2317560 (Refugee)

[2024] AATA 861

2317560 (Refugee) [2024] AATA 861 (19 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Thuy Vu

CASE NUMBER:  2317560

COUNTRY OF REFERENCE:                   India

MEMBER:Paul Noonan

DATE:19 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 19 January 2024 at 2.24pm

CATCHWORDS

REFUGEE – protection visa – India – older single man with chronic physical and mental health conditions and criminal history – long residence, no contact with immediate family and no other surviving relatives – return resident visa cancelled, imprisonment and immigration detention – medical history and current conditions and treatment – country information – health system – insufficient number of mental health workers – general societal discrimination – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (3), (4), (5), 5L, 5LA, 36(2)(a), (2A), (3), 65

Migration Regulations 1994 (Cth), 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 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 30 October 2023 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 5 June 2023. The delegate refused to grant the visa on the basis that there is not a real chance of persecution for reason of the applicant being a member of the particular social group ‘older Indian citizens with chronic health conditions’ nor that, as a necessary and foreseeable consequence of being removed to India, there is a real risk the applicant will suffer significant harm for any of these reasons or because of his circumstances.

3. The applicant appeared before the Tribunal on 15 January 2024 to give evidence and present arguments. The applicant has most recently been in immigration detention since 22 February 2023. The Tribunal notes that medical information before the Tribunal reflects that the applicant has suffered some mental health illness in the past. At the commencement of the hearing the applicant confirmed to the Tribunal that he was ready and able to participate in the hearing process. The Tribunal was satisfied that, at all times during the hearing, that the applicant was able to answer the questions asked of him to the best of his ability and that he was not unduly impaired from doing so by the state of his mental health. The applicant was also represented in relation to the review and the representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

8. 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

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant is owed protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of nationality

11. The applicant travelled to Australia on an apparently genuine Indian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of India and he has been assessed on that basis by the Department. The Tribunal finds that he is an Indian citizen and has assessed his claims against India as his country of nationality and the receiving country.

    The applicant’s personal background

12. The applicant was granted an AT-126 visa offshore on 15 November 1996 and arrived in Australia [in] December 1996. The applicant has spent nearly all his time since then living in Australia but had his Resident Return Visa BB-155 cancelled under s 501 on 6 June 2019. He was imprisoned in March 2019 and released [in] December 2019 and placed in immigration detention. He was briefly released from detention on 30 December 2022 following a Federal Court ruling that found cancellations based on aggregate sentences were invalid. However, he was again detained on 22 February 2023 after the applicant’s visa cancellation was found to be valid.

13. The applicant informed the Tribunal he was born in Bombay but lived most of his life in Delhi. He was employed in Delhi in sales for [a Workplace]. He worked in that job for 10 years prior to coming to Australia. He came to Australia for better opportunities. He has two children in Australia and was married here but now has no contact with his immediate family. In Australia he worked in [Workplaces] and in [Work sector]. He has not worked since 2008 due to poor health. He is currently [Age] years old. He has no surviving family residing in India.

14. With respect to his health the applicant submitted that he started experiencing panic attacks in India. He saw a doctor and a cardiologist and was prescribed some medicine that was meant to help him but in hindsight he believes this was ineffective.

15. The applicant submitted that he now suffers from high blood pressure, high cholesterol, osteoarthritis, diabetes, post-traumatic stress disorder (PTSD), panic attacks, depression and alcohol abuse. He characterised his situation as a daily struggle to survive.

    Considerations

16. In his protection visa application, the applicant stated that he originally left India to pursue a better life and opportunities. He stated that he had experienced harm in the past in India which he described as complex-PTSD, from traumatic events involving family in India. He had sought help from health professionals in India, however, they said he had depression and he found them to be not helpful. He fears returning to India because he fears his mental health will deteriorate and his other medical conditions will also worsen because no appropriate treatment will be available. He has no family or friends in India and he has no money. He does not believe there is adequate government support in India and he will be without accommodation, welfare and medical support.

17. The Tribunal had before it a substantial written submission from the applicant’s legal representation including extensive country information submissions, the applicant’s own written submissions and extensive medical records with respect to the applicant and letters of support with respect to the applicant from support persons.

18. The applicant informed the Tribunal that his traumatic experiences in India relating to his family involved the past deaths of close relatives and the cultural requirement that he set alight the fire for their cremations. He had sought and received private treatment for ensuing anxiety and depression, however, he believed the medicines prescribed were inadequate.

19. Since being in Australia the applicant stated that his mental health had slowly deteriorated, and he had lost contact with his Australian family as a result. He had suffered from alcoholism and panic attacks which had led to him being charged and convicted with making vexatious emergency service phone calls. The Tribunal notes that the applicant has an extensive criminal record which includes vexatious emergency service calls amongst other convictions. He also has a past history of receiving mental health and drug and alcohol counselling sessions.

20. Current medical advice records that the applicant’s medical problems are: diabetes mellitus – type 2, dyslipidaemia, osteoarthritis and bursitis manifesting as poor mobility with a risk of falling, anxiety, depression, alcohol dependence, personality disorder (antisocial, borderline type) and complex PTSD. He has suffered from hypertension, financial hardship and homelessness as a result of his conditions and requires multiple medications to manage his medical issues.

21. As discussed with the applicant if a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b) and (c). For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

22. The applicant submitted that he fears persecution involving serious harm for reason of his membership of the particular social group ‘older single men with no family with chronic physical and mental health issues and a criminal background’.

23. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.

24. The Tribunal accepts that the applicant fears harm for reason of his membership of the particular social group ‘older single men with no family with chronic physical and mental health issues and a criminal background’ with reference to the criteria set out in the preceding paragraph.

25. The Tribunal discussed with the applicant that DFAT assesses that the quality and availability of health services in India varies significantly but that, in general there is an inadequate supply of health care professionals. Public health care is generally considered to be of a poor standard and, if they can afford it people prefer to seek treatment in the private system. DFAT assesses that eligibility for health care subsidies and other services is complex and depends on the person, their illness and their circumstances and that access to such schemes should not be assumed.[1]

    [1] DFAT Country Information Report, India, 29 September 2023, p. 11

26. DFAT also assesses that the number of mental health workers in India is insufficient to meet demand. Mental health care is more likely to be accessible in large cities. Mental health literacy is low in India and persons suffering mental health illnesses can suffer being ostracised at work or school. DFAT assesses that people living with mental illness face a low risk of official discrimination, except to the extent that they may not be able to access appropriate health care, which is true for many Indians with various medical issues. Indians living with mental illness face a moderate risk of societal discrimination.[2]

    [2] Ibid, p. 12

27. The Tribunal is satisfied that the applicant, should he be required to return to India after spending the past 27 years in Australia, would be doing so with no family support, no social support and underlying significant mental health and physical health issues. In addition, the applicant has an extensive criminal history reflective of significant and ongoing anti-social behaviour which the Tribunal is satisfied is linked to his state of mental health.

28. Upon discussion with the Tribunal the applicant did not identify anyone or any group that may be motivated to harm him with respect to his physical health and his concerns were presented in the context of the generally poor state of the health system. The Tribunal notes that the applicant’s concerns about the poor capacity of those services in comparison to that which would be available to him in Australia, is not a relevant consideration in this matter. What is in consideration is whether the applicant would be denied access to available health care for a refugee reason.  

29. The Tribunal is satisfied, given the above DFAT assessment with respect to access not being assumed, that the applicant’s cumulative profile is such that there is a real chance the applicant will be intentionally denied access to health care subsidies and other services that may otherwise be available to him in India for reason of his membership of the particular social group. The Tribunal is satisfied that such a denial of access to health services would result in serious harm to the applicant as a denial of access to a basic service, in the form of otherwise available health care, would threaten the applicant’s capacity to subsist.

30. The Tribunal also accepts that there is a risk the applicant will be subject to general societal discrimination due to his poor mental health and considers that such discrimination would rise to the level of serious harm such as employment discrimination resulting in a denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist.

31. The Tribunal is satisfied that the types of persecution set out above involve systematic and discriminatory conduct and relate to all areas of India.

32. The Tribunal must consider whether protection against persecution could be provided to the applicant as per s 5LA(1). The nature of the persecution set out above is discriminatory and of a non-criminal nature. As such the Tribunal considers the protection criteria set out under s 5LA(2) are not relevant for the purposes of establishing if the state is able to offer protection and the Tribunal finds that the applicant cannot access protection for the purposes of s 5LA(2)(a), as it is not protection against the persecution he fears. Overall the Tribunal considers that the evidence reflects that the state is powerless to prevent the private persecution feared by the applicant and is not able to offer such protection and as such the exemption set out under s 5LA(1) is not met. 

33. The Tribunal must also consider the exemption at s 5J(3) which provides that a person will not have a well-founded-fear of persecution if they could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution. The Tribunal notes that the fear of persecution is because of the applicant’s membership of the particular social group ‘older single men with no family with chronic physical and mental health issues and a criminal background’. The Tribunal considers that the attributes attributable to a person in this group are innate or immutable characteristics of the person and as such the exemption at s 5J(3)(b) applies.

34. Finally, there is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside, whether temporarily or permanently, in any country apart from Australia and as such the exception with respect to third country protection contained at s 36(3) does not apply.

    Conclusion

35. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

36. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

    Paul Noonan
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …