2309769 (Refugee)

Case [2024] AATA 3047

2309769 (Refugee) [2024] AATA 3047 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2309769

COUNTRY OF REFERENCE:                   India

MEMBER:Simone Burford

DATE:29 April 2024

PLACE OF DECISION:  Perth

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

Statement made on 29 April 2024 at 3:45pm

CATCHWORDS
REFUGEE – protection visa – India – ethnicity and membership of particular social group – marriage to woman from higher caste – threatened by well-connected in-laws, harassed by local authorities, arrested and beaten by police and disinherited by father – new claims of political opinion, religion and membership of particular social group – Sikh and supporter of Khalistan separatist movement – bisexual and same-sex activities at school and in Australia – physical and mental health and attempts at self-harm – inconsistent and implausible evidence – claims not raised in earlier proceedings – criminal conviction and imprisonment, student visa cancelled and immigration detention – no evidence of political opinion, activities or profile – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 65, 36(2)(a), (aa), (2A), 423A, 424A, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v Commonwealth (1999) 197 CLR 510
AUB16 v MIBP [2017] FCCA 2634
BEH15 v MIBP [2019] FCAFC 184
Chand v MIEA [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v MIBP [2018] FCFCA 2
GLD18 v MHA [2020] FCAFC 2
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547

MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1999) 93 FCR 220

MZAEN v MIBP [2016] FCCA 620
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347

SZBEL v MIMIA (2006) 228 CLR 152
SZRSN v MIAC  [2013] FMCA 78; [2013] FCA 751
WAKK v MIMIA [2005] FCAFC 225

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

    Background

  2. The applicant is a [Age] -year-old citizen of India. 

  3. He arrived in Australia as a dependant on his wife’s [Specified] visa [in] September 2015.  He applied for the protection visa on 16 June 2023.

  4. He was not represented when…

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Details
AGLC
2309769 (Refugee) [2024] AATA 3047
Case
[2024] AATA 3047
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse to grant the applicant, an Indian citizen, a protection visa. The applicant arrived in Australia in 2015 and applied for the visa in June 2023. The delegate refused the application due to a lack of detail and substantiating evidence in the applicant's claims, finding them not credible. The applicant was unrepresented before the delegate and the Tribunal.

The legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), or alternatively, the complementary protection criterion under section 36(2)(aa). This involved assessing the applicant's claims of threats from his in-laws due to an inter-caste marriage, harassment by local authorities, arrest and torture by police, and disinheritance by his father. The court also considered new claims raised before the Tribunal concerning political opinion as a Sikh supporter of the Khalistan separatist movement, and membership of a particular social group based on his bisexuality and same-sex activities in India and Australia.

The court found the applicant's evidence to be inconsistent and implausible, particularly regarding the timing of his knowledge of his mother's death and the details of his alleged persecution. The court noted that the claims of political opinion, religion, and bisexuality were not raised in the initial application or with the delegate, and were not substantiated with credible evidence. The court applied Ministerial Direction No. 84 and considered relevant country information, ultimately finding that the applicant had not established a real risk of significant harm if returned to India.

The court affirmed the delegate's decision to refuse the protection visa.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background The applicant is a [Age] -year-old citizen of India. He arrived in Australia as a dependant on his wife’s [Specified] visa [in] September 2015. He applied for the protection visa on 16 June 2023. He was not represented when the application was before the delegate or the Tribunal.Protection claimsProtection visa application The applicant outlined his original claims for protection in the protection visa application lodged on 16 June 2023. On 21 June 2023 the applicant was invited by the Department to provide additional information in support of his application for protection. The delegate’s decision indicates the invitation advised the applicant that their statement of claims lacked substantiating details such as dates and locations, and supporting documentation, in regards to their claims, and that no further evidence to support their claims had been provided. This correspondence also advised the applicant that, in order to be satisfied that their claims for protection were genuine, they were invited to provide more information about what happened to them in India, including dates, and locations of events. The delegate’s decision indicates no further information was provided. The applicant was not interviewed by the Department with respect to his protection visa application. The applicant’s initial claims as contained in his application for protection were summarised in the delegate’s decision as follows:·The applicant left his country because his life was threatened by his in-laws;·The applicant received threats from his in-laws because he married their daughter while being from a lower caste (inter-caste marriage);·The applicant approached the local authorities for assistance; however, they did not help him, and instead they harassed and pressured him to divorce his wife;·The applicant escaped to New Delhi to seek safety but the Indian police arrested, beat and tortured him. The applicant’s friend bribed the police to secure his release while the applicant’s wife sought refuge at her friend’s house;·If he returns to India, he will be killed by his wife’s family and community;·The applicant’s in-laws are well-connected and could inflict harm on the applicant. Other than his identity documents, the applicant did not submit any documents to the Department in support of his application for the protection visa.Delegate’s decision The delegate refused the application for the visa on 3 July 2023. A copy of the delegate’s decision was provided by the applicant with his application for review. Due to the lack of detail in his application or supporting evidence for his claims, and his failure to address the lack of detail or supporting evidence through failing to provide further information and comment, the delegate was not satisfied that the applicant’s claims were genuine. In light of these concerns, the delegate found that the applicant’s claims were not credible.

