1412389 (Refugee) - [2015] AATA 3160

1412389 (Refugee) [2015] AATA 3160 (22 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1412389
COUNTRY OF REFERENCE:                  India
MEMBER:Fraser Syme
DATE:22 July 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 22 July 2015 at 12:14pm

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

The applicant is [age] year old man from Punjab state, India. According to applicant because he divorced his ex-wife, her relatives have threatened to harm him and his family. Divorce is not permitted in Sikhism. Her family can use their political power as supporters of the ruling party in his home state to harm him and his family who support the opposition party. He has been threatened too by the boyfriend of his ex-wife. The boyfriend is connected to a terrorist group in India. He fears the relatives or boyfriend of his ex-wife will harm him if he returns to India.
This review application raises the following issues for the Tribunal to determine:
a.Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to India.
b.Are there substantial grounds for believing there is a real risk the applicant will suffer significant harm if the applicant is removed to India.
HISTORY OF THE APPLICATION FOR REVIEW
The applicant entered Australia on a student visa in July 2009. He applied to the Department of Immigration for a protection visa in November 2013 after being located by the department as an unlawful non-citizen. The applicant participated in an interview with the delegate in January 2014, the Tribunal has listened to a recording of that interview. The applicant provided to the delegate: his Indian passport; marriage certificate; divorce Order; father’s Congress member card, letter from Block Congress Committee, Affidavit of his father (dated December 2013); Affidavit of a wedding witness (date January 2014); father’s land sale deed (dated 2008) and an Affidavit of the village head (undated).
In the decision under review, the delegate accepted the applicant and ex-wife divorced and her relatives threatened him, but those threats ceased in 2011. The delegate found that the ex-wife was lawfully seeking compensation from his family through the courts and her doing so was not a threat to the applicant. The delegate rejected that the ex-wife’s family were harming him or his family and rejected either the applicant’s or his ex-wife’s family had any significant political profile. Therefore, there was no Convention reason to the harm the applicant feared. The delegate found the applicant did not face a real risk of significant harm because the relatives of his ex-wife had ceased threatening him and he could receive effective state protection from the Indian authorities. The delegate was not satisfied on the available evidence that the applicant faced a real chance of serious or significant harm if he returned to India. The applicant’s claims regarding threats by the boyfriend of his ex-wife were not addressed by the delegate and he did not raise claims regarding the boyfriend’s links to a terrorist organisation until at the Tribunal hearing. The applicant provided a copy of the decision of the delegate with the review application.
The first named applicant appeared before the Tribunal on 15 July 2015 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The migration agent did not attend the hearing and did not provide any submissions.
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 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 (“DFAT”) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT published an assessment for India (“the DFAT Country Report”) the day before the hearing, which the Tribunal has had regard to.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In making its findings, the Tribunal is mindful the applicant was [age] years old at the time of the hearing. The Tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance. The Tribunal is satisfied the standard of interpreting at the hearings was reasonable. The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.
The Tribunal finds the applicant is a national of India. He provided a copy of his Indian passport. He made no claim to be a national of any other country. The Tribunal is satisfied he does not have a right to enter and reside in any other country for the purpose of s.36(3). The Tribunal accepts the applicant’s claims should be assessed against India for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered his home village, the place he resided for the majority of his life and where he said his parents still reside, to be his home region in India.
The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’ The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status). The Handbook further states:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal acknowledges, while it may have regard to the Handbook, the Handbook is not binding. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see Randhawa v MILGEA (1994) 52 FCR 437.
During the hearing, the Tribunal put to the applicant that his credibility was an issue.
Well-founded fear of persecution
The Tribunal is mindful it must consider the applicant’s chance of harm not only currently but into the reasonably foreseeable future.
The applicant has made several claims as to why he fears harm, all of which relate to his divorce from his wife. On the basis of the marriage certificate and divorce Order he provided to the department, the Tribunal finds the applicant married his wife in India in September 2008 and they divorced in Australia in October 2011. The applicant gave inconsistent evidence as to the circumstances of how he and his ex-wife agreed to divorce, which the Tribunal discusses in more detail below.
