2102376 (Refugee)
[2023] AATA 4166
•11 September 2023
2102376 (Refugee) [2023] AATA 4166 (11 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Peter Michalopoulos (MARN: 1569075)
CASE NUMBER: 2102376
COUNTRY OF REFERENCE: India
MEMBER:Nora Lamont
DATE:11 September 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas and refers the applicants to the Minister for Ministerial Intervention under s501J and s417 of the Migration Act.
Statement made on 11 September 2023 at 9:43am
CATCHWORDS
REFUGEE – protection visa – India – decision on the papers – child kidnapping gangs in Punjab – state protection – delay in seeking protection – strong compassionate circumstances – Australian citizen child – serious, ongoing and irreversible harm – health and/or psychological state – Ministerial Intervention requested – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417, 501J
Migration Regulations 1994 (Cth), Schedule 2Any 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 18 February 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of India, applied for the visas on 20 November 2019.
The applicants were represented in relation to the review.
The Tribunal received a submission from the applicant’s representative requesting that a decision be made on the papers and that the applicants request that the Tribunal refer the matter to the Minister for Ministerial Intervention. The Tribunal has therefore made a decision on the papers.
The delegate refused the application as they found the claims to be vague. When requested to give more evidence to the Department the applicants did not respond. The delegate considered that the applicants could return to India and receive effective protection.
Ministerial Intervention
The Tribunal has considered that the applicants have strong compassionate circumstances that would lead to harm of their only child who is an Australian citizen should the applicants be removed from Australia. Ministerial Intervention guidelines state: [1]
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
[1] Ministerial intervention (homeaffairs.gov.au)
The applicants are a married couple with one child who was born in Australia in [year]. The child is now an Australian citizen and has lived in Australia his entire life. The applicants have been on a Bridging Visa E which means they have no work rights and find it difficult to provide for their child.
As this has been ongoing for many years the [primary applicant] is suffering from phycological issues and has been diagnosed with [specified] cancer and had surgery in April of this year. These two factors combined fall under the following Ministerial guideline: [2]
Compassionate circumstances regarding your age and/ or health and/ or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
[2] Ibid
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 (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.
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 habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
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.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant and her spouse came to Australia on a student visa in 2008. The applicant’s student visa was cancelled on 26 August 2016, and she sought review at the AAT. The application for review was affirmed and the applicant sought judicial review at the Federal Circuit Court where the application was again affirmed [in] August 2019. The applicant’s applied for this protection visa on 20 November 2019. The applicant and her spouse had a child in [year] who is now an Australian citizen.
The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s5J(1) and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to their receiving country of India, there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s travelled to Australia on valid Indian passports and claims they are nationals of India. The delegate had no concerns about the applicant’s identity; therefore, the Tribunal has assessed the applicant’s claims against that of India as their country of nationality and receiving country.
There is no evidence before the Tribunal that the applicant’s have the right to enter and reside in any safe third country as per s36(3).
There are no non-disclosure certificates on the applicant’s file.
The primary applicant’s claims for protection are taken from the applicant’s Statutory Declaration dated 20 November 2019 and are summarised as follows:[3]
·Their lives are in danger as they have threats from child kidnapping gangs in Punjab.
·She travelled with her son to Chandigarh Punjab on 20 March 2014 and went to the local market a local man gave her son a candy and he immediately went unconscious. The man tried to take her son away by packing him in a wheat bag, but she was able to get her son released.
·She went to the local police to make a complaint, but no action was taken as her son was not actually kidnapped. She did not discuss this with anyone outside the family and they quietly returned to Australia. They did not mention it to immigration authorities as the child’s life would be in danger.
·We came to know of child begging which is organised begging that involves the abduction of children, and they get away with it and have political and police links.
[3] AAT Folio
Applicant two relies upon applicant one and does not have any claims of his own.
Country Information
Country information provides that whilst the police can be overwhelmed, and corrupt overall protection can be afforded to the applicants.
STATE PROTECTION
5.1 The Constitution of India devolves responsibility for police and public order to individual states and territories. States are responsible for preventing, detecting, registering and investigating crime and prosecuting criminals. The individual Indian State Police Services (see Police) comprise both state-based personnel and national personnel drawn from the central government. Separately, the central government, through the Ministry of Home Affairs (MHA), maintains a number of Central Armed Police Forces. These centralised forces manage internal security, including border control and protection of major infrastructure, under control of the Army (see Military). The MHA also oversees centralised police organisations, including the Central Bureau of Intelligence, Bureau of Research and Development, NCRB, National Investigation Agency, Training Academies and the National Disaster Response Force. These agencies may share information with their state counterparts. The central government provides financial assistance to the state governments under the Scheme of Modernization of State Police Forces for weaponry, communication, equipment, mobility, training and other infrastructure. In practice, funds under this scheme are not fully utilised across states.
