2214288 (Refugee) - [2023] AATA 2507

2214288 (Refugee) [2023] AATA 2507 (23 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Miss Amen Karim
CASE NUMBER:  2214288
COUNTRY OF REFERENCE:                   India
MEMBER:David James
DATE:23 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 June 2023 at 2:44pm
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit and Family Court remittal – caste, religion and imputed political opinion – member of low caste and Sikh – brother a university student union leader and anti-government activist – family supporters of Sikh separatism – applicant and family members attacked and brother shot – father suspended, imprisoned and dismissed from job – fear of harm from ruling Hindu nationalist party and girlfriend’s politician mother – delay in applying for protection – applied after student visa cancelled and period as unlawful non-citizen – intention to apply for sponsored working visa – no personal political profile – family still living in local area – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5H(1), 36(2)(a), (aa), 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
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 Immigration and Border Protection on 17 April 2017 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 13 June 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an…

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.

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Details

Case: [2023] AATA 2507
Decision Date: 23 June 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual from India. The applicant claimed to fear persecution upon return to India due to his family's low caste status, their perceived support for Sikh separatism, and alleged persecution by the ruling Hindu nationalist Bharatiya Janata Party (BJP). The Federal Circuit and Family Court was required to determine whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under the Act, or if there was a real risk of significant harm as a necessary and foreseeable consequence of his removal to India.

The court considered the applicant's claims, which included allegations of attacks on his brother due to his student union leadership and low caste status, his father's suspension and imprisonment stemming from workplace disputes and property issues, and a violent confrontation involving his parents. The applicant also asserted his family's support for the "Khalistan" movement and his fear of retribution from the BJP and its associated groups, such as the RSS and Shiv Sena. The court was tasked with assessing the credibility of these claims and evaluating them against available country information and relevant guidelines, including the Refugee Law Guidelines and Complementary Protection Guidelines.

The court applied the "real risk" test, which is equivalent to the "real chance" test for assessing a well-founded fear of persecution. It considered the applicant's assertions regarding his family's caste, their alleged political affiliations, and the specific incidents of violence and legal troubles they had faced. The court also took into account the applicant's delay in applying for protection and his stated intention to seek a sponsored working visa. Ultimately, the court affirmed the delegate's decision to refuse the protection visa, finding that the applicant had not established a well-founded fear of persecution or a real risk of significant harm.

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 (Department), 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.CONSIDERATION OF Claims and evidence The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to India he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Claims The applicant, when applying for the visa, on 13 June 2017 stated that was seeking protection in Australia; ‘Due to the political affiliations of my family, I fear for my safety if I have to return to India’. He further indicated as to his ability to obtain help and assistance that; ‘When my brother was attacked we had sought assistance from police. Due to the issues with my father noted in the attached declaration, no assistance has been provided’. The applicant’s claims for protection as outlined in his accompanying Statutory Declaration of 12 April 2017 are (in summary) that:·His family belongs to [a Caste].·In 2012 his brother became the President of [a] University Student Union and in about June or July 2012 his brother was attacked by 5-6 people and shot in the abdomen by a person called [Mr A] because they did not believe his brother being of a lower caste should hold that position.·That he and his brother had earlier been attacked on their way home in 2011 and his brother had been confined to bed rest for 6-8 months due to his injuries.·His father was [an Occupation 1] in Punjab and his father’s colleague committed suicide and his father was then blamed for his colleague’s suicide and suspended from duty during an investigation into the suicide.·His father’s colleague’s wife extorted $12,000 from the applicant’s family in order to stop the investigation into his father. This investigation was later discontinued, and the applicant’s father returned to work as [an Occupation 1].·Later in June or July 2013, the applicant’s parents when returning to their home were confronted by a group of people who tried to run his father’s car off the road. When his father stopped his car, he and the applicant’s mother were attacked resulting in the applicant’s mother suffering a broken arm and his father also being injured. The applicant believes this attack was a result of his father’s role as [an Occupation 1] and his father’s membership of a lower caste, the [Caste].·His father was in 2014 blamed for the death of a [Country] citizen, [Mr B] who had been involved in a property dispute with his family in India resulting in his father being imprisoned for 2 ½ years before being released and the charges against him being discontinued. However, his father lost his job.·He believes that his family has been targeted because of their lowly caste.·He fears returning to India as his life will be under threat because of his family’s caste and any retribution that may be sought against him and his family from the BJP (Bharatiya Janata Party).Department interview

