1412170 (Refugee)

[2015] AATA 3163

1412170 (Refugee) [2015] AATA 3163 (13 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412170

COUNTRY OF REFERENCE:                  India

MEMBER:Michelle Grau

DATE:13 July 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 13 July 2015 at 1:25pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant, who claims to be a citizen of India, applied to the Department of Immigration for the grant of a Protection (Class XA) visa [in] September 2013 and the delegate refused to grant the visa [in] June 2014 under s.65 of the Migration Act 1958 (the Act).visa. The applicant lodged an application for review on 11 July 2014 with this tribunal, which was constituted on 25 March 2015.

2. 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 of the same class. The relevant law is set out at attachment A.

3. The applicant appeared before the Tribunal on 23 June 2015 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent who attended the hearing. At hearing the applicant provided a divorce certificated dated November 2014 in respect of her first husband and a marriage certificate dated [June] 2015 to a second husband. The applicant’s second husband (married [in] June 2015) attended the hearing as a support person. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The applicant claims:

   a.During her marriage with her exhusband she suffered significant domestic violence; was physically tortured and threatened on many occasions and forced to learn about his religion. She provided a copy of a [Police] card with domestic violence and reference numbers written on it.

   b.He was verbally and physically abusive and she attempted to resolve the issues with his family but they were supportive of his behaviour. The violence was mainly around dowry and inlaws attempting to convert her to his religion. On one occasion she had to attend hospital due to [an injury] and required surgery. She provided [a hospital] referral letter for an outpatient appointment in May 2012.

   c.On many occasions the ex-husband threatened to kill her if she returned to India as he knows that he is able to avoid being convicted in India. The rate of violence and rape increased in India and this leads her to believe if she returns her life and safety will be at risk.

   d.Once they relocated to Australia the ex-husband began abusing her for more money and religious conversion. The applicant separated from the husband because of his behaviour. The ex-husband and sister in law started abusing and threatening her about dowry money and conversion to Sikhism. It led her to be unable to complete her studies.

   e.She reported the ex-husband to the police five times. His family have threatened to kill the applicant and make it look like suicide or an accident. They have made it clear if she does not pay the dowry and convert they will inflict serious harm. She cannot as her own religion is Hindu and Christian.

   f.She is more exposed and vulnerable to rape and violence in India and there are ongoing issues with the dowry within her family. There is no protection from authorities in India and significant levels of crime, raps and violence.

   g.The father in law is an anti-social element in [Punjab] who has police and political connections. The police are easily bribed. She is worried with the help of police and contacts the ex-partner’s family may kill her. There will not be any help from harassment, physical torture, threats and possible death all because of dowry and religion.

5. In pre-hearing submissions, the agent submitted the applicant is divorced and now remarried to an Australian citizen. The threats made by her ex-husband and family relate to their displeasure of their union as Hindu/Christian and pressure to convert to Sikhism and her own family have disowned her. Despite her remarriage her divorce status will remain and the situation for divorced women is they are highly disadvantaged and there is residual stigma attached to their interreligious union. The agent provided country information about honour killings, familial violence, domestic violence and religious freedom and lack of reliable state protection. The ex-husband’s father also has connections to local authorities and potential corruption exists. She could not relocate to Nepal as divorced/single/ separated women face disadvantage also and there has been the recent natural disaster.

   FINDINGS AND REASONS

6. In summary, the issue in this case is whether the applicant faces a real chance of serious harm or real risk of significant harm upon return to India from her ex-husband, his family, her family or society.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of reference - India

8. In the protection visa application, the applicant claims that she is an Indian citizen by birth; does not hold citizenship or nationality of any other country and does not have a right to enter and reside, temporarily or permanently, in any other country. The tribunal finds the applicant is outside her home country of India. Having considered all the evidence before it, the tribunal is satisfied that the applicant is a national of India and of no other country.  The tribunal has assessed the applicant’s claims against his country of nationality, namely India. On the evidence before it, the tribunal is satisfied that the applicant is not excluded from Australia’s protection by s.36(3) of the Act.

