1300325 (Refugee)

1300325 (Refugee) [2015] AATA 3147 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1300325
COUNTRY OF REFERENCE:                  India
MEMBER:Bruce Henry
DATE:7 July 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 07 July 2015 at 2:01pm

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection (Class XA) visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied to the Department of Immigration for the visas [in] May 2012 and the delegate refused to grant the visas [in] December 2012.
The applicants appeared before the Tribunal on 5 February 2014 to give evidence and present arguments. The Tribunal also heard evidence from [Mr A], who said that he was a friend of the first named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were represented in relation to the review by their registered migration agent.

RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

Refugee criterion

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 under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Member of the same family unit

Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include children under the age of 18 years.

CLAIMS AND EVIDENCE

The first named applicant, [Applicant 1], claims that he fears harm from his family, his community and the community and family of his wife, the second named applicant [Applicant 2] due to their marriage as he is a Sikh and she is a high caste (Brahmin) Hindu. For the reasons that follow, the Tribunal has decided to affirm the decision.
[Applicant 1] and [Applicant 2] were both born in Amritsar in the Punjab, India, in [year] and [year] respectively. Documents on the departmental file state that they married in Amritsar [in] July 2004. Information provided in the forms lodged with their application and on their marriage certificate, states they lived together at [Applicant 1]’s family’s address from the date of their marriage until they departed for Australia in July 2009 as the holders of student visas.
The claims set out in [Applicant 1]’s application were as follows:
I left India because I was scared for my life. After my partner and I were married, my partner’s family threatened me every day. My wife and I were not able to live a peaceful life in my home town and constantly had to escape to be safe. I left the country so that I could finally be safe with my wife and child without being threatened. …
My partner’s family threatened to kill me and my family many times because of my religion and because we were married. Every time that I turned around I fear that one of my partner’s family would harm me. Because of this fear I was very depressed and saw a doctor about my condition. Over the years my condition got worse and worse. I tried to convince myself and my partner’s family that we got married because of our love each other and that religion did not matter to us. However her family was not willing to accept our marriage and said that they would “murder us before they accepted me”. I am still to this day very anxious and always that someone will one day and try and hurt me and my family …
I fear that my partner’s family will do harm to me and my family including my newborn child who has not been exposed to their behaviour. I fear that I will be murdered and that I will live through hell for the rest of my life. I also fear that if I return to India at my depression will return because the way I was living in was not normal and I constantly had to look over my shoulder. I also feel for my children as I know my partner’s family will try to put fear in them. When I was in India I was not able to put my [child] through education as I knew my partner’s family would try and step in. Now with the birth of my [second child] I fear that they might do great damage to [my second child] particularly because [he/she] should be following in my footsteps. …
There are a number of people that might harm which include all of my wife’s family. The person that will do most damage is my partner’s brother who has threatened me every day whilst I was in India, and still threatens my family in India and [Country 1]. …
The reason this will happen is because it occurred every day whilst I was in India and the situation has not changed as my wife and I are still married. My wife and I intend to stay together forever and I believe because of this my wife’s family will continue to threaten us. Based on a religious differences which are not going to change as this will cause even greater hardship on us both, my partner’s family will not stop to threaten me and my family.
In answer to the question “do you think the authorities of that country can and will protect you if you go back?” [Applicant 1] stated:
The Indian legal system is quite corrupt and families that have money can pay the government forces to decide the case in their favour. Marriage laws are contained in different acts; for example people of the Hindu religion look to the Hindu Marriage Act 1955, Christians look to the Indian Christian Marriage Act 1872 and seek religious group refers to the Anand Marriage Act 1909. People of mixed religions must rely on the Special Marriage Act 1954 which limits inheritance, alimony payments, and property ownership of persons from interfaith marriages, and almost the way each religion sees the other.
Further, the protection in India by police is not safe. One example, of many, is where a man had been killed by his in-laws. Though the Punjab court ordered protection for him the victim was murdered, and though the family later was charged the man is no longer on this Earth and I do not want this as I have a wife and children whom I dearly love. … This behaviour happens very regularly and people (especially angry families) are not afraid to make clear their feelings and hatred towards each other knowing that the government will be on their side. Short example can be found in the article mentioned above with a police officer said “the boy’s behaviour was not correct” as if to say that the in-laws’ behaviour can be justified.
Extensive research has also been undertaken on complaints made by parents of the bride. Whether husband cannot prove age the charges abduction and rape of a minor. Though the courts usually find in favour of the woman, couples are forced to go back to their hostile community and police force, “that instead of protecting them will continue to harass them”. Whilst the higher level courts to protect victims, the local judicial system in India continues to lag behind, which makes it very difficult for the higher power to look after every person who has been married in an inter-religion marriage. Please finding close the extensive research conducted into the Indian judicial system and protection of people married of different religions.
[Applicant 2] also made her own claims in her application, which were also based on the claim that she fears persecution because she is a Hindu and her husband is a Sikh. She claimed that her family, particularly her parents and brother, ‘have threatened me and my husband and our children’ because of their interfaith marriage.
A copy of the Decision Record for the decision under review was provided to the Tribunal with the application for review. The claims made in their application were summarised in that document as follows:
Summary of Applicant 1, [Applicant 1]'s claims is as follows:
• The applicant is a Sikh man married to a Hindu woman. The wife's family were against the marriage and had threatened to kill him and his family. He said that his brother-in-law threatens him every day while he was in India and still threatens his family in India and [Country 1].
• He could not live peacefully in his home town and had to escape constantly to be safe.
• Because of this fear he became depressed and had to see a doctor about it in India.
• He fears that if he returns to India, his family will be subjected to harm from his wife's family. When he was in India he was unable to "put my [child] through education".
• The Indian legal system is corrupted and the protection in India by police is not safe.
• He left India so he and his family could be safe without being threatened.
Summary of Applicant 2, [Applicant 2] claims is as follows:
• The applicant is a Hindu woman married to a Sikh man. Her family is against her marriage to her husband and has threatened them. She claims that she had depression due to this.
• She had experienced mental and verbal abuse from her family. Her family had threatened to kill them if she does not divorce her husband.
• She fears that her parents and brother will kill them if they returned to India.
• If they return to India her children will not be happy as they are in Australia.
• She does not believe that the authorities can help them as she "has read and heard about too many stories where the police has stepped in but as soon as they left the family chose to attack their victims".
• She said that they have reported the matter to the police several times but was asked to work it out themselves and to think about getting a divorce and marry into their own religion.
• She fears that the local police will not do anything about their case as they would be on her family's side.
In discussing the interview that she conducted with the applicants the delegate said:
The Applicant 1 met his spouse (Applicant 2) at a [function] in 2002. They knew each other for two years before they got married in 2004. They were married at [location] according to the Hindu Act. After a few days they had a Sikh marriage, his father attended the ceremony but his mother could not as she was sick with [a medical condition]. She has now gone to [Country 1] for [ treatment]. He said `not too many people' attended the ceremony. His spouse's family did not attend the ceremony since they were against their marriage.
At interview, the Applicant 1 indicated that his father migrated to [Country 1] on a Skilled/Employment [visa]. His mother was receiving treatment for her [medical condition] in [Country 1]. His brother migrated to [Country 1] and obtained citizenship there [in] October 2009. His sister and her husband also live in [Country 1]. He stated that their house in India is currently vacant since his family have moved to [Country 1]. During the interview, the Applicant 2 mentioned that Applicant 1's family were also threatened but did not explain further on the matter. I am in the opinion that Applicant l's family moved to [Country 1] for economic and health reasons. Even if I were to accept (which I do not) that they were threatened by Applicant 2's family, there is no evidence to substantiate any of the alleged claimed incidents to have happened.
Both Applicant 1 and Applicant 2 have similar claims and this was confirmed at interview, therefore the decision record will address both their claims. Applicant 1 is a Sikh man and Applicant 2 is his wife a high caste Brahman Hindu woman. The Applicants confirmed that after they were married they lived in Chandigarh with the Applicant 1's family. Both Applicants claim that they fear harm from Applicant 2 (wife)'s parents and brother due to their inter-religious marriage. They also fear for the safety of their [young] children if they were to return to India. Applicant 1 claims that his brother-in-law had threatened to kill him if he returns to India. The information provided by Applicant 1 at interview was vague and unsubstantiated.
Nonetheless, I found several discrepancies and inconsistencies with the Applicant 1 and Applicant 2's verbal and written testimonies. At the interview, Applicant 1 was asked about his written submission which claimed that "my wife and I were not able to live a peaceful life in my hometown and constantly had to escape to be safe"; to which the Applicant 1 said that he lived in "Chandigarh itself and shared a house with a friend for 5 to 6 months". It was noted to the Applicant 1 that earlier in the interview he had confirmed that they lived in his parents' house at [an address in] Amritsar after they were married until they left to Australia. This information was also declared on their Protection visa application Question 35 (f149) and Question 45 (f63) where it was noted that both Applicants lived at the above address after their marriage for 5 years. Based on the Applicants' testimonies, I am not convinced that the Applicants had ever moved anywhere else other than live in the Applicant 1's parents' house for 5 years until they departed to Australia which raises doubts on the authenticity of the claimed occurred incidents. This fact is further supported by the Applicant 2's admission that they moved to her husband's parent's house after their marriage and lived there until they departed to Australia.
It is also noted that Applicant 2 at the interview had stated that they live a few minutes away from her parents' house, "My husband's home is [a few] blocks away from my parents' home and it is easy for them to threaten me or send a message through someone". At interview, the Applicant 2 was asked when she received these threats, to which she said, "after getting married, when I was at home, when I was pregnant". The Applicant 2 was asked why they did not move away from her parents' house if they feared for their safety, to this the Applicant 2 responded "we were living in my husband's [relative]'s place and we moved to different places and left all his friends as he was afraid that his friends or relatives would give information to my family". This information contradicts the Applicant l's testimony, where earlier in the interview he had indicated that he moved to his friend's house for 5 to 6 months; at no stage during the interview had the Applicant 1 mentioned living in his [relative]'s house in India to escape from being harmed. Based on the information provided by the Applicants at interview, I am in the opinion that the Applicant 2 created a non-factual response to the Delegate's question about why they did not move away from her family's house to escape persecution. …

The delegate rejected the claims, stating in the decision record:
I am not satisfied that the Applicant 1 and Applicant 2 have substantiated a claim of well founded fear of persecution in India for a Convention reason for the following reasons:
The Applicant 1 met his spouse (Applicant 2) at a [function] in 2002. They knew each other for two years before they got married in 2004. They were married at [location] according to the Hindu Act. After a few days they had a Sikh marriage, his father attended the ceremony but his mother could not as she was sick with [a medical condition]. She has now gone to [Country 1] for [treatment]. He said ‘not too many people’ attended the ceremony. His spouse's family did not attend the ceremony since they were against their marriage.
At interview, the Applicant 1 indicated that his father migrated to [Country 1] on a Skilled/Employment [visa]. His mother was receiving treatment for her [medical condition] in [Country 1]. His brother migrated to [Country 1] and obtained citizenship there [in] October 2009. His sister and her husband also live in [Country 1]. He stated that their house in India is currently vacant since his family have moved to [Country 1]. During the interview, the Applicant 2 mentioned that Applicant 1's family were also threatened but did not explain further on the matter. I am in the opinion that Applicant l's family moved to [Country 1] for economic and health reasons. Even if I were to accept (which I do not) that they were threatened by Applicant 2's family, there is no evidence to substantiate any of the alleged claimed incidents to have happened.
Both Applicant 1 and Applicant 2 have similar claims and this was confirmed at interview, therefore the decision record will address both their claims. Applicant 1 is a Sikh man and Applicant 2 is his wife a high caste Brahman Hindu woman. The Applicants confirmed that after they were married they lived in Chandigarh with the Applicant 1’s family. Both Applicants claim that they fear harm from Applicant 2 (wife)'s parents and brother due to their inter-religious marriage. They also fear for the safety of their [young] children if they were to return to India. Applicant 1 claims that his brother-in-law had threatened to kill him if he returns to India. The information provided by Applicant 1 at interview was vague and unsubstantiated.
At the interview the Applicant 1 was asked a couple of times on how he was able to live and take care of his family in India for 5 years (since 2004) prior to coming to Australia, to this the Applicant 1 stated that his "brother- in- law's friend physically harmed us. No peaceful life while living in India ". He also indicated that his ‘inlaws’ were angry and when his wife was pregnant "they asked her to abort the child and divorce her husband, but she wanted to live with him ". At interview, the Applicant 1 was asked if the matter was reported to the police, to which he indicated that his father lodged a complaint with the police. The applicant was asked for documentary evidence of this, to which the Applicant 1 indicated that he would ring his father in [Country 1] and get a copy of the report. At the time of this decision, the Applicant 1 had not provided any evidence on this matter.
During the interview, the Applicant 1 was asked if he had lodged any complaint to the police in regards to the threats from his ‘in-laws’ or the alleged attack, to this the applicant stated, "I do not trust the police as they are very corrupt".
During the course of the review the applicants’ representative submitted further material to the Tribunal which included:
·     a police ‘First Information Report’ (FIR) purportedly made by [Applicant 1] claiming that an attack had been made on him by [his] brothers in law in 2005;
·     a letter from a [physician and specialist], stating that he had treated [Applicant 1] for depression at [a] Hospital [in] March 2008; and
·     a signed statement by [Applicant 1]’s [father], made in [Country 1] in January 2014, stating that [Applicant 1] has been subject to threats from his in-laws since marrying [Applicant 2] in 2004, including threats by telephone since they came to Australia.
At the hearing [Applicant 1] told the Tribunal that the application forms for the visa were completed on his instructions. He then said that he had not read the whole form before signing it, as his agent had told him that would take too long, so he just signed it. He said that he had only read the part of the form containing the addresses that he lived at in India. He also confirmed in his evidence at the hearing that he told the departmental officer at his interview [in] August 2012 that he was aware of and understood the claims written in his application and did not wish to change those claims or add any additional claims.
The applicant then said that at the time he lodged his application he was ‘quite depressed and not sure what I was saying’. The Tribunal asked him to explain whether he meant he was depressed at the time of his interview, and he said that he was depressed at when he was lodging the application and there was no one to help him.
The applicant told the Tribunal that when he and his wife fell in love his mother asked his wife’s family for permission for them to marry and they refused. He said that he had to get protection from the Punjab High Court to marry. He said that he hired a lawyer to make the application for them.
The applicant said that on [a stated night in] July 2004 he and [Applicant 2] took a taxi to Chandigarh as they felt that their lives were in danger. He said that they reached the home of the lawyer at about midnight. He knew about this lawyer through a friend. The next day, [in] July 2004, the lawyer helped them marry in a Hindu ceremony and then they went to the High Court in Chandigarh and married there. He said that he and his wife then stayed with the lawyer for a month after the marriage.
The Tribunal pointed out to [Applicant 1] that the marriage certificate he had produced said that they married in Amritsar. He said that this was because he had to go to the Court in Amritsar to obtain a copy of the marriage certificate when he and [Applicant 2] were coming to Australia. The Tribunal notes that the certificate that was produced to the Department is stated to be an ‘Extract from Hindu Marriage Register’ and states that the marriage was registered [in] November 2008, that the date of the marriage was [in] July 2004 and the place of marriage was ‘Amritsar, Punjab, India’.
The Tribunal asked [Applicant 1] why he had said in his interview at the Department that he had made no complaint to the police about a claimed assault upon him by [Applicant 2]’s brothers, given that he had now produced to the Tribunal a document purporting to be a report of that incident. He said that his agent had told him that he would need to provide evidence at the hearing.
[Applicant 1] then told the Tribunal that he had been confused when interviewed at the Department as he did not have an interpreter. The Tribunal pointed out to him that he had not requested an interpreter at the interview, and he said that he had thought that he would be able to manage without one, but had become confused about the difference between a threat and an attack, so had not told the delegate that he had been attacked.
[Applicant 1] said that he had been hospitalised as a result of this attack, but the doctor at the hospital had refused to give him a report of his injuries without payment, and ‘he wouldn’t say that I had serious injuries, just normal injuries’.
[Applicant 1] then handed the Tribunal a bundle of documents claimed to relate to the court proceedings in the High Court in Chandigarh. These documents appear to be documents prepared by Counsel on his behalf and filed in the Court. They are dated [in] July 2004, and some of them bear a stamp stating that they were filed [in] August 2004, although the stamp in no way identifies them as having been filed in the High Court.
The Tribunal noted that the purported Court documents state that [Applicant 1] and [Applicant 2] were married in accordance with Hindu rites in Amritsar [in] July 2004. The documents include a ‘List of Events’ which states in full:
[date]-7-2004 Both the petitioners have married each other as per Hindu rites at Amritsar.
[date]-7-2004 Parents, brothers and close relatives of the petitioner no. 1, respondent no. 4 to 8 who are not happy with the marriage of the petitioners tried to cause injuries to petitioners several times and also tried to involve the petitioner no.2 and his family in false and frivolous cases with the help of local police.
[date]-7-2004 Due to the intervention of the respectables of the society petitioners and respondent no.4 to 8 entered into a compromise with the petitioners and according to that Compromise the parents of petitioner no.1 i.e. respondents no. 4 to 8 took the petitioner no.2 back to home and agrees that they will send petitioner no.1 to the matrimonial home with great pump and show.
[date]-7-2004 When petitioner no. 1. heard no words from the family members of petitioner no.1 then they went to the house of petitioner no.1 where the parents and .relatives of the petitioner no.1 refused to admit the marriage of the petitioners and they openly declared that they will never allow the petitioner no. 2 and will perform her marriage with a boy of their own choice even against her wishes.
[date]-7-2004 Petitioner no.1 is able to escape from the illegal custody of her parents and now living with petitioner no.2.
[date]-07-2004 The petitioners also tried to complain the matter to [deleted] but they were not allowed to meet the [deleted].
[date]-7-2004 The Civil Writ petition under Article 226/227 of constitution of India for seeking protection of life and liberty before this Hon’ble High Court.
The Court documents handed to the Tribunal by [Applicant 1] include the petition to the Court signed by himself and his counsel, affidavit by [Applicant 1] and [Applicant 2] both dated and signed [in] August 2004, an affidavit in reply by the Deputy Superintendent of the police from his town, an order made [in] August 2004 by the Court directing the police ‘to see that the life and liberty of the Petitioners as enshrined under Article 21 of the Constitution of India are not breached by anyone save in accordance with law’, and an order made [in] September 2004 by the Court dismissing the petition as there was no appearance for the petitioners and that in view of the affidavit by the police ‘cause of action does not survive at all’.
The Tribunal notes that the Court documents, including the petition signed by [Applicant 1] and the affidavits by himself and [Applicant 2], all refer to the marriage between [Applicant 1] and [Applicant 2] as having taken place in Amritsar [in] July 2004. The affidavit by the Deputy Superintendent of police confirms that no reports had been made either by or against [Applicant 1] or [Applicant 2], and that the police would provide them with protection ‘for their life and liberty as and when the petitioners’ seek such protection.
The Tribunal asked [Applicant 1] why [Applicant 2]’s family members were named as respondents in the application, and he told the Tribunal that his wife’s parents had found out about the application to the Court [in] July 2004, and they approached the judge to try to prevent the order being made for the marriage to proceed. He said that he was not aware of this at the time, but found out later from the lawyer.
The Tribunal asked why the story of his marriage in these documents differed from the account he had given in his evidence. He said that he just gave his lawyer photographs, as he wanted to get married. He said that he did not see the court documents until a month after the marriage when he left the lawyer’s place, and he had never read them. The Tribunal asked him about his claim that the lawyer had taken him for a religious wedding before going to the Court, and he responded that he ‘couldn’t afford any other documents’.
As noted above, [Applicant 1] told the Tribunal that he had read the part of his application form that sets out the addresses at which he lived. On that form, as on the Form 80 he completed and his wife’s protection visa application, it is stated that [Applicant 1] and [Applicant 2] lived together at his parents’ home from the date of their marriage in 2004 until they left India. [Applicant 1] told the Tribunal that he and his wife had moved around constantly in India because of their fear of attack by her relatives. When the Tribunal pointed out to him that this was not consistent with the information provided in the application, he said that he had provided ‘a lot’ of addresses to his agent, but they were not recorded on the form. He offered no explanation as to why he had not corrected this error despite reading that part of the form after it had been completed.
In her evidence [Applicant 2] said that she and [Applicant 1] had left home during the night [on a stated date in] July 2004 and married at the High Court in Chandigarh the following day. She said that they were first married in a Hindu religious ceremony, then at the Court. She said that she did not know why the marriage certificate and court documents said they were married in Amritsar, but it was not correct.
[Applicant 2] said that no family members attended their wedding. The Tribunal pointed out to her that in the decision record of the Department it states that they said that they had a Sikh wedding that was attended by [Applicant 1]’s father. She said that a few months after they married in Chandigarh [Applicant 1]’s father took them to a Sikh temple for a Sikh marriage, but it wasn’t a full marriage, just an exchange of oaths.
[Mr A] told the Tribunal that he came to Australia in 2007 on a student visa, and now holds a spouse visa. He said that he knew [Applicant 1] in India ‘for about 10 or 11 years’. He then told the Tribunal that he lived in [location], and had met [Applicant 1] at a [sports] tournament in the Punjab when they were each playing for their respective schools. He said that they were in [a stated] grade at school, and were both about [age] years old when they met.
The Tribunal asked what contact they had after their first meeting, and [Mr A] said that they talked on the phone, and met once at the Golden Temple in Amritsar. He said that [Applicant 1] had called him to tell him he had married, and [in] February 2005 he went to visit [Applicant 1] in Punjab. He said that as he was getting off the bus on his arrival, he saw [Applicant 1] being attacked. He helped him to escape. He said that [Applicant 1] was bleeding from his left hand, and then said that he took him to hospital as he was unconscious.
[Mr A] said that this incident happened the first time he had visited [Applicant 1] and the only other time he went to [Applicant 1]’s home was when he took him from the hospital to the house.

Country information

The Tribunal has had regard to a 2012 report from the Immigration and Refugee Board of Canada (IRBC)[1] on intermarriage within India, which states:
Academic sources indicate that the situation of inter-religious couples in India varies depending upon class and region (Professor of sociology 19 Apr. 2012; Professor of history 10 Apr. 2012). There are differences depending on whether the couple is in a rural or urban area (WSO 24 Apr. 2012; Professor of history 10 Apr. 2012). The history professor noted that there is less discrimination towards inter-religious marriages that occur "within a middle-class urban context" (ibid.). She said that inter-religious couples from rural areas who experience problems with their families or villages often move to urban areas, where there is "more tolerance" and it is "easier to meld" (ibid.). Similarly, the WSO legal counsel explained that
[t]here is a very stark difference between the treatment of inter-faith couples in rural areas and urban areas. Whereas in urban areas, it is not uncommon for inter-religious marriages to take place, they are much more controversial in rural areas. ...
In urban areas it would be more difficult to identify inter-faith couples. Even where an inter-faith couple is identified, it is not likely they would face serious hardship. (24 Apr. 2012) …
According to Human Rights Watch, khap panchayats, “unofficial village councils,” in the northern states of Haryana, Punjab and Uttar Pradesh, may issue edicts forbidding inter-religious marriages, among other types of mixed marriages (18 July 2010). Family members have, in turn, threatened couples, filed false cases of abduction against couples, or killed spouses, as a way of upholding the family’s “‘honour’” (Human Rights Watch 18 July 2010).
Hard News, a New Delhi-based news magazine, states that honour crimes, including those against inter-religious couples, range from “quiet murders passed off as suicides, to pre-meditated, long-drawn public humiliation and social boycott” (22 Jan. 2012).
[1] Immigration and Refugee Board of Canada 2012, India: Situation of inter-religious couples from both urban and rural locations, including societal attitudes, treatment by government authorities and the treatment of their children (2005-April 2012), 11 May 2012, available at accessed 3 July 2015
A Professor of Asian Studies quoted by the IRB also stated that marriage between Sikhs and Hindus is “not uncommon” in Punjab state.[2] Singh and Goli also report that inter-caste and inter-religious marriage rates are high in Punjab, partly due to skewed sex ratios in the state.[3] However, Punjab also reportedly has one of the highest rates of honour killings - often perpetrated in retaliation for mixed marriage - in the country.[4]
[2] Op. cit., note 1
[3] Goli, S et al 2013, Exploring the Myth of Mixed Marriages in India: Evidence from a Nation-Wide Survey, Journal of Comparative Family Studies, vol.44, no.2, p. 203
[4] Law Commission of India, Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework, Report No.242, August 2012, p.3 , available at accessed 3 July 2015
The Hindu Marriage Act 1955 applies to marriages among Hindus, Buddhists, Sikhs, Jains, and other persons who are not Muslims, Christians, Jews or Parsis.
The Professor of Asian Studies quoted by the IRB stated that societal attitudes towards interreligious couples are generally “not favourable” and that “social attitudes often [cause people to] ostracize and discriminate against such unions”.[5] Treatment of inter-religious couples ranges from passive discrimination or social exclusion to violent attacks. The degree of mistreatment may depend on a couple’s location and social levels, and either family members or broader communities may be responsible for such treatment.[6]
[5] Op. cit., note 1
[6] Op. cit., note 1; Department of Foreign Affairs and Trade, DFAT Report No. 1285 – India: RRT Information Request: IND38682, 30 May 2011
An article from The Times of India published in 2011 reported that two Hindu sisters – both of whom had eloped to marry Sikh men – appeared in a district court seeking protection from their father and other relatives. The sisters reportedly stated that their “father and other relatives are constantly threatening to kill us for marrying against their wishes”. According to the article, the court “ordered the district police to provide them accommodation in the designated safe house”, at which security guards were reportedly stationed.[7]
[7] Hindu sisters marry Sikhs, seek protection, The Times of India, 4 September 2011, available at accessed 3 July 2015
In May 2011, the Department of Foreign Affairs and Trade (DFAT) advised[8]:
Treatment depends on many factors including the respective religions to which the parties belong and geographic and socio-economic factors. In certain castes, especially in the case of Hindu-Muslim marriages, respective communities and in some rare cases even local politicians become involved.
[8] Department of Foreign Affairs and Trade, DFAT Report No. 1285 – India: RRT Information Request: IND38682, 30 May 2011

According to DFAT, most reported cases of violence against interreligious couples occur in “villages and small towns” in northern and western India. Overall, DFAT did not observe significant media reporting on violence against Hindu-Christian, Muslim-Christian or Sikh-Muslim couples, but also noted that the incidence of such marriages was probably low.

CONSIDERATION OF CLAIMS AND EVIDENCE

The Tribunal accepts that the country information set out above indicates that incidents of violence against interreligious couples do occur in India, particularly in the Punjab, and that such violence is often perpetrated by the families of the couples concerned.
The Tribunal is also satisfied that while such incidents are much less common where the marriage involves a Hindu and Sikh couple, particularly in urban areas where the applicants lived, such incidents have been reported in the Punjab.
This does not mean, however, that there is a real chance that the applicants would face persecution should they return to India. The country information also establishes that marriage between Sikhs and Hindus is not uncommon in the Punjab, and the Tribunal must therefore assess whether the evidence establishes that the risk of serious harm faced by this couple is higher than that faced by many other Sikh-Hindu couples in the Punjab who apparently do not suffer such harm.
In assessing the evidence, the Tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. In particular claims may be made that are not susceptible of proof. The UNHCR Handbook[9] recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. The Handbook also says that given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status and complementary protection obligations.
[9] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at para 196-197 and 203-204
However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant, or to have rebutting evidence available before finding that a particular factual assertion by an applicant has not been made out: see Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey.
The Tribunal found [Applicant 1] to be a very unimpressive witness. He made a number of claims at the hearing which he had not raised either in his written claims in his application or subsequently with the Department, and the Tribunal does not accept his explanations for having failed to raise these claims previously. He said that he was depressed at the time he applied, but produced no evidence that he had been treated for depression other than a letter from a Physician and [specialist] in India referring to a five day period in 2008. He said that no-one helped him with his application, yet said that his application was completed by his representative on his instructions.
[Applicant 1] produced documents to the Tribunal that had not been produced to the Department which he claimed supported the new claims raised at the hearing. As the Tribunal has set out above, the account of the circumstances surrounding his marriage to [Applicant 2] in 2004 in the Court documents that he produced differs substantially from the evidence he gave about the matter in his application, during his interview with the Department, and at the hearing. As noted previously, [Applicant 1]’s claims during his departmental interview are set out in the decision record of the delegate, which the applicant provided to the Tribunal.
[Applicant 1] could provide no sensible explanation, for example, for the fact that the marriage certificate and court documents that he produced all said that he and [Applicant 2] married in Amritsar, while he claimed that they married in Chandigarh. The only explanation [Applicant 1] offered for the marriage certificate stating that they married in Amritsar was that he had applied for the certificate in Amritsar before coming to Australia. Even if the Tribunal were to accept that as true, it does not explain why the court documents he produced, which are dated shortly after the wedding, also state that they were married in Amritsar.
[Applicant 2]’s account of their marriage differed again. She initially said in her evidence to the Tribunal that they married in a Hindu religious ceremony in Chandigarh, and then in the High Court in Chandigarh, and when reminded that she had told the Department that they had a Sikh marriage ceremony she said that [Applicant 1]’s father had taken them to a Sikh temple some months later. Again, these accounts differ from the version of events given by both [Applicant 2] and [Applicant 1] at interview with the Department, as set out in the decision record quoted above.
The Tribunal has had regard to the caution of Kirby J in MIMIA v SGLB (2004) 207 ALR 12; (2004) 78 ALJR 992, where he said (at para.73) (references deleted):
Credibility is often seen as the crucial issue in Tribunal determinations of refugee status. The references in the Refugees Convention to the existence of "fear", and to the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. As I said in Minister for Immigration and Multicultural Affairs v Rajamanikkam, "[m]any, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility". There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The Tribunal must be firmly told - if necessary by this Court - that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.
In the view of the Tribunal, in this case the matters referred to by Kirby J are not such as to sufficiently account for the credibility issues described above. In making that assessment, the Tribunal has also had regard to the fact that the applicants have been in Australia for some six years now, and were in Australia for three years before lodging the application under review.
In the circumstances the Tribunal does not find either [Applicant 1] or [Applicant 2] to be credible witnesses, and does not accept that the claim that they were threatened or attacked by her family because of their marriage, or that they had to move repeatedly to avoid such threats and attacks.
The Tribunal has considered carefully the purported court documents produced by the applicant at the hearing. It is unclear to the Tribunal whether these documents are genuine. As noted above, the chronology of events set out in the documents contradicts the account of the events surrounding the marriage by [Applicant 1]. If the documents are accepted as genuine, while they support the claim that [Applicant 2]’s family was initially opposed to the marriage, they cast doubt on [Applicant 1] account of the subsequent events.
As set out above, for example, the ‘List of events’ in the document describes a series of events that is at odds with the evidence of [Applicant 1], who stated that he and his wife stayed with their lawyer for a month after the wedding and made no reference either in his evidence at the hearing or in his written and oral claims to the Department to the events alleged in that document to have occurred [in] July 2004. The Tribunal notes that the affidavits by [Applicant 1] and [Applicant 2] supporting the petition to the Court, which were handed to the Tribunal by [Applicant 1], provide further details of the matters set out in the List of Events.
The Tribunal has also considered the ‘statutory declaration’ provided by [Applicant 1]’s father. Given that [Applicant 1’s father] makes claims in that document that neither his son nor [Applicant 2] have made, namely that her family have continued to threaten them by telephone since they came to Australia, the Tribunal does not regard it as a credible statement and places no weight on the document.
In the circumstances, the Tribunal is not prepared to place any weight on these documents as providing support for the claim that [Applicant 2]’s family have threatened and physically harmed [Applicant 1] since the wedding, nor does it consider that they provide any basis for a finding that [Applicant 1] or [Applicant 2] face a real chance of persecution should they return to India.
The Tribunal notes that [Applicant 1] and [Applicant 2] lived in India for five years after their marriage. They have claimed that they were constantly under threat during this time, yet told the Department, as set out in the decision record, that they lived within a short distance of her parents’ home much of the time. While [Applicant 1] claims that they had to constantly move around to avoid [Applicant 2]’s family, he also claimed that they ‘threatened me every day whilst I was in India’
The Tribunal does not accept that [Applicant 1] was attacked and physically harmed by [Applicant 2]’s brothers and their friends. He raised this incident for the first time at his interview, and told the Department, as set out in the decision record, that he did not report this incident because the police are corrupt and he did not trust them, yet he then produced to the Tribunal a document purporting to be a report of this incident made by him to the police.
Again, the Tribunal places no weight on this document as it does not accept it to be a genuine police report, and does not accept that this claimed attack ever took place.
[Applicant 1] also claimed in his application that he had been unable to send his [child] to school in India because of his fear of his wife’s family. Given that his [child] was 3 years old when [the] parents came to Australia, and 5 years old when [brought] to Australia (apparently by [the] grandmother), the Tribunal does not accept this claim.
In relation to the claims made by [Applicant 2] that she has been threatened and experienced mental and verbal abuse by her family, the Tribunal notes that she has not claimed to have suffered actual harm at the hands of her family in the more than four years between her marriage and her departure from India, and does not accept that she fears that her family will kill them if they return to India.
In making this finding the Tribunal has had regard to the Refugee Law Guidelines, which state (at para.6.3.2):
In the context of s91R, it has been established that a 'threat' refers to a likelihood of harm as the minimum requirement, rather than the communication of an intention to harm. The applicant in VBAO ([2006] HCA 60) was a Sri Lankan citizen who claimed that members of a rival political party had threatened his life and those of his parents. The issue was whether threats in the form of declarations of intent could constitute serious harm within the meaning of s91R of the Migration Act. The High Court unanimously found that they did not. Gleeson and Kirby JJ held that in the context of s91R, the word ‘threat’ referred to a likelihood of harm, rather than the communication of an intention to cause harm. A declaration of an intention to cause harm may or may not be evidence of a likelihood of future harm, ‘but the question for the decision maker is whether there is such a likelihood’. A decision maker is required to determine the risk of future harm, rather than future communications of a similar nature.
The Tribunal considers that even if it were to accept that the claimed threats and abuse had occurred, and given the findings above as to credibility of [Applicant 2] and [Applicant 1] it is not satisfied that they did occur, it is not satisfied that such threats are such as to justify a finding that there is a real chance that the threats would be carried out so that the applicants would suffer harm within the meaning of s.91R if they return to India.
The Tribunal also found [Mr A] to be an unconvincing witness and does not accept that his evidence was truthful. From his own evidence, he had met [Applicant 1] only once or twice in person before he claimed that [Applicant 1] rang him to tell him that he was married in February 2005. He claimed that he travelled to visit [Applicant 1] at his home in the Punjab and arrived just as he was being attacked by his wife’s relatives. The Tribunal does not believe that this incident ever occurred.
Accordingly, the Tribunal is not satisfied that there is a real chance that any of the applicants would face serious harm as defined in ss.91R(1)(b) and 91R(2) of the Act at the hands of [Applicant 2]’s family should they return to India.
On the basis of the findings above, the Tribunal is also satisfied that none of the applicants would face harm of a kind mentioned in s36(2A) of the Act as a necessary and foreseeable consequence of their removal from Australia.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

The Tribunal affirms the decision not to grant the applicants Protection (Class XA) visas.

Bruce Henry
Member

[2015] AATA 3147

7 July 2015

Key Legal Topics

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Administrative Law

Immigration

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Natural Justice

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