Decision

Reasons for decision

In the applicant’s Statutory Declaration of 28 March 2019, he repeats his claims and identifies the reasons for his application or protection at paragraph 1 as being that:a. difference in the Caste and creed, b. threat from the Political Party which is ruling party of India – the BJP party,C. false case registered against my family members, andd. we as a family support Memorandum 2020 for the making of “Khalistan”.At paragraph 7, he states that:Threats from political parties – Another reason why I am unable to return to India and seeking protection from India is from currently ruling party (BJP). This is a purely fundamental Hindu party. They have young followers who are known as “RSS” and “Shiv Sena”. They are known to suppress the rights and liberties of other people from different religions and castes.Further at paragraph 20 and 21 he states that:We support Memorandum 2020 making of Khalistan. One of the other reason why I cannot go back to India is because I support this movement.This memorandum, it is clearly written that all schedule castes should be treated equally and all job opportunities will be given to us.The applicant in this Declaration also addressed concerns raised by the delegate in his interview with the Department and states that whilst on a Bridging visa E he had not worked. Further that he had transferred money to India in accordance with the explanation provided by his father as outlined above at paragraph 20, and that he cannot relocate within India, and that after arriving in Australia in 2014 he had hoped to attain Permanent Residency through his studies and skills.Delegate’s decision The delegate’s decision of 17 April 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant was of a lower caste but on an assessment of the applicant’s truthfulness and overall credibility the delegate was not satisfied that the applicant faced a real chance of persecution involving serious harm and/or a real risk of significant harm and as such that the applicant was not a person to who, Australia owed protection obligations under either ss 36(2)(a) or 36 (2)(aa) of the Act.Submission of 28 January 2022 The applicant’s representative forwarded a written submission repeating the applicant’s claims and a further statement from the applicant dated 1 February 2022 to the Tribunal in which the applicant states that his claims for protection remain the same and that he fears persecution on the basis of his membership of the Dalits group (lowly caste) in India and relies on his earlier declaration. He states that he has felt safe and secure in Australia and that his family have been victims of targeted attacks in India due to their lower caste as they are considered Dalits in India. He further states that his family are not supporters of the BJP but rather support the ‘Akali’ party in Punjab and repeats his earlier claims as to his fear of the BJP. The submission also contained copies of documents that had earlier been provided to the Department and country information and relevant media reports.Submission of 21 February 2022

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.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 (Department), 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.CONSIDERATION OF Claims and evidence The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to India he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Claims The applicant, when applying for the visa, on 13 June 2017 stated that was seeking protection in Australia; ‘Due to the political affiliations of my family, I fear for my safety if I have to return to India’. He further indicated as to his ability to obtain help and assistance that; ‘When my brother was attacked we had sought assistance from police. Due to the issues with my father noted in the attached declaration, no assistance has been provided’. The applicant’s claims for protection as outlined in his accompanying Statutory Declaration of 12 April 2017 are (in summary) that:·His family belongs to [a Caste].·In 2012 his brother became the President of [a] University Student Union and in about June or July 2012 his brother was attacked by 5-6 people and shot in the abdomen by a person called [Mr A] because they did not believe his brother being of a lower caste should hold that position.·That he and his brother had earlier been attacked on their way home in 2011 and his brother had been confined to bed rest for 6-8 months due to his injuries.·His father was [an Occupation 1] in Punjab and his father’s colleague committed suicide and his father was then blamed for his colleague’s suicide and suspended from duty during an investigation into the suicide.·His father’s colleague’s wife extorted $12,000 from the applicant’s family in order to stop the investigation into his father. This investigation was later discontinued, and the applicant’s father returned to work as [an Occupation 1].·Later in June or July 2013, the applicant’s parents when returning to their home were confronted by a group of people who tried to run his father’s car off the road. When his father stopped his car, he and the applicant’s mother were attacked resulting in the applicant’s mother suffering a broken arm and his father also being injured. The applicant believes this attack was a result of his father’s role as [an Occupation 1] and his father’s membership of a lower caste, the [Caste].·His father was in 2014 blamed for the death of a [Country] citizen, [Mr B] who had been involved in a property dispute with his family in India resulting in his father being imprisoned for 2 ½ years before being released and the charges against him being discontinued. However, his father lost his job.·He believes that his family has been targeted because of their lowly caste.·He fears returning to India as his life will be under threat because of his family’s caste and any retribution that may be sought against him and his family from the BJP (Bharatiya Janata Party).Department interview