1930330 (Refugee)

[2022] AATA 2363

1930330 (Refugee) [2022] AATA 2363 (30 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Suraj Handa (MARN: 0637649)

CASE NUMBER:  1930330

COUNTRY OF REFERENCE:                   India

MEMBER:Genevieve Hamilton

DATE:30 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 May 2022 at 2:41pm

CATCHWORDS

REFUGEE – protection visa – India – political opinion – threats from Akali Dal members – land dispute – fear of killing – death of family members – delay in applying for protection – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant is the primary applicant (hereafter the applicant).  The second and third named applicants are the spouse and child of the applicant (hereafter the included applicants). 

3. The applicants applied for the visas on 16 December 2016.  The delegate refused to grant the visas on 30 September 2019.  The applicants applied for review on 25 October 2019 and attached a copy of the refusal decision to their review application

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.

   Refugee

6. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

7. 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.

8. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

9. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

10. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

11. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    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.

    CLAIMS AND EVIDENCE

16. In his protection visa application the applicant said he was born in [Village 1], Punjab, India on [date] and is an Indian citizen.  His parents and brother are also Indian citizens living in India.  His ethnic group is Jat and his religion is Sikh.  He married [in] December 2020.  He last arrived in Australia [in] February 2015, on a student visa, travelling on an Indian passport.  The applicant stated that he was refused a 457 visa on 17 December 2015 and this was affirmed by the AAT.  His address in India was [Village 1], [District 1], Punjab.

17. From [specified year] to July 2015 he completed a series of courses in [two subjects] in Australia. 

18. The applicant said trouble started on [a day in] January 2015 when he was visiting India.  His family’s neighbour, [Mr A], had eyes on their property.  He encroached on a highly valuable piece of their land in the village.  The applicant asked him to cease his occupation of the land.  [Mr A] got annoyed and threatened to kill the applicant, gave the applicant a push and roughly handled him with force.  He threatened to take possession of the applicant’s land as well.  After that the applicant and his family were receiving continuous threats to life and property from [Mr A] and his associates.  8 February 2015 at about 9 pm the applicant was attacked by two persons with muffled faces.  They hit the applicant with a blunt weapon.  The applicant ran away and they could not catch him.  He got a telephone message saying that it was a trial only and that he would not get away next time.  The applicant reported the matter to police but they took no action.  Respectable people in the village also told him to stay away from [Mr A] because of his influence and links with extremist groups.  Even now the applicant is being openly threatened with being eliminated if he returns to India.  There are frequent killings by property and drug mafia in Punjab.  The applicant’s parents were terrified and forced the applicant to leave for his safety.  He is advised not to enter any part of India due to the severe threat to his life.  The ruling party of Punjab is in collusion with the BJP which rules India.  Associates and notorious persons related to SAD (Akali Dal) harass his family on one pretext or other.  They have given up hope that things will ever go back to normal.  They can’t leave the state because there is no buyer for the properties in Punjab so they won’t have sufficient funds to resettle elsewhere.  Also the applicant can be eliminated in any part of the country.  The applicant made further comments about why he could not rely on protection from the authorities. 

19. On 30 July 2019, in response to questions from the Case officer, the applicant provided further information as follows: the land owned by his father was inherited from his grandfather (a proof of land ownership was attached).  In the first week of June 2014 [Mr A] asked the applicant’s father if he could put his buffalos on a vacant piece of the applicant’s father’s land for two weeks.  [Mr A] then installed sheds and other structures.  Questioned about this, [Mr A] promised to remove the structures but he didn’t.  He continued to ignore requests to vacate the land.  The applicant visited India and asked [Mr A] to leave the land.  [Mr A] threatened to kill the applicant, pushed him, and roughly handled him by force.  On [a day in] February 2015 the applicant was walking towards his house, there were two people on a bike, the pillion rider came forward and tried to hit him with a blunt weapon.  The applicant ran home.  [Mr A] is an active member of Akalai Dal which rules Punjab with the BJP.  Administrators and police always take the side of people from the ruling party.  His parents receive constant threats and their land is still forcibly occupied. 

20. The applicant said his uncle was badly shocked by the situation and died on [date] September 2014 (death certificate submitted – date of death [in] January 2017, cause of death not stated).  The applicant also said his cousin was attacked and killed on [a day in] June 2017, and the family protested (news article submitted, along with post mortem examination report).  The post mortem report indicates that [his cousin] [age] years old died of [medical condition] on [date] June 2017.  He was from the applicant’s village ([Village 1]).  The translation of the article refers to protesters against the local police demanding that the murderers of the deceased be arrested immediately, the names of the alleged killers had been given to the police but they had not been arrested.  They demanded justice from the police. 

