uncle  as some property. His uncle is an influential person. He has threatened the applicant to transfer his property or face dire consequences.

    ·He has not experiences any harm. He has not visited India post the threat. He does not think he will be safe in any part of the country.

17. The delegate made the following findings:

    ·The applicant arrived in Australia in July 2009 and lodged his Application for a Protection Visa on 27 April 2017.

    ·The delegate requested further information from the applicant concerning the following matters:

    oThe applicant’s statement of claims is extremely vague and lacks details.

    oWhen did the claimed dispute start?

    oWhere is the land in dispute?

    oWhat type of land is it?

    oHow is it that the applicant and his uncle jointly own the land?

    oDoes the applicant’s father or older brother also hold part of the land?

    oNo evidence has been provided to support that the uncle is highly influential and powerful.

    oThe applicant has been in Australia since 2009 and did not apply for a protection visa until 27 April 2017. This delay is especially pertinent given that the applicant was residing in Australia unlawfully from 18 June 2014 to 20 April 2017.

    ·The applicant did not provide a response to the request for information as outlined immediately above.

18. The delegate made the following findings:

    ·I am not satisfied that [the applicant] is a refugee as defined by s5H(1) of the Act. Therefore, I am also not satisfied [the applicant] is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act.

    ·As I am not satisfied [the applicant] is a refugee, as defined by s5H(1) of the Act, an assessment in relation to s5H(2) of the Act has not been made.

    ·I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to India, there is a real risk [the applicant] will suffer significant harm as outlined in s36(2)(aa) of the Act. Therefore, [the applicant] is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act.

    ·As I am not satisfied [the applicant] is a person in respect of whom Australia has protection obligations an assessment in relation to s36(2C) has not been made.

19. On 4 November 2022 the Tribunal wrote to the applicant and invited him to attend a review hearing on 14 December 2022. The Tribunal advised the applicant that he “…should provide a written submission setting out all claims made and maintained by the applicant by 7 December 2022… and please provide all documents you intend to rely on to support your case by 7 December 2022.”

20. The Tribunal notes Case Note number 2 sets out the following:

    ·Outgoing call to the RA at 10:44am to check whether he has received the Hearing Invitation that was emailed to him (and the MA on file - [name deleted]) on Friday 4.11.2022

    ·I noted that the Tribunal received a RTS for the MA's email address but there do not appear to be any concerns with the email delivery for the RA direct.

    ·RA confirmed that he has received the email and said that he is meeting with his new lawyer 'after 12.00pm today'.

    ·…

    ·Prior to completing the call, I confirmed the following details:

    1. The RA wishes to remove [name deleted] as the listed migration agent / recipient

    2. The RA received the Hearing Invitation sent by email on 4 November

    3. The RA's email address is as reflected in Tribunal records

    ·The reply was "yes" for the above questions.

21. The applicant did not respond to the correspondence set out in paragraph 19 above. The applicant did not provide any information to the Tribunal. The applicant did not provide any documents to the Tribunal. There is no information before the Tribunal that was not before the delegate.

22. It is certainly possible the applicant has a dispute with his uncle as to land title or land ownership. The applicant’s response to the Department that “…Just like other influential power lords who finance and control political situation, my uncle keeps a very low profile so that he is not caught up with the authorities. This is the reason I cannot provide any physical proof of him being influential and powerful” does not appear credible to the Tribunal. The applicant has not provided any documents that shows he has title or ownership to land either on his own or in conjunction with other persons. The applicant has not provided any confirmation or verification from interested persons (such as his father or other family members) that he might be the subject of threats. The applicant has not provided sufficient evidence that his uncle is a connected or influential person. The applicant has not provided sufficient evidence that his uncle is connected to government, the judiciary, the police or is so wealthy that he is able to bring undue influence on these organs of the state or others. There is insufficient evidence before the Tribunal to make a finding the applicant has been the subject of any threats.

23. The Tribunal has concerns as to the genuineness of the claims behind the Application for a Protection Visa. The Tribunal expresses concerns as to the lengthy period of residence of the applicant in Australia and his period of unlawful overstay prior to lodging his Application for a Protection Visa. The applicants explanation “…I was not aware of the fact that I was unlawful, since my wife kept me in the dark during the whole time about the visa refusal and AAT etc. I have explained this to the Status Resolution Department at the time of applying for my BVE”. The applicant’s explanation to the Department does not strike the Tribunal as sincere or truthful. Following separation from his wife the Tribunal is of the view it would have been almost axiomatic that the holder of a dependant student visa might check with the Department as to  his visa status.

24. The applicant did not provide submissions or attachments that address  S5H Meaning of refugee and  S5J Meaning of well-founded fear of persecution of the Act.

25. The Tribunal finds that the applicant does not have a well-founded fear of persecution and his claims do not have a credible basis.

26. The Tribunal finds there is little chance that he will be harmed for any of the reasons he has claimed. The Tribunal does not accept that he would be significantly harmed on the basis of things he has claimed. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a). Having concluded that the applicant does not meet the refugee criteria, the Tribunal has considered the alternative complementary protection criteria. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).

    CONCLUDING PARAGRAPHS

27. For the reasons given above the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

    DECISION

28. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Mark Bishop

    Senior Member

    Attachment  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …