2311059 (Refugee)

Case [2023] AATA 4564

2311059 (Refugee) [2023] AATA 4564 (10 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2311059

COUNTRY OF REFERENCE:                   India

MEMBER:Simone Burford

DATE:10 November 2023

PLACE OF DECISION:  Perth

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

Statement made on 10 November 2023 at 2:26pm

CATCHWORDS

REFUGEE – protection visa – India – political opinion – attack by Akali Dal activist – physical violence – fear of killing – death of the applicant’s wife – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 66, 424AA, 499
Migration Regulations 1994, Schedule 2; r 4.31

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v Minister for Immigration and Border Protection [2018] FCFCA 2
DFQ17 v MIBP [2019] FCAFC 64
Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 29 June 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 [an age]-year-old Indian citizen. According to his application for protection he was born in [his home town in] Haryana, India.  He identified himself as Sikh and ethnically Punjabi.  He claimed he had been married but his wife is now deceased.

  3. Prior to coming to Australia, he was living in [a location in] [Town 1], Chandigarh in the state of Punjab. His parents remain living in India.  He has a sister living in Australia and who he indicated is an Australian citizen.

  4. He completed a [qualification] at [University 1] in Chandigarh in [specified year].

  5. The…

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AGLC
2311059 (Refugee) [2023] AATA 4564
Case
[2023] AATA 4564
Decision Date

CaseChat Overview and Summary

This matter concerns an application for review of a decision by a delegate of the Minister for Home Affairs to refuse the applicant, an Indian citizen, a protection visa. The applicant claimed he feared persecution in India due to his involvement with a university group and alleged knowledge of secrets concerning a politically influential individual, identified as an Akali Dal activist. He also asserted that Indian authorities would be unable to assist him.

The legal issues before the Tribunal were whether there was a real chance the applicant would be persecuted in India for one of the five prescribed reasons under section 5J(1)(a) of the Migration Act 1958 (Cth), or alternatively, whether there were substantial grounds to believe that, as a necessary and foreseeable consequence of his removal to India, he would suffer significant harm under section 36(2)(aa) of the Act.

The Tribunal considered the applicant's claims in light of Ministerial Direction No. 84 and relevant country information from the Department of Foreign Affairs and Trade. While acknowledging the applicant's identity as an Indian citizen, the Tribunal found that the evidence provided did not substantiate his claims of a real chance of persecution or significant harm. The Tribunal noted that the applicant had been invited to provide further substantiating details and documentation regarding his claims, including specific dates and locations of events, and had provided a submission in response. However, the Tribunal concluded that the applicant did not satisfy the criteria for a protection visa under section 36(2) of the Act.

The Tribunal affirmed the delegate's decision to refuse the grant of a protection visa.

Orders

Orders of the court

Full text does not contain this section.

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 29 June 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 [an age]-year-old Indian citizen. According to his application for protection he was born in [his home town in] Haryana, India. He identified himself as Sikh and ethnically Punjabi. He claimed he had been married but his wife is now deceased. Prior to coming to Australia, he was living in [a location in] [Town 1], Chandigarh in the state of Punjab. His parents remain living in India. He has a sister living in Australia and who he indicated is an Australian citizen. He completed a [qualification] at [University 1] in Chandigarh in [specified year]. The applicant first arrived in Australia with his wife [in] May 2019 on a visitor visa. He applied for the protection visa on 17 June 2023. Jurisdiction issue The applicant was notified of the decision to refuse his visa by email on 29 June 2023. He lodged the application for review on 26 July 2023. The notification letter indicated that the applicant had 28 days in which to lodge an application for review with the Tribunal. However, as the notification letter makes clear, at the time the notification was made the applicant was in Immigration detention at [a location]. The obligation in s 66(2)(d)(ii) to state the time in which the review application may be made requires that it be conveyed in a complete and clear manner. A notification that lacks clarity in stating the time within which a review application must be lodged will not be a valid notification under the Act and the prescribed period for applying for review will not have started to run.[1][1] DFQ17 v MIBP [2019] FCAFC 64. In relation to notification of a Part-7 reviewable decision where the applicant is in Immigration detention on the day of notification, to be a valid notification it must clearly convey that the prescribed period of 7 working days commences on the day the applicant is notified of the decision or, if that day is not a working day, that it commences on the first working day after the day the applicant is notified.[2] [2] Migration Regulations 1994 (Cth), reg 4.31. As the applicant was in Immigration detention at the time the notice was given, the time for seeking review was 7 days. As the notice incorrectly advised the review period was 28 days the notice was defective. A failure to properly notify an applicant does not affect the validity of the primary decision,[3] however, the time periods for review do not commence until a decision has been properly notified. Accordingly, the time for review has not yet commenced to run and the Tribunal considers it has jurisdiction to conduct the review.[3] Section 66(4).Issues The issues in this review are whether there is a real chance that, if he returns to India, the applicant will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to refuse the applicant a visa should be affirmed.CLAIMS AND EVIDENCEProtection claimsProtection visa application The applicant filed his application for a protection visa on 17 June 2023. The applicant initially presented his claims in his protection visa application, in which he claimed, in summary:·He left his country because he was threatened and harmed by a politically influential individual called [Mr A];·He did not seek any assistance in India because [Mr A] was a strong politician, who has connections with the government of Punjab as well as the Central government;·He moved to other parts of his country and went into hiding for several years; however, [Mr A] has connections throughout India and would be able to find the applicant;·If he returns to India, he will be persecuted by [Mr A], who is [a leader] of a political party called ‘Akal Dal Punjab’;·As a member of a university group called ‘[Group 1]’, he knew many secrets about [Mr A];·He cannot seek assistance from the Indian authorities because they themselves want to harm him. The applicant submitted a copy of his Indian passport issued [in] 2019. According to the delegate’s decision, the applicant was invited to provide additional information relating his claims by letter dated 21 June 2023. The invitation advised the applicant that his statement of claims lacked substantiating details such as dates and locations, and supporting documentation regarding his claims and advised the applicant that, in order for the delegate to be satisfied that his claims for protection were genuine, he was invited to provide more information about what happened to him in India, including dates, and locations of events. The correspondence also advised the applicant that, if he could not provide copies of documents or details of his claims as invited, he should provide a detailed explanation of why he could not do so, and of the efforts he made to obtain these documents. This correspondence also informed the applicant that if he did not respond to the invitation within the specified timeframe, the Department could decide the application with the information it had at that time without asking his for further information again. The correspondence advised the applicant that if he could not respond to the invitation within the specified timeframe, he should contact the Department requesting more time to provide the information. In response to the invitation to provide further information the applicant provided a submission to the Department indicating that:·He did not apply for a protection visa earlier because he was hopeful of receiving permanent residency through his wife, who was studying in Australia to become [an occupation 1]; however, his wife passed away, leaving him and their only son. Subsequently, the applicant suffered from depression and stress. Later he moved to Sydney and stayed with one of his cousins;·The student group that he joined in India was registered by [Leader Alias B] (AKA [Leader B]) and his brother [Leader C] (AKA [Leader Alias C]). In addition to this submission, the following documents and YouTube links were provided in support of the applicant’s claims for protection:§A screenshot showing the applicant allegedly with [Leader Alias B];§A link to a video on YouTube about the [life] of a ‘gangster’ by the name of [Leader B] in Punjab;§Two links to news articles concerning [Mr A name variant].

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 any of 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. As noted earlier, the Tribunal discussed with the applicant at the hearing the 2019 DFAT Report, which was then the current DFAT country information report relating to India, in considering the claims raised in the application. The Tribunal has also considered the most recent DFAT report − the 2023 DFAT Report. The Tribunal considers that the information contained in the most recent report was materially the same as the country information put to the applicant at the hearings as it related to his claims and as such that it raised no new issues with respect to the application for review. The Tribunal has included references to both the 2019 DFAT Report and the 2023 DFAT Report where relevant. The Tribunal was satisfied that the issues arising from the 2023 DFAT Report had been raised with the applicant at the hearing. Accordingly, the Tribunal determined that a further hearing was not required as no new dispositive issues were raised by the 2023 DFAT Report.CONSIDERATION OF CLAIMS AND EVIDENCEApplicant identity and country of reference The applicant claims to be a citizen of India. As noted earlier, the applicant provided a copy of his Indian passport to the Department. The delegate accepted the applicant’s identity. The applicant told the Tribunal he lost his passport when he moved from Melbourne to Sydney around 2 months prior to entering detention in January 2022. However, 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 Prior to coming to Australia, the applicant was living in [Town 1 in] Chandigarh, Punjab. Chandigarh is the capital of the Northern Indian states of Punjab and Haryana. He said prior to leaving he was living at two addresses, one in Chandigarh and one in [Town 2], Haryana – about [distance] away. He was living at two addresses because of the ‘political issue’. His mother and his son were living in Chandigarh. His son is [age] years old and attending school in Chandigarh. He has been attending school in Chandigarh since before the applicant came to Australia. He claimed his father and his wife are recently deceased. He has a sister living in Melbourne. She came to Australia after she married, around 8-9 years ago. He also has a cousin in Sydney who is married. His cousin’s wife is a permanent resident.