   Marriage, dowry and religion

9. The applicant claimed she met her husband in Australia while both were studying in Australia. They married in a Sikh ceremony [in] October 2010 without the knowledge of her family when she returned to India for a visit between [September] 2010 and [October] 2010.  She claimed her husband’s father did not attend the wedding but the mother and few others did. She claimed she was not aware she was getting married and it was rushed and the husband took her passport. She claimed she did not contact her husband when she returned to Australia for a long time.

10. The tribunal expressed doubts that the applicant, an educated, urban and articulate young woman would be forced into a marriage and would not contact her parents or that she would not be aware she was attending her wedding ceremony. Further, the tribunal expressed doubt if she were scared of him, she need not have brought him from India to Australia. The applicant claimed once one is married that is that. He convinced her to marry him as he used to plead and be emotional and they needed wedding photos for immigration and she is scared of him.

11. The applicant claimed she did not tell her parents of her marriage for more than a year or less, she was not sure. When she returned to India, her parents were planning that she be married but she persuaded them go to Punjab to meet the husband and while there told them she was already married. Her parents were shattered, but they held a Hindu ceremony [in] May 2011 in Hyderabad.

12. While the tribunal accepts the applicant married based on the documentation, it does not accept the applicant’s claims in relation to threats or problems with the marriage as claimed or that she is fearful of the husband or his family disapproved of the marriage or they threatened her.

13. Firstly, the tribunal does not accept the applicant’s claim that she returned to India not knowing she was going to marry, but then married [in] October within a matter of days of arriving in India. The tribunal does not accept that arrangements could be made that quickly for such a ceremony or that they could convince the husband’s parents, or even just the husband’s mother, (who disapproved) that the marriage should take place in such a short time frame. Further, the tribunal does not accept the applicant was not aware she was being married or that she was forced to marry as she is an educated articulate young woman with a degree in [subject], and was studying a master’s degree in Australia. The tribunal considers the applicant has embellished her claims of fear and being forced into a marriage.

14. Secondly, the student visa records show the husband’s parents supported the applicant and her husband in the student visa application and provided the financial support. [1]

    [1] Put pursuant to s 424AA

15. Thirdly, the applicant provided a statutory declaration saying she was married and the elders approved of the marriage.[2]  The tribunal does not accept the husband’s parents disapproved of the marriage or made threats to her.

    [2] Put pursuant to s 424AA

16. Fourthly, while the tribunal accepts that the applicant’s parents may have been shattered to learn of her marriage some months later, they held a Hindu wedding ceremony in Hyderabad in May 2011 for the couple, which suggests they were persuaded to accept and approve the marriage.

17. Further, the applicant confirmed she returned to India between January 2012 and March 2013 and stayed both at her in laws and her parents’ home with her husband and suffered no harm. The tribunal does not accept that the applicant’s family or her husband’s family disapproved or made threats to her.

18. Further, the applicant’s evidence about their separation was hesitant, vague and inconsistent with movement records. The applicant had difficulty recalling when they separated, even approximately.

19. The tribunal put to her that at the department interview she claimed they separated in February 2012 when the husband left the home, and finally in September 2013[3]. The applicant agreed they separated in February 2012. She did not tell immigration they separated but she told her lawyer. The lawyer informed she could not remove the husband from her MRT and Federal court applications.

    [3] Put pursuant to s424AA

20. When the tribunal expressed concern that separation in February 2012 was inconsistent with movement records which showed they both were in India and returned together to Australia in March 2012, the applicant said they separated in 2013. 

21. The applicant confirmed she had returned to India in January 2012 to stay with her parents and then met her husband in Punjab for his sister’s wedding. She tried to persuade her parents to come to the wedding but they did not. She and the husband returned to Hyderabad for 5 days and stayed with her parents and returned to Australia together. 

22. The tribunal considers the applicant’s travel to India, attending the sister in law’s wedding, the fact the couple stayed with the in-laws and her parents and they both returned to Australia together through immigration at the same time is inconsistent with her claim they separated in February 2012 or that the husband left the home in February 2012. Further her claim at hearing that it was she who left the family home to live in a backpackers hostel for a while, until finally telling him to leave, is not consistent with claims he left in February 2012 to return occasionally. Finally, the applicant confirmed the husband left her after the refusal of ministerial intervention application in 2013.

23. The tribunal found the applicant’s evidence about when they separated hesitant, vague and changed throughout the hearing. The tribunal accepts that she may not recall the precise date they separated. However, given they separated only a couple of years ago and her claims revolved around her marriage, and she is intelligent and articulate the tribunal was concerned about the manner in which she gave evidence about their separation.  The tribunal considers her poor evidence in this regard suggested she was making up her answers as she went along and not recounting true events.

24. Further, the tribunal also had doubts that the applicant and the husband ever lived together as husband and wife as immigration records showed the couple did not live at the same address during their marriage other than between [July] 2013 and [August] 2013 at [suburb], which was well after they had separated.  The applicant’s husband lived at addresses in [two suburbs], while the applicant lived at [other suburbs]. [4]The applicant claimed she had evidence of lease agreements and her old boss knew of their problems and could verify they lived in the same house until their separation. The applicant claimed she did not live in [the first suburb] and her second husband commenced living with her in [another] address sometime in 2013, though she was unsure. 

    [4] Put pursuant to s 424AA

25. The tribunal had serious concerns that the marriage between the applicant and her ex-husband was contrived for the purposes of obtaining a migration outcome. This was because the applicant’s account of the quick marriage (despite claimed disapproval) lacked credibility. Further, she gave vague evidence about separation and the immigration address records showed they were not living together at the same address, until after they separated.

26. In response to s 424AA concerns above and her credibility the applicant claimed she and her husband lived at the same address and had lease agreements; her current husband lived at [another address] from 2013 and the marriage was not contrived for permanent residence gain as she would have done her studies instead and not suffered the relationship and had six years gap in her life. While she searched on the internet about visas, she did not know and made mistakes. Her current husband supported her a lot and his parents sent the support letter inviting her parents to visit Australia, but the visitor visas were refused.

27. While the tribunal had serious concerns, it gives the applicant the benefit of the doubt and accepts that the applicant and her first husband lived together for some period, were separated and according to Family court documents  were divorced in November 2014. 

28. As discussed above (and below) however the tribunal does not accept the ex-husband’s  parents or family or ex-husband disapproved of the marriage or threatened her or tried to convert her or made threats about the dowry or harming or killing her. The applicant’s return to India where she lived with them on at least two occasions is inconsistent with claims of feared harm and threats. 

    Domestic violence and threats or harm

29. The applicant claimed once they were in Australia together, ([in] October 2011) her husband began abusing her and she made five police complaints of domestic violence and was hospitalised for [an injury].

30. As discussed with the applicant the police complaint cards do not mention or refer to any person, are copies and do not appear to have been written in date order. They do not name any person or provide any detail or information about the incidents. Further, the applicant has not provided any report or information or evidence of protection order. The applicant said the ex-husband took all her paperwork and she was not able to get copies from the police without going through her lawyer. However, as discussed with the applicant at hearing it is not necessary to use a lawyer to obtain copies of complaints and the process of obtaining copies of the information is set out on the police website. The tribunal does not accept she could not have obtained copies or that she needed a lawyer to do so, as she is an articulate, educated young woman with a degree in [subject] majoring in [subject] and speaks fluent English. Neither the applicant, nor her ex-husband is named in the [police] document and there is no information about the incidents. The tribunal has considered the [police] document but places no weight on it.

31. Secondly, the tribunal considers the applicant’s evidence at hearing about protection orders changed in response to tribunal concerns and that she was making it up as she went along. For instance, when the tribunal noted if she had made a number of complaints why there was no protection order, the applicant said she was told by police and her lawyer to lodge one, but she did not. When the tribunal expressed doubts that if she had made so many complaints that police would have applied for a court order, the applicant then added the police lodged a court order. She claimed she went to court but did not have a copy of the papers. The tribunal considers the applicant added to her story in response to tribunal concerns. 

32. Thirdly, her claims of constant abuse and violence are not consistent with her visiting India to attend her sister in law’s wedding in 2012 and both the applicant and her husband returning to Australia together [in] March 2012.  Further, it is not consistent with the fact that she and the husband continued to be parties to student visa applications and review applications and appeal to the FMC up to July 2013. The applicant claimed she was told by her lawyer that she could not decouple her husband from her applications.  However, this is not consistent with her signing agreements with her husband about keeping both of their immigration applications linked to each other.