Honour killing: In his protection visa application forms, the applicant said relatives of his ex-wife or the Sikh society generally will seek an honour killing because divorce is not permitted in the Sikh religion. The Tribunal discussed with the applicant country information [1] that supports his claim divorce is looked down upon in Sikh religion, but there are circumstances in which a divorce can be granted. It discussed too the rising rate of divorce in India, albeit divorce rates were very low by international comparison. [2] The applicant resiled from his claim of fearing an honour killing. He said he did not write those claims and he did not fear an honour killing. He did still fear he would be killed by his ex-wife’s relatives because they were angry at him for divorcing her. He told the Tribunal he did not read what his friend had written in the application form before singing it. The Tribunal put to him it considered that undermined his credibility that he would sign the protection visa application without understanding the claims he had made. He commented the application was made in a hurry because he was in detention.
[1] see and
[2] >
The Tribunal accepts the applicant is a Sikh and that divorce is looked down upon in the Sikh religion. However, as the applicant has told the Tribunal he does not have a subjective fear of being subject to an honour killing from the relatives of his ex-wife or the Sikh community generally, the Tribunal has had no further regard to this claim.
Threats from relatives of his ex-wife: The applicant claims relatives of his ex-wife threatened to kill him via telephone before and after he divorced his ex-wife. The threats to him personally ceased when he changed his mobile telephone number towards the end of 2011, after the divorce. He claims the relatives of his ex-wife have then made threats against him to his family in India and have made threats against his family too. He provided three Affidavits to support the claims of threats against his family. One from the village head is undated and makes reference to a dispute between the applicant and the ex-wife, but no reference to any threats. An affidavit from a witness to the applicant’s wedding dated January 2014 states relatives of the ex-wife have threatened to kill the applicant and threatening the applicant’s family. The Affidavit of the applicant’s father dated December 2013 states after the divorce, relatives of the ex-wife threatened to kill the applicant. Then in 2011 after the applicant changed his mobile telephone number, the relatives of the ex-wife started to threaten the father and his family. The Tribunal considers the Affidavits are largely consistent with the claims of the applicant but they too are consistently vague and provide no detail of the threats to applicant’s family. The Tribunal discussed with the applicant information from the DFAT country report regarding the prevalence of fraudulent documents in India, which would be a reason for it to put less weight on the Affidavits.
The Tribunal put to the applicant he personally had experienced no threats since 2011, why would if he returned to India in 2015 would the relatives of his ex-wife wish to harm him. He replied that they continued to threaten his family. Other than threats, nothing had happened. He further said that he had asked his family to talk with the family of his ex-wife to settle things and once the things were settled, he was willing to return to India. When asked what steps had been taken to settle things the applicant was vague. He spoke of telephoning the relatives who arranged his marriage and of their in turn speaking with the relatives of his ex-wife. He said he was willing and able to pay money to settle everything. However, the relatives of his ex-wife did not want money, they wanted him. The Tribunal commented if the threats against him and his family were so serious, it would be reasonable to expect more had been done to settle the dispute with the relatives of his ex-wife. That nothing more had been done suggested to the Tribunal the threats were not so serious and the applicant was exaggerating the risk of harm to him.