21. The applicant’s representative made a submission in support of the review application, reiterating the applicant’s claims, stressing the interests of the child applicant, and addressing principles concerning relocation. 

22. The applicants appeared before the Tribunal on 26 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

23. The applicant said he came from a small village of about 3000 people.  His forebears were all farmers.  His family in India consisted of father, mother and brother.  They grew seasonal crops such as wheat and rice and sold them to local shopkeepers.  The farm was about 5 acres which is relatively big but only provided a subsistence living.  His father was working as [an Occupation 1] (having retired from [another employer] in 2001 after [number] years’ service).  His brother was doing some farming.  The applicant came to Australia to study [Subject 1] and got his diploma in 2011.  Then he also studied [Subject 2].  He applied for a 457 visa but the sponsor cheated him.  Then he applied for protection. 

24. The applicant confirmed that his wife and child do not have independent claims of their own.

25. The applicant said their neighbour [Mr A] took land from his father for his own private use.  This happened in 2014.  It was nearly 3 acres.  The Tribunal asked the applicant how [Mr A] was holding the land – the applicant’s father could just reoccupy it?  The applicant said this was not possible because [Mr A] has political power and is keeping his cows and buffalos there.  The Tribunal asked the applicant whether his father could not just drive [Mr A’s] cattle off his land, as [Mr A] had no right to occupy it.  The applicant said they did protest. 

26. The applicant said his cousin had been killed by [Mr A] and consequently his uncle left the area.  Asked why his cousin was killed the applicant said [Mr A] was forcing his cousin to vote for him, his cousin slapped [Mr A] and a few days later they took him and threw his body in front of the house. 

27. The Tribunal asked the applicant what role [Mr A] had in the Akali Dal party.  The applicant said he was a village head.  The Tribunal asked what role he had in the Party itself.  The applicant said his role was to get votes.  The Tribunal asked the applicant if he could be clearer about what [Mr A’s] position in the Party was.  The applicant said it was not official.

28. The Tribunal put to the applicant that it was not easy to see the link between the land dispute and political opinions.  The applicant said he had been to the police about the land but they did nothing.  He mentioned a farmers’ protest in which a politician’s son ran over and killed four people but nothing was done. 

29. The Tribunal asked if the applicant’s family had taken any civil action against the neighbour.  He said his father hired lawyers but they said it would be difficult and expensive to win. 

30. The applicant mentioned that his father had been affected a bit mentally but was otherwise ok.  One of the applicant’s uncles in his father’s side had died and the cause of death was unclear but he might have been hit on the head.  His grandfather also died of stress.  The Tribunal observed that the link between these events and the land dispute appeared to be somewhat speculative. 

31. The applicant said when he went to India in 2015 [Mr A’s] right hand man ([Mr B] and his friend that killed that the applicant’s cousin) tried to attack him as he was coming from a relatives house.  They came at him on a motorbike with a wooden stick but he ran away.  This was because he had argued with [Mr A] about the land.

32. When his wife and son went to India his father went to the airport to meet them and they were followed home.  [Mr A’s] men are drunks and [Mr B] is a drug dealer.  Land is important but the applicant has no voice to defend his rights or he will killed.  He worries about his wife and son.  He could not relocate because with modern technology they could find him. 

33. The Tribunal asked about the delay in lodging a protection application, the applicant said he had thought he was on a pathway to PR through the 457 application. 

34. The second-named applicant stated that it was not possible to go back to India because their lives were in danger.  They have no future there.  Three family members were harmed because of the dispute with [Mr A].

35. The applicant’s representative submitted that the applicants were well-placed to set up an [specified] business in India but they were under threat, and family members had died.  The applicant has to get his land back in order to settle elsewhere, and this will cause the dispute to flare up again.  The representative asked the Tribunal to take into account the welfare of the applicant child. 

36. The current DFAT Country information report for India states: DFAT assesses leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, given the scale of the Indian election process, elections are conducted peacefully. DFAT assesses people who publicly express views critical of the government face a moderate risk of official discrimination.

