2216393 (Refugee)

Case [2024] AATA 1300

2216393 (Refugee) [2024] AATA 1300 (17 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Iqbal Chaudhry

CASE NUMBER:  2216393

COUNTRY OF REFERENCE:                   India

MEMBER:David James

DATE:17 January 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 January 2024 at 10:55am

CATCHWORDS

REFUGEE – Protection Visa – India – religious beliefs– a follower of Rampal – applicant was properly invited to a hearing – applicant failed to attend hearing – applicant didn’t provide any additional information and/or evidence – applicant’s fears of persecution are not well-founded – delay in applying for protection in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 56, 426, 499

Migration Regulations 1994, Schedule 2

CASES

ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a citizen of India, applied for the visa on 13 April 2018. 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.

  3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 17 September 2019. The applicant provided a copy of the delegate’s decision with the application for review.

  4. The Tribunal affirmed the delegate’s decision, and that decision was set aside by consent by the Federal Circuit and Family Court of Australia (Division 2) at Brisbane on [date November] 2022. The matter is now before the Tribunal pursuant to an order of that Court.

  5. The applicant was represented in relation to the review by Mr Chaudhry of…

Continue reading 2216393 (Refugee)

Sign in free to access the full text

Details
AGLC
2216393 (Refugee) [2024] AATA 1300
Case
[2024] AATA 1300
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, an Indian national, claimed to fear persecution in India due to his adherence to the teachings of Jagat Guru Ram Pal Jee Maharaj. The applicant alleged that fundamentalists threatened him with death if he continued to follow this spiritual leader, whose followers had reportedly been harassed and tortured. The applicant also asserted that India lacked the resources to address such issues, rendering the country unsafe. The 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, and whether there was a real chance of persecution upon return to India. Alternatively, the court had to consider if there were substantial grounds to believe that the applicant would suffer significant harm as a necessary and foreseeable consequence of removal to India.

The court considered the documentary evidence, including the applicant's protection visa application, media reports concerning Rampal's conviction for murder, and previous court orders. The Tribunal had previously affirmed the delegate's decision to refuse the visa, finding that while the applicant had a subjective fear and had been present during Rampal's arrest, he had not established he was a devout follower or had received specific threats. The Tribunal also noted country information suggesting relocation and employment opportunities were available in India, and that the applicant could relocate to Delhi. However, a previous Federal Circuit and Family Court decision had set aside the Tribunal's affirmation due to jurisdictional error, specifically the failure to engage in an active intellectual process. Following this, the Tribunal notified the applicant of a reconsideration of his application, inviting him to attend a hearing and provide further information. The applicant was invited to a hearing, but failed to attend and did not provide any additional information or evidence.

Given the applicant's failure to attend the hearing or provide further evidence, the Tribunal concluded that the applicant's fears of persecution were not well-founded. The Tribunal found that the applicant had not demonstrated a well-founded fear of persecution for any of the five prescribed reasons, nor had he established substantial grounds for believing he would suffer significant harm upon return to India. The Tribunal also noted the delay in the applicant's application for protection in Australia. Consequently, the Tribunal affirmed the delegate's decision to refuse the protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issues in this review are 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 they 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.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents that have been considered by the Tribunal:·The applicant’s protection visa application submitted on 13 April 2018, the annexed ‘My Claims for Protection’ document in which he outlined his claims for protection, and the annexed copy of the applicant’s bio data page of his Indian passport. In the applicant’s ‘My Claims for Protection’ document he, in part and at paragraphs 8 to 14 and 17, stated that:I am a born Hindu.I started following Jagat Guru Ram Pal Jee MAHARAJ, as I was in the impression that I was on the right path with him.But fundamentals in India did not like me following him and started threatening me. They told me stop following Jagat Guru Ram Pal Jee MAHARAJ otherwise I will be killed.With my leader in the prison, the followers have been harassed and tortured frequently and my life will be in danger if I had stayed in India. Therefore, I decided to leave India to avoid this situation. Since I got an Australian Tourist Visa I thought that it was more practical for me to leave India and stay in this peaceful country, Australia without any fear whatsoever.I will provide detailed account later on.There is no safety in India as anarchy and restless is on the rise and India as a State does not have enough resources to cope with all these problems. They get so many complaints like this and do not take them seriously…I strongly believe that my life would be at risk once and if I am go back to India.·Copies of media reports forwarded to the Department by the applicant on 2 September 2019, titled: ‘Haryana: Self-Styled Godman Rampal found guilty in two murder cases’ (Times of India report of 11 October 2018); ‘Hisar on edge as verdict in 2 murder cases against Rampal on Thursday’ (TNN report of 11 October 2018); and, ‘India guru Rampal sentenced to life in jail form murder’ (BBC report of 16 October 2018);·The applicant’s application for review lodged on 17 September 2019 and the annexed delegates decision record of 3 September 2019; ·The administrative and movement records of the Department relating to the applicant; and·An Order of the Federal Circuit and Family Court of Australia (Division 2) at Brisbane on [date November] 2022 in the matter of [deleted], in which, by consent, the court noted that:The first respondent concedes that the decision of the second respondent is affected by jurisdictional error on the basis that the second respondent failed to engage in an active intellectual process in respect of claims raised by the applicant and thereby failed to undertake its statutory task of review as required by s 414 of the Migration Act 1958 (Cth).Claims for protection