The Tribunal discussed with the applicant his claim that the relative of his ex-wife could use their political power harm him. It noted from the submissions of the migration agent to delegate it was initially claimed her family supported the Bharatiya Janata Party (“BJP”) but that they actually supported the Khalibhajapa Political Party (“KPP”). The Tribunal commented it had searched registers of political parties both at the state and central government levels [3] and could not find reference to the KPP being a registered political party or that any members of the KPP were elected to the Punjab state parliament. The applicant initially stated KPP only contest local elections. The Tribunal noted it would still need to be a registered party. He then said KPP was part of the ruling party in Punjab, the Tribunal noted that is the Sikh Shiromani Akali Dal (“SAD”). He then said KPP, BJP and SAD are all the same. The Tribunal noted country information [4] SAD won the most recent Punjab state election to govern in its own right, whereas SAD was previously in coalition with BJP. The applicant blamed an error by his migration agent to not set out fully the correct party name. The Tribunal considers the inconsistent evidence regarding the political party which the applicant claims the relatives of his ex-wife are connected to undermine that the applicant is giving credible evidence regarding the relatives of the applicant’s ex-wife having any political power.
[3] >
The migration agent has raised claims that the relatives of the ex-wife have used their political power and false claims that the applicant abused his ex-wife to bring court cases against the applicant. At the hearing, the applicant conceded there were no court cases against him and that neither he nor his family had made any complaints to the police against the relatives of his ex-wife. The Tribunal put to the applicant his not doing so suggested he had exaggerated the risk of harm to him. He replied the police would have to be bribed to do anything and event then anything could happen.
In his application form, the applicant said his ex-wife requested a divorce, and he agreed. He repeated similar evidence during the hearing. However, in his interview with the delegate, he said he asked for the divorce because he had learned the ex-wife was cohabiting with her boyfriend and the applicant wished to get divorced. In his handwritten statement sent after the protection visa application, the applicant stated the ex-wife extorted him for money or she would divorce him and cancel his visa. The applicant initially commented that it was a mistake by him migration agent to say that. He then said he did not remember whether his wife threatened him. The Tribunal considered being extorted by his wife and threatened with the cancellation of his visa would be a memorable event. He replied all couples have their arguments. The applicant told the Tribunal he has had no contact with his ex-wife since his divorce in 2011 and does not know her whereabouts or whether she has re-married with the boyfriend or another gentleman.
The Tribunal considers the difficulties identified with the evidence above support a conclusion that the applicant is exaggerating the threat to him of harm by the relatives of his ex-wife. It places little weight on the three Affidavits because they provide little detail as to the nature of the claimed threats to the applicant and his family in India. The Tribunal accepted above the applicant is a Sikh and that divorce is looked down upon in the Sikh religion. The Tribunal considers it plausible the male relatives of the applicant’s ex-wife were displeased by the divorce. However, given the vague nature of the threats, and albeit there is some prospect of settling any dispute but that no real effort has been made to so settle the dispute since 2011, the Tribunal finds the applicant has exaggerated the risk of harm arising from any dispute between him and the family of his ex-wife arising from their divorce. Weighing in favour of that finding is the applicant not knowing the whereabouts or the current marital status of his ex-wife. If the applicant was in regular contact with her relatives through his relatives (as he claimed at the hearing) and that his family have also been talking to her relatives about a settlement and the relatives of his ex-wife are still making threats against the applicant’s family, it is implausible despite all of that contact, the applicant does not know the whereabouts or status of his ex-wife. For those reasons the Tribunal rejects that there are ongoing threats to the applicant or his family from the relatives of his ex-wife. The Tribunal considers there to be only a remote or speculative chance and therefore not a real chance that the applicant would suffer serious harm by the family of his ex-wife. As the Tribunal has found there is no real chance of the applicant suffering serious harm, it is unnecessary to consider whether that harm is for a Convention reason.

Threats from Babbar Khalsa and boyfriend of his ex-wife: At the hearing the applicant initially claimed he had been threatened by the Babbar Khalsa, which he said is a terrorist group. The Tribunal noted he had not raised that claim prior to the hearing. He said that he heard one of his ex-wife’s cousins was connected to Babbar Khalsa. The cousin had gone to the UK to avoid the police in India, but was now possibly back in India. A friend of his familiar with the boyfriend of his ex-wife told the applicant the boyfriend was also connected to the Babbar Khalsa. He added that he had mentioned being threatened by the boyfriend of his ex-wife during the interview with the delegate. The applicant then conceded that he had not been threatened by the Babbar Khalsa in the past. But feared the cousin and boyfriend could rely on the power from connections to the Babbar Khalsa to harm him if he returned to India.
