1929134 (Refugee) - [2020] AATA 4678

1929134 (Refugee) [2020] AATA 4678 (11 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1929134
COUNTRY OF REFERENCE:                   India
MEMBER:Peter Booth
DATE:11 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 11 September 2020 at 8:42am
CATCHWORDS
REFUGEE – protection visa – India – political opinion – member of Congress Party – threats and harassment from Bharatiya Janata Party (BJP) members – vague and imprecise evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Subramaniam v MIMA [1998] FCA 305
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Zhang v RRT & Anor [1997] FCA 423
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 3 October 2019 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 23 October 2017. The delegate refused to grant the visas on the basis that the applicants did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former…

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 1929134 (Refugee)

Details

AGLC: 1929134 (Refugee) [2020] AATA 4678
Case: [2020] AATA 4678
Decision Date: 11 September 2020

CaseChat Overview and Summary

The case involved two applicants for protection visas, the first named applicant and the second named applicant. The dispute centred on whether the first applicant had a well-founded fear of persecution in India due to his membership in the Congress Party and alleged threats and harassment from members of the Bharatiya Janata Party (BJP). The second applicant's claim was contingent on the first applicant's success. The decision was made by the Tribunal.

The legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958. This required determining if the first applicant had a well-founded fear of persecution for reasons of political opinion, and if there was a real chance of suffering significant harm if returned to India. The Tribunal also considered whether effective protection measures were available to the applicants in India.

The Tribunal affirmed the decision not to grant the protection visas. The first applicant's claims of persecution were based on his affiliation with the Congress Party and alleged threats and harassment from BJP members, including his house being ransacked and his wife being assaulted. However, the Tribunal found the evidence provided to be vague and imprecise. Crucially, no statement was initially provided with the application, and an undated statement was submitted later. The Tribunal concluded that the primary applicant's claim was unsuccessful, and consequently, the secondary applicant's claim also failed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicants meet the criteria set out in either s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The facts are taken from the applicants’ protection visa applications as follows.Identity and country of reference The first named applicant is a [age] year old male, born in [Mehsana], Gujarat, India. The second named applicant is a [age] year old female, born in [Valsad], Gujarat, India. Both applicants can speak, read and write English and Gujarati. The applicants both list Hinduism as their religion and state that they are of Indian ethnicity. The applicants claim to have Indian citizenship by birth and copies of the applicants’ passports in the Department’s file confirm that they are citizens of India.[1] [1] Passport, Department file [number]. The applicants state that they are married or in a de facto relationship with one another. The first named applicant recorded that he had employment in India, including self employed farming, and has been unemployed in Australia. The second named applicant listed no employment and reported being a housewife in her protection visa application. The first named applicant reported completing high school education. The second named applicant reported completing middle school education. In summary, the first named applicant claimed fear of harm in India due to his affiliation with the Congress Party and that Bharatiya Janata Party (BJP) members had tried to kill him at his house, ransacked his house and assaulted his wife. Migration history The first named applicant arrived in Australia [in] August 2017 on [a temporary] visa and applied for a XA-866 Protection visa on 23 October 2017. Claims The first named applicant’s claims for protection are contained in his protection visa application. No Department interview was offered. The second named applicant did not make her own claims for protection in Australia. The first named applicant’s claims are as follows:Provide reasons why this applicant left that country or those countries?I have attached my statement. Did this applicant experience harm in that country or those countries?Yes. Give details including:• the type of harm this applicant experienced• the person/people responsible for the harm• why they harmed this applicant.I have attached my statement.Did this applicant seek help within the country or those countries after the harm?YesGive details including:• the name of the person/organisation/authorities this applicant asked for help• what help they provided, if they helpedI have attached my statement.Did this applicant move, or try to move, to another part of that country or those countries to seek safety?No. Give details for why this applicant did not try to move to another part of the country or those countries.I have attached my statement.Does this applicant think they will be harmed or mistreated if they return to that country or countries?YesGive details including:• the type of harm or mistreatment this applicant is likely to experience• the person/people who would be responsible for the harm or mistreatment• why they would harm or mistreat this applicant.I have attached my statement.Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?NoGive details about why this applicant thinks the authorities could not, or wouldnot, protect them.I have attached my statement.Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?NoGive details about why this applicant is unable to relocate.I have attached my statement.