37. COISS Report – India Common Claims (February 2022) includes the following information:

    India is a dynamic multi-party democracy with high levels of political participation. Aside from an interruption in the 1970s,252 when the term of the sitting Lok Sabha was extended past its five year term during a state of emergency, free and fair elections have been held since independence.253 While international commentary generally considers elections free and fair, vote buying and voter bribery are still widespread…

    The Akali Dal was founded in 1920 as a representative body to advocate for Sikh rights in British India. Post-independence, the Akali Dal or Shiromani Akali Dal (Supreme Akali Party) emerged as the main political rival to Congress in Punjab, particularly following the creation of a Sikh majority state in 1966.  The party divided into factions in the 1980s and has since split further into rival parties.  The major faction is the Shiromani Akali Dal (Badal), which was the senior coalition partner in government with the BJP in Punjab before losing power to the Congress Party in state assembly elections held in early 2017. Shiromani Akali Dal workers clashed with Congress and Aam Aadmi Party workers during the February 2017 Legislative Assembly election in Punjab. There was also poll violence involving Shiromani Akali Dal supporters during the 2019 general election.

    FINDINGS AND REASONS

38. Based on the information in their applications, the Tribunal finds that the applicants are nationals of India.

39. Considering first the refugee criterion, the applicant has not claimed to fear harm based on his race, religion or nationality. 

40. Although there was a suggestion in the applicant’s evidence that his political opinion or alignment was part of the reason he would be harmed with impunity, the applicant’s evidence on this point was vague.  The Tribunal is not satisfied that the person known in his claims as [Mr A] is prominent in the SAD or has notable wealth or influence.  The applicant’s contention that he was a past supporter of AAP but left it due to being targeted was not consistent with the country information which indicates that while there are sometimes violent clashes during elections, in general opponents of ruling parties do not experience serious harm. 

41. The Tribunal is not satisfied that the applicant faces a real chance of serious harm due to his political opinion. 

42. While it may be argued that farmers are a particular social group in India, the applicant’s claims do not amount to a claim that he is at risk of harm because he is from a farming family, rather his being so sets the context for the existence of a land dispute with another landowner. 

43. The Tribunal is not satisfied that the applicants face a real chance of harm for the reasons set out in s 5J(1).  Accordingly, the Tribunal finds that the applicants are not refugees within the meaning of s 5H. 

44. Regarding the complementary protection provisions, the Tribunal is not satisfied that the applicant’s claims regarding a land dispute with neighbor [Mr A] are true.  Firstly, the applicant’s evidence as to how [Mr A] managed to occupy the applicant’s family land was not credible.  It was not explained why the applicant’s family could not drive [Mr A’s] cattle off their land and dismantle structures.  It was not satisfactorily explained why the applicant’s family did not pursue a legal claim, despite the expense of doing so, if valuable land was being forcibly occupied. 

45. It follows from the finding in paragraph 44 that the Tribunal does not accept that the applicant or his family were threatened or physically harmed, that they received telephone threats or that he was roughly handled and pushed, or followed home from the airport.  Moreover, the applicant’s account of physical harm was inconsistent.  He claimed people attacked him with a blunt weapon, later he claimed that they attempted to, but he ran away.  Given the inconsistency in this claim, the Tribunal does not accept that this incident occurred. 

1. In support of his application, the applicant claimed that several members of his family had died as a result of his land dispute, but the Tribunal is not satisfied that this is the case.  The cause of his grandfather and uncle’s death is not evidenced.  While the Tribunal accepts that his cousin was killed and there was a family protest about this, the motive for this killing is not clear from the documents, there is no information about it being related to the applicant’s own family land.  Although at hearing the applicant said the same people who killed his cousin were the ones who attacked him on a bike, this was a late claim and the prior claim was merely that they were persons with muffled faces, implying that their identity was unknown.  The Tribunal is not satisfied that the applicant himself is at risk of significant harm connected with the murder of his cousin. 

2. The foregoing findings are reinforced by the fact that the applicant did not lodge a protection claim until December 2016 despite claiming to have been threatened/attacked in February 2015.  If he was at risk of significant harm, the Tribunal would have expected him to make a protection claim sooner.  That he waited until the outcome of another application tends to indicate that the protection application was lodged to extend the family’s stay in Australia. 

3. It follows from the foregoing findings that the Tribunal does not accept that the applicant reported matters to the police and was denied protection. 

4. The applicant mentioned that his family was at risk from drug dealers and mafia, however he did not elaborate on this claim and the Tribunal is not satisfied that his is at risk of significant harm in relation to such phenomena.

5. No particular claims were made on behalf of the applicant wife and child.  It was submitted by the applicant’s representative that the interests of the child applicant should be considered, as he was born in Australia (in 2013) and has lived here ever since.  The Tribunal acknowledges that it is preferable for the applicant child to continue to live in the country of his birth, however on the evidence before it, is not satisfied that returning to India is attended by a risk of significant harm within the meaning of s 36(2A). 

6. Having considered the evidence as a whole, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicants will suffer significant harm within the meaning of s 36(2A).

7. CONCLUSION

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

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   Genevieve Hamilton
   Member