Police
5.4 India’s constitution devolves responsibilities for police and public order to the states. Each state and union territory maintains its own police force, and two-thirds of this cohort hold junior ranks. The national corps within the Indian Police Service (IPS) are selected by competitive exams, hold senior ranking positions and enjoy other benefits, including housing and transport. According to a 2018 survey across 22 states, the Centre for the Study of Developing Societies found less than 25 per cent of Indians trust the police highly (compared to 54 per cent for the army). The World Justice Project’s 2020 Rule of Law Index ranked India 114 out of 128 countries with respect to order and security (see also Corruption). This measure considered issues such as crime, civil conflict and use of violence to redress personal grievances. Centralised Indian Police Service
5.5 Article 312 of the constitution establishes a centralised IPS. The IPS is organised into state cadres to provide senior-level leadership to state police forces and to centralised forces. The MHA is responsible for IPS officers and policy decisions, including structure, training, allocation, confirmation, pay, allowances and disciplinary matters. State and central governments review IPS budget allocations every five years. As at March 2019, there were 4,982 IPS officers spread across 26 state cadres, with the states of Uttar Pradesh, West Bengal and Maharashtra having the most IPS officers, and Uttarakhand, Tripura and Sikkim having the least. The MHA is also responsible for a range central police function (see State Protection).
State Police Services
5.6 According to The Economist, India’s 1.9 million police officers ‘do not enjoy a good reputation’. However, local sources report police effectiveness is hampered by lack of resourcing and infrastructure. Police budgets, on average, account for 3-5 per cent of state expenditure. The Status of Policing in India Report 2019 (which used official data drawn from the NCRB and the Bureau of Police Research and Development to assess police capacity and adequacy) found inadequate infrastructure (physical, technological, human), resourcing and training compromised police operations. According to the report, approximately 240 police stations across India have no access to vehicles; 214 have no access to telephones; 70 have no access to wireless connections; and 24 have no access to either telephone or wireless connections. On average, police stations in India have six computers per station, but states like Assam and Bihar have an average of less than one computer per station.
5.7 Lack of ‘boots on the ground’ is another key capacity problem. Police in India reportedly work at 77 per cent of their sanctioned personnel capacity. This equates to around 1.2 ordinary police officers per 1,000 people, about half the level recommended by the UN. Long working days and unpaid overtime are common complaints.
5.8 Representation of SCs, STs, OBCs and women in the police forces is poor, with large vacancies in these reserved positions. SCs, STs, OBCs and women are less likely to be recruited/posted at officer-level ranks than are general police personnel. The India Justice Report 2019 found women account for 7 per cent of police personnel.
5.9 To safeguard police operational autonomy from political interference, the Supreme Court directed states to introduce legal amendments to ensure police officers be guaranteed a minimum tenure of two years to function efficiently. However, in practice, over a quarter of police reportedly consider pressure from politicians is the biggest hindrance in crime investigation. Undermining safeguards, premature transfers of personnel are higher during election years, with the states of Uttar Pradesh and Haryana having the highest transfer rates. Premature transfers are also a common consequence of non-compliance with political pressure. The Economist reports lack of ‘man-power’ and ‘meddling politicians’, were in the top three problems facing police officers in India.
Findings
The applicants requested the Tribunal make a decision on the papers and without further information provided to the Tribunal, the Tribunal had little information to go on in relation to the applicants claims.
The Tribunal does not accept that the applicant’s son was nearly abducted, went unconscious and that the police did nothing about it. The applicant has not provided any further evidence to support her claims and this one incident happened some nine years ago. The applicant claims this happened in 2014 and she did not apply for a protection visa until 2019 which was five years later. The Tribunal considers that if the applicant held real fear, she would have put in an application for a protection visa after she returned to Australia in 2014, not wait some five years. In addition, it wasn’t until the rejection of her application in the federal circuit court, and she had exhausted her appeals that the applicant applied for a protection visa.
Given these findings the Tribunal does not accept that if the applicant’s are returned to India, they would face a real chance of persecution from or their associates. The Tribunal finds that the applicants do not face a well-founded fear of persecution as per s5J(1) of the Act and therefore the applicants are not refugees as within the meaning of s5H(1).
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to India, there is a real risk that the applicants will suffer significant harm from child begging gangs or the politicians or police or anyone associated with them. The Tribunal is therefore not satisfied that the applicant’s meet the alternative provisions in s36(2)(aa).
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.
There is no suggestion that the applicant’s satisfy s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas and refers the applicants to the Minister for Ministerial Intervention under s501J and s417 of the Migration Act.
Nora Lamont
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
-
Remedies
0
0
0