Decision

Reasons for decision

The primary applicant’s claim for protection in Australia having been unsuccessful, the application by the secondary applicant must also fail.DECISION The Tribunal affirms the decision not to grant the applicants protection visas.Peter BoothMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

In summary, the first named applicant claimed fear of harm in India due to his affiliation with the Congress Party and that Bharatiya Janata Party (BJP) members had tried to kill him at his house, ransacked his house and assaulted his wife. Migration history The first named applicant arrived in Australia [in] August 2017 on [a temporary] visa and applied for a XA-866 Protection visa on 23 October 2017. Claims The first named applicant’s claims for protection are contained in his protection visa application. No Department interview was offered. The second named applicant did not make her own claims for protection in Australia. The first named applicant’s claims are as follows:Provide reasons why this applicant left that country or those countries?I have attached my statement. Did this applicant experience harm in that country or those countries?Yes. Give details including:• the type of harm this applicant experienced• the person/people responsible for the harm• why they harmed this applicant.I have attached my statement.Did this applicant seek help within the country or those countries after the harm?YesGive details including:• the name of the person/organisation/authorities this applicant asked for help• what help they provided, if they helpedI have attached my statement.Did this applicant move, or try to move, to another part of that country or those countries to seek safety?No. Give details for why this applicant did not try to move to another part of the country or those countries.I have attached my statement.Does this applicant think they will be harmed or mistreated if they return to that country or countries?YesGive details including:• the type of harm or mistreatment this applicant is likely to experience• the person/people who would be responsible for the harm or mistreatment• why they would harm or mistreat this applicant.I have attached my statement.Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?NoGive details about why this applicant thinks the authorities could not, or wouldnot, protect them.I have attached my statement.Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?NoGive details about why this applicant is unable to relocate.I have attached my statement. No statement was provided with the application for a protection visa, despite references to such a document. On the day after the application for protection was filed, an undated statement was provided to the Department in response to a request for further information.The statement is in the following terms: Statement of [first named applicant]: I am an Indian citizen arrived in Australia [in] August 2017. I left India because of fear of persecution. By profession I was a farmer in India. I had ten years of education in India. My father was actively involved with Congress party. I liked the ideology of Congress party’s progressive values, equal economic opportunity and building social equality and became a member of Congress Party after finished degree. The BJP has abandoned its ideology and degraded itself into merely a political entity. I always maintain affinity to the Congress party and firmly believe in progressive values and always maintained the rules and regulation of the party. I had always availed opportunities to attend the classes and seminars conducted by the Congress party early stage of my membership. My family spirited participation in the above came to the notice of the local BJP which was consequently informed their cadres. I had always felt that the BJP government did not govern for the interest of all people. I had always desired to be significant presence in my local and business community. I believed that through my political involvement I would be able to provide strong opposition of the corrupt BJP member activities. During the election I was asked to pay ten thousands Rupees depending on the farming activities and small farmers paid thousands of rupees. I raised the illegal party donation issue with local police but I was told to listen and do whatever they asked me.After failing to stop their illegal activities we organised a rally taken out from one side of the area to another side attended by most of the business including people from different walk of life to condemn BJP’s activities. We carried out placards and banners with slogans against local BJP leaders and their corruptions. The following day some local BJP members came to my house and threatened to kill me. They harassed me in front of others. They ransacked my house and threatened to kill my family members. They went to my house and assaulted my wife and asked to tell me to stop reporting against them. I was very worried about my family and did not report to police gain.The current Indian and State Governments lack of political will and often have their tacit approval for such fringe elements to go on rampage to create and instil fear among those who stands for their democratic rights. There are numerous examples which can be found online in media that the BJP government did and continues to obstruct justice and prevent accountability for the perpetrators of violence against those who stand against the government supporters. Under the current BJP Government in India, there is assault on secular and free Indian constitution. Any dissent against this government is not tolerated and are taken to task to teach them a lesson. The government does not want to just crush dissent but it wants to crush thinking. One can easily become anti-national in India currently, if one simply even questions any policy by the government. It’s the tyranny of the highest order.I strongly believe that there is serious threat to my and my family’s life and well-being and that current government lacks will in tackling this elements and often are in connivance, aiding these elements. Even the supreme court of India has failed to live up to its role as custodian of constitutional rights and they are also being pressured to compromise. Every independent institution of repute had their independence scuttled some way or the other these days.My family involved with Congress party many years ago and actively involved against BJP. The state election will be held on end of this year and they made a list to eliminate those who actively involved against them. EVIDENCE AND SUBMISSIONS