2008272 (Refugee) - [2023] AATA 3669

2008272 (Refugee) [2023] AATA 3669 (28 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Vanessa De Pretis (MARN: 1388116)
CASE NUMBER:  2008272
COUNTRY OF REFERENCE:                   India
MEMBER:Katherine Harvey
DATE:28 July 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 July 2023 at 2:36pm

CATCHWORDS
REFUGEE – protection visa – India – religion – Hindu – Sikh convert – inter-religious marriage – threats of harm by family and community – honour killing – legally changed names – family’s political links provide impunity – delay in applying for protection – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 4, 5H, 5J, 5K, 5L, 5LA, 29, 36, 65, 411, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
EZC18 v MHA [2019] FCCA 464
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 30 April 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) is a [age]-year-old woman and the second named applicant is a [age]-year-old man. The first and second named applicants are married and the third named applicant is their daughter. At the time of application, they claimed to be citizens of the Republic of India (India).
The first and second named applicants first arrived in Australia in May 2009 on a student visa held by the applicant, and they have not departed the country since. The third named applicant was born in Australia on [date] and has not departed the country. They applied for the protection visas on 26 April 2016.
On 30 April 2020, a delegate of the Minister refused to grant the visas.
The review application
On 14 May 2020, the applicants applied for a review of the delegate’s decision. They provided a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
The applicants appeared before the Tribunal on 26 July and 11 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants’ landlords, [Mr A], with whom they used to reside, and his sister [Ms B]. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Punjabi and English languages. Breaks were taken during the first hearing to accommodate the applicant, who self-reported…

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 2008272 (Refugee)

Details

AGLC: 2008272 (Refugee) [2023] AATA 3669
Case: [2023] AATA 3669
Decision Date: 28 July 2023

CaseChat Overview and Summary

The Tribunal considered the application for a protection visa made by a woman, her husband, and their Australian-born daughter. The applicants, who are Indian citizens, claimed they feared harm upon return to India due to the woman's conversion from Hinduism to Sikhism following an inter-religious marriage. They alleged that her family and community opposed the marriage, that her family's political connections would provide impunity for any harm inflicted, and that authorities would not offer protection. The primary legal issue before the Tribunal was whether the applicants met the criteria for a protection visa, specifically concerning the risk of significant harm upon return to India and the eligibility of their Australian-born child.

The Tribunal was required to determine if the applicants faced a real risk of suffering significant harm as a necessary and foreseeable consequence of removal from Australia, as contemplated by section 36(2)(aa) of the Migration Act 1958 (Cth). This involved assessing the credibility of the applicants' claims regarding their religious conversion, the opposition from their families and community, the alleged impunity of their family due to political links, and the likelihood of protection from Indian authorities. Furthermore, the Tribunal had to consider whether the third applicant, an Australian citizen, could be granted a protection visa, given that such visas are only available to non-citizens.

In its reasoning, the Tribunal affirmed the decision under review. It found that the third applicant, being an Australian citizen, did not meet the criterion of being a non-citizen in Australia and was therefore ineligible for a protection visa. While the Tribunal acknowledged the applicants' claims of religious persecution and fear of honour killing due to their inter-religious marriage, it ultimately concluded that the evidence presented did not establish a real risk of significant harm. The Tribunal noted inconsistencies in the applicants' evidence and credibility issues, which led to the affirmation of the original decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicants’ personal details are set out in the application for protection. The applicant is a [age]-year-old woman who was born in [City 1], Punjab, India. She obtained a Bachelor [degree] from [University] in 1997 and arrived in Australia as the holder of a TU572 student visa in 2009. She claims to have been born a Hindu of the Rajput caste, to have married a Sikh and at the hearing she claimed she is now a Sikh. The second named applicant is a [age]-year-old man who was born in [Punjab], India. He claims to have been born a Sikh of the Jat caste. The Tribunal accepts that he and the applicant are married. In India, he worked in [Occupation 1] and in Australia he works as a [Occupation 2]. The third named applicant is a [age]-year-old girl who is the Australian-born daughter of the applicant and second named applicant. The applicant claims that she is being raised as a Sikh.Country of referenceThe applicant and second named applicant The applicant and second named applicant claim that they were born in India and they travelled to Australia on Indian passports. Since arriving in Australia they have both changed their names and they provided their change of name certificates and the biodata pages of their Indian passports, which are held in their current names. The Tribunal is satisfied that the applicant and second named applicant are citizens of India and that India is the receiving country for the purpose of s 36(2)(aa) of the Act. The third named applicant The third named applicant was born in Australia. Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens and visas cannot be granted to Australian citizens (see ss 4 and 29 of the Act). The applicants provided a copy of the third named applicant’s Australian passport biodata page. As discussed at the hearing, the Tribunal is satisfied on the evidence before it that the third named applicant is an Australian citizen. It follows that the third named applicant does not satisfy the requirements of s 36(2) and cannot be granted a protection visa. Mental health At the first hearing, the applicant self-reported having had a panic attack the night before and having had depression after her daughter was born and she was unable to enrol in a different college. In her report, prepared at the request of the applicant’s representative and with the applicant’s consent, [Ms H] reports that the applicant was referred to [Organisation 1] by her representative on 16 February 2021 to address and manage a range of symptoms. [Ms H] advised that she holds a Bachelor of Psychology and a Master’s in Counselling and Psychotherapy and has worked as a Counsellor at [Organisation 1] for 18 months. She reports that the applicant has engaged regularly in counselling sessions over the past 17 months and has attended 25 face-to-face and telephone sessions in that time.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

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 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 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.Summary of claims In her protection visa application, the first named applicant claimed that she came to Australia with her husband to study and get out of trouble in India. She claimed that she and her family unit will be killed because she is a Hindu who secretly married a Sikh in a love marriage, which her family and the local Hindu community were against. She claimed that everyone thinks that she has brought a bad name to family and community, and they want to kill her and her family. She claimed the authorities will not protect her as the Hindus in local government oppose inter-religious marriage. She claimed that it is easy for her family and community members to trace her and her family and kill them, and she changed her name because she was worried people might find her. The applicant appointed a migration agent and on 29 June 2017 the applicant’s representative lodged a submission with the Department that provided additional details about the applicant, her background, her relationship with the second named applicant, her family, her father’s political links, her daughter, the family’s living arrangements in Australia and the applicant’s claims. The submission advised that the applicant is a Hindu from an affluent family in the Rajput family caste, her husband is a Sikh from the Jat caste, that they married in the Sikh temple on [date] 2004 and registered their marriage [in] 2007. The applicant claims she fears that her family would kill her for marrying a Sikh and harming their reputation, and that the males in her family could act with impunity because her father has strong political links to Shiv Sena and the Bharatiya Janata Party (BJP) and the police are ‘hand in glove’ with her father. The following supporting evidence was provided:· a certified statutory declaration from the applicant dated 6 April 2017· certified copies of the applicant’s Indian passport and Indian driver’s licence· a certified copy of the first and second named applicants’ marriage certificate· certified copies of the applicant’s matriculation certificate, secondary school examination, Bachelor [degree] and university results· certified copy of the applicant’s change of name certificate dated [in] March 2014· certified copy of the second named applicant’s Indian passport· certified copy of the third named applicant’s Indian passport, certificate of graduation from preschool, 2016 end of year school report and tennis participation award· statement from [Mr A], the applicant’s landlord with whom they share accommodation, and· 18 articles published between 2010 and 2016 about honour killings in India, including [an article] dated [2012] about the killing of a 25-year-old Jat Sikh man who married a Jat Sikh woman against her family’s wishes in [City 1], where the applicant was born.