Decision

Reasons for decision

The delegate’s decision of 3 September 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant was a follower of Rampal and was present when Rampal was arrested, at which time the applicant was hit on the head with a stick by police. The delegate also accepted that the applicant has a subjective fear of returning to India. However, the delegate did not accept that the applicant is a devout follower of Rampal and that he had or has any significant profile relating to being a follower of Rampal or that he has received any specific threats. With reference to country information, the delegate also found that there are housing and employment opportunities, and no barriers to the applicant relocating based on the applicant’s faith. Therefore, the delegate found that the applicant could relocate to Delhi. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. For the same reasons 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 that the applicant will suffer significant harm as defined in s 36(2A) of the Act. Remit of first constituted Tribunal’s decision As outlined above at paragraph 4 of this Decision Record, the first constituted Tribunal affirmed the delegate’s decision, and that decision was later set aside by consent, by the Federal Circuit and Family Court of Australia (Division 2) at Brisbane on [date November] 2022. Notification of Reconsideration of Application for Review On 9 November 2022, the Tribunal notified the applicant through his nominated representative and authorised recipient, MIC Lawyers, that the Federal Circuit and Family Court of Australia (Division 2) had remitted his application for review to the Tribunal and that there would be a reconsideration of his application for review. The applicant was further notified, in this regard, that his case would be re-allocated to a member who may; seek further information; seek your comments or a response to particular information; invite him to attend a hearing; and make a decision. This correspondence also provided in part that:It is important that you tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you may not receive an invitation to a hearing or other important information and your case may be decided without further notice. Further, on 9 November 2022, the Tribunal telephoned the applicant on his mobile number of [deleted], and with the assistance of a Hindi interpreter asked the applicant to confirm his postal, email and contact number details together with the details of his nominated representative and authorised recipient. The applicant in this conversation confirmed his details as being those held by the Tribunal, including his mobile number of [deleted] and that his nominated representative and authorised recipient was Mr. Chaudhry of MIC Lawyers.

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 (the 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 EVIDENCEIssues The issues in this review are 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 they 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.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents that have been considered by the Tribunal:·The applicant’s protection visa application submitted on 13 April 2018, the annexed ‘My Claims for Protection’ document in which he outlined his claims for protection, and the annexed copy of the applicant’s bio data page of his Indian passport. In the applicant’s ‘My Claims for Protection’ document he, in part and at paragraphs 8 to 14 and 17, stated that:I am a born Hindu.I started following Jagat Guru Ram Pal Jee MAHARAJ, as I was in the impression that I was on the right path with him.But fundamentals in India did not like me following him and started threatening me. They told me stop following Jagat Guru Ram Pal Jee MAHARAJ otherwise I will be killed.With my leader in the prison, the followers have been harassed and tortured frequently and my life will be in danger if I had stayed in India. Therefore, I decided to leave India to avoid this situation. Since I got an Australian Tourist Visa I thought that it was more practical for me to leave India and stay in this peaceful country, Australia without any fear whatsoever.I will provide detailed account later on.There is no safety in India as anarchy and restless is on the rise and India as a State does not have enough resources to cope with all these problems. They get so many complaints like this and do not take them seriously…I strongly believe that my life would be at risk once and if I am go back to India.·Copies of media reports forwarded to the Department by the applicant on 2 September 2019, titled: ‘Haryana: Self-Styled Godman Rampal found guilty in two murder cases’ (Times of India report of 11 October 2018); ‘Hisar on edge as verdict in 2 murder cases against Rampal on Thursday’ (TNN report of 11 October 2018); and, ‘India guru Rampal sentenced to life in jail form murder’ (BBC report of 16 October 2018);·The applicant’s application for review lodged on 17 September 2019 and the annexed delegates decision record of 3 September 2019; ·The administrative and movement records of the Department relating to the applicant; and·An Order of the Federal Circuit and Family Court of Australia (Division 2) at Brisbane on [date November] 2022 in the matter of [deleted], in which, by consent, the court noted that:The first respondent concedes that the decision of the second respondent is affected by jurisdictional error on the basis that the second respondent failed to engage in an active intellectual process in respect of claims raised by the applicant and thereby failed to undertake its statutory task of review as required by s 414 of the Migration Act 1958 (Cth).Claims for protection