Evidence

Evidence Before The Court

The Tribunal finds that the applicant is a citizen of India, which is also his receiving country for the purposes of the refugee and complementary protection assessments.Evidence According to the information provided by the applicant in his application for protection, he was born in [Village 1], Punjab, India. He is married and has one child born in [Year]. He has been separated from his wife since 6 June 2019. He told the Tribunal he has not had contact with them since that time. He is ethnically Sikh and a follower of the Sikh faith. He indicated that he speaks, reads and writes Punjabi and reads and writes English. He said he went to school in [Village 1] but left at the end of [grade]. He has a father and brother in [Village 1], India. He has not had contact with them for 7 or 8 years (since around 2015). At that point he was in contact with his mother who has since passed away in 2020. He confirmed he had not spoken to his family since he was last in contact with his mother in 2015. He said his father owned a farm and was a farmer. His brother was married and did not work. He indicated he was not in contact with relatives outside Australia. He listed 2 addresses in NSW where he lived prior to entering detention in June 2020. The Tribunal asked how his mother had died and he said ‘this incident’ happened, his in-laws made trouble and his mother died of a heart attack. He said they also persecuted his brother and broke his legs. The Tribunal asked how he had learned of his mother’s death and he said he had been told by a friend, [Mr G]. He also sent the applicant 2 videos of his brother’s legs being broken and told him about his in-laws. He said [Mr G] had texted him on his birthday [in] 2022 and he had called him back. The Tribunal clarified if that was when he had been told about his mother as well and he said he was giving him sympathy but at that time he was not aware of that. He confirmed this was in [2022]. He confirmed that he did not know about his mother before that time. The Tribunal notes that at a subsequent hearing he told the Tribunal he was told on his birthday in 2020. The Tribunal asked why he left school at the end of [grade] and he said that there were some problems. When the Tribunal asked what the problems were, he said he mentioned them in his submissions. In his submissions the applicant had stated:· Applicant is a bisexual individual. He has been like this since birth but first realised it when he was [age] years old and was in [grade]. He hasn’t mentioned his identity earlier to any of the government bodies fearing the discrimination and bullying like he faced in his country of origin. The applicant first realised about his sexual orientation at around when he was in [grade] and he felt like he had less interest in girls and is also never attracted to them in that way to which he was attracted to boys rather.· The applicant was always bullied in school by the boys as his behaviour was feminine and was forced to sit with girls where he was ignored by the girls as he was a boy.· There were 4 boys in the school who had the same sexual orientation as him and he was attracted to them and they were comfortable with him and accepted him. It was the first time in [grade] when he was taught by these boys to have sex with them and educated him on his gender. The applicant was comfortable around them and was performing sex with those boys.· It was not until later when his family was warned by his teachers or his schoolmates about his sexual orientation and the way he was. The family of the applicant spoke to him and he confessed that he believed he was bisexual and had a relationship with boys at that time. The family was really upset and the applicant was beaten by the family in rage as he was seen as a blot to the family but he was warned and given a chance to mend his ways and to have no contact with those boys.· The applicant was kept in house arrest for like 4 months and he was not allowed to leave the house and he was kept under vigilance, and was tortured from time to time.· After 4 months the applicant was allowed to leave the house and was followed when he went to meet his male friends to whom he was attracted. They were caught and all were beaten by his family and villagers and also informed the other guy’s family about their actions. The applicant was beaten again by the family and handed over to police to just teach him a lesson and was locked up for 2 days where he was tortured and illtreated by the cops and bullied for 2 days about his ways and actions. His family paid money to the police station to teach him a lesson as well.

Decision

Reasons for decision

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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. At the hearings, country information, including the latest DFAT Country Information Report: India dated 29 September 2023 (the 2023 DFAT Report) was discussed where relevant. The relevant country information is discussed further below.CONSIDERATION OF CLAIMS AND EVIDENCEApplicant identity and country of reference The applicant claims to be a citizen of India. The applicant provided a copy of his Indian passport to the Department. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection. The Tribunal finds that the applicant is a citizen of India, which is also his receiving country for the purposes of the refugee and complementary protection assessments.Evidence According to the information provided by the applicant in his application for protection, he was born in [Village 1], Punjab, India. He is married and has one child born in [Year]. He has been separated from his wife since 6 June 2019. He told the Tribunal he has not had contact with them since that time. He is ethnically Sikh and a follower of the Sikh faith. He indicated that he speaks, reads and writes Punjabi and reads and writes English. He said he went to school in [Village 1] but left at the end of [grade]. He has a father and brother in [Village 1], India. He has not had contact with them for 7 or 8 years (since around 2015). At that point he was in contact with his mother who has since passed away in 2020. He confirmed he had not spoken to his family since he was last in contact with his mother in 2015. He said his father owned a farm and was a farmer. His brother was married and did not work. He indicated he was not in contact with relatives outside Australia. He listed 2 addresses in NSW where he lived prior to entering detention in June 2020.