2007537 (Refugee) - [2021] AATA 2452

2007537 (Refugee) [2021] AATA 2452 (7 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007537
COUNTRY OF REFERENCE:                   India
MEMBER:Michael Hawkins AM
DATE:7 May 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 May 2021 at 7:43am

CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – particular social group – female homosexual – credible witness – fear of telling conservative family – possible physical harm – being forced into an arranged marriage – consequence of being disowned – right to enter and reside in Nepal – expired Indian passport – tolerance of homosexuality in Nepal – single women – sexual harassment or violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ECY17 v Minister for Immigration & Anor [2020] FCCA 2989
MIMAC v SZRHU [2013] FCAFC 91
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 Immigration and Border Protection on 9 September 2015 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 12 November 2014. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Migration Regulations”).
On 14 August 2017 the First Tribunal affirmed the delegate’s decision. That decision was set aside by the Federal Circuit Court on 23 April 2020 by consent. The matter is now before the Tribunal pursuant to an order of the Court.
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…

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 2007537 (Refugee)

Details

AGLC: 2007537 (Refugee) [2021] AATA 2452
Case: [2021] AATA 2452
Decision Date: 7 May 2021

CaseChat Overview and Summary

This matter concerned an application for a Protection visa by a woman from India. The applicant claimed to be a Hindu and a citizen of India, alleging that she had experienced unwanted attention and pressure from males during her adolescence and college years, which led her to question her sexuality. She further claimed that she feared being disowned by her conservative family and potentially facing physical harm or being forced into an arranged marriage if returned to India. The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether she satisfied the refugee criterion or, alternatively, was entitled to complementary protection.

The Tribunal considered the applicant's claims in light of the relevant guidelines and country information. The core legal issue was whether the applicant's fear of harm constituted a well-founded fear of persecution for a Convention reason, or if she faced a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia, thereby entitling her to complementary protection under section 36(2)(aa) of the Migration Act 1958 (Cth). The Tribunal assessed the credibility of the applicant's witness testimony and the objective country information regarding the treatment of homosexual individuals and single women in India, as well as the potential for her to enter and reside in Nepal.

The Tribunal concluded that the applicant did not meet the criteria for a protection visa. While acknowledging the applicant's stated fears, the Tribunal found that the evidence did not establish a real chance of significant harm upon return to India, nor did it satisfy the requirements for complementary protection. The Tribunal's reasoning involved an assessment of the likelihood of the feared harm occurring and whether such harm was a necessary and foreseeable consequence of removal. Ultimately, the Tribunal affirmed the decision under review, finding that the applicant had not demonstrated that she met the necessary criteria for the grant of a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The applicant is a [age]-year old woman from [Town 1], Gujarat, India. From birth until January 1984, the applicant and her family resided in [Town 1], Gujarat, India. Between January 1984 and November 2007, the applicant and her family resided at [address], India. On 18 September 2007 the applicant lodged an application for a Higher Education Sector visa (TU 573) (“student visa”). On 31 October 2007, the student visa was granted. [In] November 2007, the applicant arrived in Australia. On 11 February 2010, the applicant lodged an application for an Education and Training Sector visa (TU 572) (“student visa”). On 15 April 2010, the student visa was granted. On 29 June 2010, the applicant applied for a Skilled – Graduate visa (VC 485) (“skilled visa”). On 15 November 2011, the skilled visa was granted. The applicant also lodged an application for a Skilled – Independent visa (VB 885) (“permanent visa”). On 18 February 2014, the permanent visa was refused. On 8 March 2014, the applicant lodged an application for review of the permanent visa refusal decision with the Migration Review Tribunal (“MRT”). [In] October 2014, the MRT affirmed the decision. On 12 November 2014, the applicant lodged an application for a Protection visa (XA 866). The applicant attended an interview with the delegate on 1 May 2015. Claims:Summarised from the applicant’s XA 866 protection visa application and written claims The applicant claims she is a Hindu and a citizen of India. The applicant claims that during her childhood, she felt like a boy and she used to dress and behave as a boy, participating in predominately male sports, such as cricket. The applicant claims that when she was approximately 14 or 15 years old, she started to get attention from boys and they would seek to touch her when she participated in sporting games with them. The applicant claims she did not like the attention or the touching. The applicant claims that in 1997, she commenced studying a [degree] at an all-girls college. The applicant claims that during her time at the college she started to question her sexuality when she noticed that she did not enjoy male attention, which was in contrast to the views of other girls in her college. The applicant claims that at college, a man named [Mr A] started to pay her attention and asked her to be his girlfriend. The applicant claims she was pressured into accepting his offer of a relationship to stop the unwanted attention and teasing by the other girls in her college. The applicant claims that during her relationship with [Mr A], the applicant was confused and did not like [Mr A] buying her gifts. The applicant claims that after approximately one month, [Mr A] came to the applicant’s home and tried to kiss her. The applicant claims she did not like the experience and asked him to leave her home immediately. The applicant claims that after he left the applicant washed her face 9-10 times. The applicant claims she stopped talking to [Mr A]. The applicant claims that a few days later, [Mr A] came to the applicant and told her that it was his right to kiss her. The applicant claims she told him she did not like such things and slapped him. The applicant claims [Mr A] then left and the applicant has not spoken to or seen [Mr A] since.