33. Fourthly, the tribunal considers if the applicant was living in fear of her husband, suffering constant domestic violence, not attending college and having problems with her visa status that she would have applied for a protection visa earlier. Rather, she applied after she had exhausted all appeal avenues. The tribunal does not accept that she did not know about protection visas as she is an articulate educated and intelligent young woman who also had legal representation. Further the applicant had lodged appeals and ministerial intervention request which suggests she was well aware of the immigration and legal process.

34. Fifthly, the medical report provided is an outpatient appointment and is not evidence of any emergency or surgery required or that it was a result of any violence.  The tribunal accepts she had an outpatient appointment in May 2012 but finds she has exaggerated and fabricated her claims that it is a medical report about her admission to hospital for a cut or [an injury] as a result of her husband’s violence.

35. Sixthly, like the delegate, the tribunal considers the applicant’s meeting with the ex-husband and his family in August 2013 where no threats made and they were only rude to her further reinforces the tribunal’s view that threats have not been made and the applicant is not fearful of the ex-husband or his family.

36. Seventhly, at hearing when asked about contact with the ex-husband the applicant confirmed, other than the last few days, she had had no contact with him for two years. She stated in the last few days she received text messages from him but these were asking about what she was doing and what was happening with her visa status. There were no threats made.The applicant responded to him with some lies about where she lived and her visa status.

37. Further, the fact that the applicant has not changed her phone number and kept the same number she has always had is inconsistent with her claimed fear of harm and threats from the ex-husband.

38. Further, when asked at hearing why she feared harm upon return she said the inlaws did not like her and it would be hard for her as a divorced woman. However, the applicant is now married and no longer a divorced woman.  In any event, the tribunal does not accept the ex-husband’s family have threatened her or that they have any adverse interest in her. The tribunal does not accept the applicant’s ex-husband has any adverse interest in her or seeks to harm or threaten her in Australia or in India.

    Applicant’s family

1. The applicant claimed her parents would not accept her and it would be hard to live alone elsewhere.

2. However, she also confirmed she was contact with her parents and had invited them to her second wedding but their visas had been refused by immigration because of her immigration status. When the tribunal noted this might suggest her parents had not disowned her and would accept her, she said it was her mother and [sibling] who had applied to visit Australia for her wedding. She had not told her father she was remarried, only engaged. She said her mother knows everything, however.

3. The tribunal has considered her evidence and the letters from her parents in 2014, but it does not accept her parents have or will disown her. Her parents put on the Hindu wedding ceremony for her first marriage, even after finding out she had already married. The applicant has returned to India twice and stayed with her parents. She confirmed she remains in regular contact with her family two or three times a week and had been in contact with them the day before the hearing. She confirmed she had told her mother everything about her new relationship and marriage. Her mother and [sibling] applied to visit Australia for a wedding. Even if her father only knows she is now engaged rather than married, in the past he funded her first wedding in similar circumstances. The tribunal does not accept her parents have disowned her in the past or will do so in the future. In addition, at hearing the applicant said her remarriage has meant she “got her name back”, which further reinforces the tribunal’s view that she does not face any harm from her family or society.

4. Further, the tribunal does not accept that her parents disowned or did not accept her because of inter religious marriage as her parents are also from two different religions – Hindu and Christian. The applicant confirmed her mother practised Hinduism and Christianity and the applicant went to a Christian school and also attended temple and practised Hinduism.

5. Further, country information is that hostility to unconventional marriage is less likely among educated urban families. [5] The applicant’s family are educated, from an urban area, her father being a businessman involved in [a line of business], the applicant completed a degree in [subject] (majoring in [subject]), her [siblings] live in [another country] doing a [course] and her [other sibling] is studying for a [career] in India. The tribunal does not accept that her family who are from an interreligious union themselves and are urban educated people would not accept the applicant upon return to India because of her past marriage to the ex-husband or divorce.

   [5]  Jayaram, V n.d., ‘Hinduism and Marriage’, Hinduwebsite.com <>

   The tribunal finds her remarriage has further enhanced her relationship with her parents and society. The tribunal does not accept that her family or society wound not accept her because of her now second marriage to her current husband. The tribunal does not accept she faces any harm from her family, the former in-laws or society.

6. Having considered the evidence, the tribunal does not accept the applicant was assaulted or threatened or controlled by the husband or that she was fearful of him. The tribunal does not accept the ex-husband’s family threatened her or her family would disown or not accept her or that she could not live with them if she returned. The tribunal does not accept the ex-husband’s parents or family or ex-husband disapproved of the marriage or threatened her or tried to convert her or made threats about the dowry or harming or killing her.

   Well founded fear

7. The tribunal has considered the country information about divorced women and intercaste and interreligious marriages. The tribunal accepts country information that there are reports of honour killings and harm in the Punjab in particular in more rural, poorer and uneducated areas[6]. However intermarriage between Hindus and Sikhs are more generally accepted than with Christians, Jews or Muslims.[7] Further, the tribunal does not accept the applicant’s family or her ex-husband’s family threatened her or disown her or that they have any adverse interest in her because of her past marriage, divorce and now second marriage.

   [6] Law Commission of India 2012, Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework, Shakti Vahini website

   [7] Sajid, T 2010, ‘Faith And Marriage’, SA Global Affairs website, February < Mehrotra, M 2004, ‘“Triple Outsiders”, Gender and Ethnic Identity Among Asian Indian Immigrants’, PhD dissertation, Virginia Polytechnic Institute and State University, Blacksburg, p.26 < ‘38% of Hindus Marry Outside Dharmic Faiths in America’ 2009, Interfaith Shaadi website, 5 November < Indiana University n.d., Module 2: Present-Day India(2) <>

   The tribunal has considered the social stigma and society response to divorced (or single) women. The applicant is an educated, urbanised, highly intelligent and experienced and mature woman who has worked in the past in India and Australia and there is no reason she could not do the same upon return. The applicant feared it would be difficult as she has been away for six years. However, the tribunal does not accept that the applicant faces serious harm in that regard as she has been in regular contact with her family and has returned to India in 2012, only three years ago. Further, the applicant is no longer a divorced woman. Even accepting she may carry the stigma of being divorced in the past from an interreligious or caste marriage, the tribunal does not accept, given her circumstances and the country information, that she faces a real chance of serious harm upon return to India in the foreseeable future.

8. The tribunal has also considered her circumstances as a married woman with her partner in Australia but it does not accept that she faces real chance of serious harm upon return even in those circumstances. The tribunal does not accept she faces a real chance of rape or violence or harm upon return. As discussed above the tribunal does not accept her family will not accept her and support her if needed. Further, the tribunal does not accept given her qualifications and background and resourcefulness, she could not find employment and help support herself upon return.

9. The tribunal has considered the claims of the applicant individually and cumulatively. For the above reasons, the tribunal finds the applicant faced no serious harm in the past. Looking to the foreseeable future, the tribunal is not satisfied the applicant faces a real chance of serious harm upon return to India due to her race, religion, political opinion, membership of a particular social group. The tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if she returns to India.

   Real risk of significant harm

10. The tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In making its findings, the tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.  

11. For similar reasons as set out above, the tribunal does not accept the applicant faces a real risk of significant harm upon return to India. For reasons set out above, the tribunal has not accepted the applicant faces any harm from her family, former in-laws or ex-husband. As discussed above the tribunal has found the applicant is a resourceful, educated, urban, articulate, skilled, confident young woman who has the support of her family and who has now remarried. The tribunal does not accept she faces rape or violence or significant harm upon return. While the Tribunal accepts that some stigma remains towards divorced women or inter religious/caste relationship, it does not accept that the applicant, faces a real risk of significant harm as contemplated by section 36(2A) of the Act.

12. Having considered these circumstances, singularly and cumulatively, the tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there would be a real risk that she would suffer harm which would amount to significant harm.

    CONCLUSIONS

13. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

14. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). 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 the criterion in s.36(2).

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Michelle Grau
    Member

    
    

    RELEVANT LAW - ATTACHMENT A

    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 of the same class.

    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.

    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’).

    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.