2103657 (Refugee) - [2022] AATA 718

2103657 (Refugee) [2022] AATA 718 (8 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2103657
COUNTRY OF REFERENCE:                   India
MEMBER:David McCulloch
DATE:8 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 February 2022 at 9:31am
CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh convert to Christianity in Australia – marriage to Christian woman in Australia and parents’ cancellation of arranged marriage in home country – community ostracism of family and threat of honour killing – credibility – delay in applying for protection – inconsistent claims and evidence – visa, study, work and relationship history – criminal convictions and sentences, cancellation of visa and immigration detention – mental health – no religious practice now – voluntary travel to home country – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), (2A)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
CSV15 v MIBP [2018] FCA 699
EZC18 v MHA [2019] FCA 2143
GLD18 v MHA [2020] FCAFC 2
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 dependants.
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 9 March 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 28 September 2016. The delegate refused to grant the visa.
On 14 May 2021, the Tribunal sent a hearing invitation to the applicant to give evidence and present arguments on 24 June 2021 via video conference. The hearing was not to be held in person due to the COVID-19 pandemic. On 24 May 2021, the applicant notified the Tribunal that he had ongoing family law proceedings around the same time as the scheduled Tribunal hearing and requested more time to prepare for his merits review matter.
On 2 June 2021, the Tribunal postponed the hearing to 25 August 2021 to be held in person at the Tribunal Sydney registry and notified the applicant of such.
On 7 July 2021, for reasons unrelated to the applicant, the Tribunal rescheduled the hearing to 31 August 2021 to be held in person at the Tribunal Sydney registry.
On 5 August 2021, due to the ongoing stay-at-home order from the NSW Government related to…

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 2103657 (Refugee)

Details

AGLC: 2103657 (Refugee) [2022] AATA 718
Case: [2022] AATA 718
Decision Date: 8 February 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, who had entered Australia in 2008, claimed to be a Sikh convert to Christianity in Australia, whose arranged marriage in India had been cancelled by his parents, leading to community ostracism and threats of honour killing. The Tribunal was required to assess the applicant's credibility and determine whether, on accepted claims, the criteria for protection were fulfilled.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Act, or alternatively, the complementary protection criterion under section 36(2)(aa). This involved considering the meaning of "significant harm" and the circumstances in which a real risk of such harm would not be taken to exist, as outlined in sections 36(2A) and (2B) of the Act. The Tribunal also had regard to Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information from the Department of Foreign Affairs and Trade.

The Tribunal concluded that the decision under review should be affirmed, finding that the applicant's credibility was not established. This conclusion was informed by a detailed examination of the applicant's visa, study, work, and relationship history, which revealed a pattern of inconsistent claims and evidence. Notably, the applicant had declared no previous convictions but was later held in custody in Australia on a criminal matter. Furthermore, the applicant had travelled voluntarily to India for a short period in February 2016. The Tribunal found no suggestion that the applicant satisfied section 36(2) on the basis of being a member of the same family unit as a person who held a protection visa. Consequently, the Tribunal determined that the applicant did not satisfy the criteria for the grant of a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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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. The Tribunal has before it the DFAT Country Information Report – India, December 2020, a copy of which was provided to the applicant in advance of the hearing.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The applicant entered Australia on a TU 573 (Higher Education) visa in 2008. The applicant was granted a further TU 572 (Vocational Education and Training Sector) visa, which ceased on 10 December 2011 for non-compliance. The applicant then lodged an application for a UK 820 (Partner Visa) on 10 October 2011, which was refused on 05 December 2014. The applicant sought a review of that decision at the Tribunal, which was affirmed on 14 April 2016. The applicant then sought Judicial Review with the Federal Court [in] May 2016, which he subsequently withdrew. The applicant then applied for a Nomination Business Sponsorship on 07 July 2015, which was refused on 02 October 2015. The applicant then lodged a UC 457 (Temporary Work (Skilled) Visa) application on 16 February 2016, which was refused on 02 November 2016. The applicant sought a review of that decision at the Tribunal, which was finalised for no-jurisdiction on 15 May 2019. The applicant applied for a protection visa on 28 September 2016. The applicant was refused by the Department on 09 March 2021. The applicant applied for a review of that decision on 23 March 2021. The following information is apparent from the application for protection forms. The applicant was born on [Date] in Haryana Province, Ambala City, India. The applicant speaks, reads and writes Punjabi, Hindi and English. The applicant has a brother, mother and father who reside in Ambala, India. The applicant has a sister who resides in Australia. The applicant indicated in his Department interview that his parents also resided in Australia for some time. The applicant also has an ex-partner and former stepson who reside in Australia. The applicant is in contact with family in India via telephone. The applicant does not provide details of any addresses lived at in India. The applicant declared no previous convictions in his application for protection, however, he was later held in custody in Australia on a criminal matter. The highest level of education obtained by the applicant in India was Senior School in March 2005, at [a School], Ambala City, India. Since arrival in Australia the applicant studied, from June 2008 until June 2010, an Advanced Diploma of [Subject 1] and a Certificate IV and Certificate III in [Subject 2] at [Institution 1], and from March 2016 a Diploma of [Subject 3] at [Institution 2]. The applicant worked at [Employer 1] as [Occupation 1] and [Occupation 2] from January 2011 until December 2013, at [Employer 2] as [Occupation 3] from February 2014 until May 2015, at [Employer 3] as [Occupation 4] from April 2015 until June 2015, and at the same company as [Occupation 5] from July 2015 until ‘current’ (the applicant has since entered detention). After first arriving in Australia, the applicant travelled to India from [date] February 2016 until [date] February 2016 to visit his sick mother.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).DECISION

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. The Tribunal has before it the DFAT Country Information Report – India, December 2020, a copy of which was provided to the applicant in advance of the hearing.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The applicant entered Australia on a TU 573 (Higher Education) visa in 2008. The applicant was granted a further TU 572 (Vocational Education and Training Sector) visa, which ceased on 10 December 2011 for non-compliance. The applicant then lodged an application for a UK 820 (Partner Visa) on 10 October 2011, which was refused on 05 December 2014. The applicant sought a review of that decision at the Tribunal, which was affirmed on 14 April 2016. The applicant then sought Judicial Review with the Federal Court [in] May 2016, which he subsequently withdrew. The applicant then applied for a Nomination Business Sponsorship on 07 July 2015, which was refused on 02 October 2015. The applicant then lodged a UC 457 (Temporary Work (Skilled) Visa) application on 16 February 2016, which was refused on 02 November 2016. The applicant sought a review of that decision at the Tribunal, which was finalised for no-jurisdiction on 15 May 2019. The applicant applied for a protection visa on 28 September 2016. The applicant was refused by the Department on 09 March 2021. The applicant applied for a review of that decision on 23 March 2021. The following information is apparent from the application for protection forms. The applicant was born on [Date] in Haryana Province, Ambala City, India. The applicant speaks, reads and writes Punjabi, Hindi and English. The applicant has a brother, mother and father who reside in Ambala, India. The applicant has a sister who resides in Australia. The applicant indicated in his Department interview that his parents also resided in Australia for some time. The applicant also has an ex-partner and former stepson who reside in Australia. The applicant is in contact with family in India via telephone. The applicant does not provide details of any addresses lived at in India. The applicant declared no previous convictions in his application for protection, however, he was later held in custody in Australia on a criminal matter. The highest level of education obtained by the applicant in India was Senior School in March 2005, at [a School], Ambala City, India. Since arrival in Australia the applicant studied, from June 2008 until June 2010, an Advanced Diploma of [Subject 1] and a Certificate IV and Certificate III in [Subject 2] at [Institution 1], and from March 2016 a Diploma of [Subject 3] at [Institution 2]. The applicant worked at [Employer 1] as [Occupation 1] and [Occupation 2] from January 2011 until December 2013, at [Employer 2] as [Occupation 3] from February 2014 until May 2015, at [Employer 3] as [Occupation 4] from April 2015 until June 2015, and at the same company as [Occupation 5] from July 2015 until ‘current’ (the applicant has since entered detention). After first arriving in Australia, the applicant travelled to India from [date] February 2016 until [date] February 2016 to visit his sick mother.