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 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 applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The applicant is a [age]-year old woman from [Town 1], Gujarat, India. From birth until January 1984, the applicant and her family resided in [Town 1], Gujarat, India. Between January 1984 and November 2007, the applicant and her family resided at [address], India. On 18 September 2007 the applicant lodged an application for a Higher Education Sector visa (TU 573) (“student visa”). On 31 October 2007, the student visa was granted. [In] November 2007, the applicant arrived in Australia. On 11 February 2010, the applicant lodged an application for an Education and Training Sector visa (TU 572) (“student visa”). On 15 April 2010, the student visa was granted. On 29 June 2010, the applicant applied for a Skilled – Graduate visa (VC 485) (“skilled visa”). On 15 November 2011, the skilled visa was granted. The applicant also lodged an application for a Skilled – Independent visa (VB 885) (“permanent visa”). On 18 February 2014, the permanent visa was refused. On 8 March 2014, the applicant lodged an application for review of the permanent visa refusal decision with the Migration Review Tribunal (“MRT”). [In] October 2014, the MRT affirmed the decision. On 12 November 2014, the applicant lodged an application for a Protection visa (XA 866). The applicant attended an interview with the delegate on 1 May 2015. Claims:Summarised from the applicant’s XA 866 protection visa application and written claims The applicant claims she is a Hindu and a citizen of India. The applicant claims that during her childhood, she felt like a boy and she used to dress and behave as a boy, participating in predominately male sports, such as cricket. The applicant claims that when she was approximately 14 or 15 years old, she started to get attention from boys and they would seek to touch her when she participated in sporting games with them. The applicant claims she did not like the attention or the touching. The applicant claims that in 1997, she commenced studying a [degree] at an all-girls college. The applicant claims that during her time at the college she started to question her sexuality when she noticed that she did not enjoy male attention, which was in contrast to the views of other girls in her college. The applicant claims that at college, a man named [Mr A] started to pay her attention and asked her to be his girlfriend. The applicant claims she was pressured into accepting his offer of a relationship to stop the unwanted attention and teasing by the other girls in her college. The applicant claims that during her relationship with [Mr A], the applicant was confused and did not like [Mr A] buying her gifts.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 a protection 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 the applicant 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’).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 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 applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The applicant is a [age]-year old woman from [Town 1], Gujarat, India. From birth until January 1984, the applicant and her family resided in [Town 1], Gujarat, India. Between January 1984 and November 2007, the applicant and her family resided at [address], India. On 18 September 2007 the applicant lodged an application for a Higher Education Sector visa (TU 573) (“student visa”). On 31 October 2007, the student visa was granted. [In] November 2007, the applicant arrived in Australia. On 11 February 2010, the applicant lodged an application for an Education and Training Sector visa (TU 572) (“student visa”). On 15 April 2010, the student visa was granted. On 29 June 2010, the applicant applied for a Skilled – Graduate visa (VC 485) (“skilled visa”). On 15 November 2011, the skilled visa was granted. The applicant also lodged an application for a Skilled – Independent visa (VB 885) (“permanent visa”). On 18 February 2014, the permanent visa was refused. On 8 March 2014, the applicant lodged an application for review of the permanent visa refusal decision with the Migration Review Tribunal (“MRT”). [In] October 2014, the MRT affirmed the decision. On 12 November 2014, the applicant lodged an application for a Protection visa (XA 866). The applicant attended an interview with the delegate on 1 May 2015. Claims:Summarised from the applicant’s XA 866 protection visa application and written claims The applicant claims she is a Hindu and a citizen of India. The applicant claims that during her childhood, she felt like a boy and she used to dress and behave as a boy, participating in predominately male sports, such as cricket.