2118260 (Refugee) - [2023] AATA 2574

2118260 (Refugee) [2023] AATA 2574 (13 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Amarjit Singh Anand
CASE NUMBER:  2118260
COUNTRY OF REFERENCE:                   India
MEMBER:Katherine Harvey
DATE:13 June 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 June 2023 at 2:56pm
CATCHWORDS
REFUGEE – Protection visa – India – victim of an honour killing – belongs to lower caste – offender history report – intervention order was still in place – domestic violence – claimed fear is not genuinely held or objectively well founded – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 499
Migration Regulations 1994, Schedule 2
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 15 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
CLAIMS AND EVIDENCE
Background
The applicant is a [age]-year-old man who claims to be a citizen of the Republic of India (India). He was born and lived in [Town 1], Haryana, India. He first arrived in Australia on a student visa on [date] July 2008. He returned to India five times between 2010 and 2017. On his trip to India in 2010–11, he married [Ms A] and his wife joined him in Australia in 2013. On [date] May 2016, she returned to India.
In his application, the applicant provided details about his wife, and his (now late) mother, [and siblings] who live in India.
The applicant applied for a protection visa on 18 August 2017.
Protection visa application
In his application, the applicant made the following claims.
The applicant claimed that before coming to Australia in 2008, he developed relations with [Ms A]. They married on [date] December 2011. His wife is a Khatri by caste and he is a Jat by caste.
The applicant claimed that his wife’s parents were against the relationship from the beginning and encouraged his wife not to go ahead with the marriage. His in-laws are very strict, religious, orthodox and strongly believe in the caste system. In their family it is considered a taboo if the girl gets married to a boy outside their caste.
The applicant claimed that they married in 2011 against the wishes of his in-laws and his wife joined him in Australia in 2013. They were living happily until his wife decided to go back to India on [date] May 2016 to visit her parents and ask for forgiveness for marrying his against their wishes.
The applicant claimed that…

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 2118260 (Refugee)

Details

AGLC: 2118260 (Refugee) [2023] AATA 2574
Case: [2023] AATA 2574
Decision Date: 13 June 2023

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse to grant the applicant, a citizen of India, a protection visa. The applicant claimed he feared persecution in India due to his marriage to a woman of a higher caste, alleging his in-laws were influential, supported the caste system, and had threatened him with death, citing the prevalence of honour killings in India. He also claimed his in-laws had threatened his mother and brother.

The legal issues before the court were whether the applicant had a well-founded fear of persecution for a refugee nexus reason, or if he was owed complementary protection, or if he was a member of the same family unit as a person who was a refugee or owed complementary protection. The court was required to determine if the applicant had satisfied the statutory elements for the grant of a protection visa, including whether his claimed fear was genuinely held and objectively well-founded, or if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, he faced a real risk of suffering significant harm.

The court reasoned that the mere assertion of a fear of persecution or risk of significant harm does not establish its genuineness or objective well-foundedness; the onus remained on the applicant to satisfy the Tribunal of all statutory elements. The court noted that it was not required to make the applicant's case for him or uncritically accept his allegations. The decision under review was affirmed because the applicant did not satisfy the criterion in s 36(2) of the *Migration Act 1958* (Cth), as there was no suggestion he met the requirements for being a member of the same family unit as a person who satisfied the refugee or complementary protection criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).CLAIMS AND EVIDENCEBackground The applicant is a [age]-year-old man who claims to be a citizen of the Republic of India (India). He was born and lived in [Town 1], Haryana, India. He first arrived in Australia on a student visa on [date] July 2008. He returned to India five times between 2010 and 2017. On his trip to India in 2010–11, he married [Ms A] and his wife joined him in Australia in 2013. On [date] May 2016, she returned to India. In his application, the applicant provided details about his wife, and his (now late) mother, [and siblings] who live in India. The applicant applied for a protection visa on 18 August 2017. Protection visa application In his application, the applicant made the following claims. The applicant claimed that before coming to Australia in 2008, he developed relations with [Ms A]. They married on [date] December 2011. His wife is a Khatri by caste and he is a Jat by caste. The applicant claimed that his wife’s parents were against the relationship from the beginning and encouraged his wife not to go ahead with the marriage. His in-laws are very strict, religious, orthodox and strongly believe in the caste system. In their family it is considered a taboo if the girl gets married to a boy outside their caste. The applicant claimed that they married in 2011 against the wishes of his in-laws and his wife joined him in Australia in 2013. They were living happily until his wife decided to go back to India on [date] May 2016 to visit her parents and ask for forgiveness for marrying his against their wishes. The applicant claimed that was the last time his saw her. Although she had a valid visa to return to Australia she has not returned and he does not know her whereabouts. The applicant claimed that he complained to the police but his complaint has not yielded any results as his in-laws are very influential and the police in India are known to be corrupt. The applicant claimed that he had written a detailed representation to the Senior Superintendent of Police of district in India however he has not received any response to date. The police in India are known to be corrupt and biased. The applicant claimed that his in-laws threatened him with dire consequences if he make any attempt to contact or meet his wife. They have categorically told him that they will kill him if they have to, in case he tried to come to India to contact or meet his wife. The applicant claimed that his mother and brother have also been threatened by his in-laws. They are so scared and have advised him not to come back. The applicant claimed that his in-laws are forcing him to take divorce from his wife. He claimed that he is madly in love with his wife. However, he is aware of the honour killings in India and is really scared as one of his childhood friends was killed in similar circumstances by his in-laws. He thinks that he will also meet the same fate if he returned to India. His in-laws are very influential and they are staunch supporters of the caste system. They will locate him and then harm him.

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 criterion 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.Analysis, reasons and findings The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or he is owed complementary protection, or he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection. For the following reasons has concluded that the decision under review should be affirmed. Country of reference The applicant claims that he was born in [Town 1], Haryana, India and is a citizen of India. He provided a copy of the biodata page of his Indian passport with his application. The Tribunal is satisfied that the applicant is a citizen of India and that India is the receiving country for the purpose of s 36(2)(aa) of the Act. Assessment of claims and evidence The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]His wife’s whereabouts[1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.