The applicant told the Tribunal he had not met the boyfriend of his ex-wife. He believed the boyfriend went back to India and was unable to return to Australia. He did not know the whereabouts of the boyfriend or as noted above, whether the boyfriend and married the applicant’s ex-wife. When asked to describe how the boyfriend threatened him, the applicant told the Tribunal that the boyfriend called him in 2011 from overseas and said the boyfriend had not come back to Australia because of the applicant. He had no other contact with the boyfriend. When asked how that was in anyway a threat, the applicant added the boyfriend said he will not spare the applicant if the boyfriend sees the applicant in India. The applicant claimed his friend told him last year the boyfriend is still angry at the applicant and asks whether the applicant has returned to India. The applicant added that he feared anything could happen if he returned to India.
The Tribunal considers that the applicant raised no claims regarding the Babbar Khalsa prior to the hearing greatly undermines the credibility of that claim. However, he eventually conceded he had not received any threats from Babbar Khalsa. In line with the Tribunal’s concerns regarding his credibility above, the Tribunal considers the applicant has again exaggerated the risk of serious harm to the applicant from the Babbar Khalsa. His evidence regarding the claimed links of the cousin and boyfriend of his ex-wife are tenuous at best and in the Tribunal’s view are fabricated so as to create a profile on which the applicant could claim protection. The Tribunal finds that the applicant has not been threatened by Babbar Khalsa in the past and rejects that the cousin or boyfriend of his ex-wife have any connection to Babbar Khalsa. While the Tribunal accepts Babbar Khalsa is banned militant organisation located in the applicant’s home province the Tribunal is not satisfied there is anything more than a remote or speculative chance and therefore not a real chance the applicant faces serious harm from the Babbar Khalsa if he returns to India. As the Tribunal has found there is no real chance of the applicant suffering serious harm, it is unnecessary to consider whether that harm is for a Convention reason.
The Tribunal has already considered above the threat to the applicant from the cousin of his ex-wife as one of her relatives in paragraph 27. The Tribunal is willing to accept as plausible there is a degree of animosity between the applicant and the boyfriend of his ex-wife. The Tribunal considers there to be only a minor and vague natured threat which occurred in 2011. The Tribunal notes too the applicant had no contact with the boyfriend prior to or since then. It rejects as fabricated his claim at the hearing that the boyfriend last year was asking about the applicant. He did not raise that incident when invited at the commencement of the hearing to inform the Tribunal of any new events which had occurred. Importantly the applicant does not know the whereabouts of the boyfriend, or that if he is even in India. For those reasons, the Tribunal considers there to be only a remote or speculative and therefore not a real chance the applicant will face serious harm from the boyfriend of his ex-wife if he returns to India. As the Tribunal has found there is no real chance of the applicant suffering serious harm, it is unnecessary to consider whether that harm is for a Convention reason.
Pro-Congress political opinion: The applicant has claimed his father is a member of India Congress and provided documents to the department showing that. As set out in the delegate’s decision, the delegate sought an opinion of a document examiner regarding those documents which returned inconclusive. The Tribunal is however willing to give the applicant the benefit of the doubt that the applicant’s father is a member of Congress. The applicant told the Tribunal he was never a member of Congress, but he did support his father. This is contrary to what the applicant told the delegate during the interview and was confirmed in post interview request for information by the applicant’s migration agent wherein the applicant’s evidence is he became a member of Congress in 2004.
The applicant told the Tribunal his father had been an elected official at the local level once and city level twice. He further told the Tribunal his father had never been harmed in the past due to his political activities for Congress. He added his father would hire armed guards during election times. He offered no country information to suggest members or supporters of Congress are harmed in his home area, or elsewhere in India.
On the basis of that political service by his father, the Tribunal is willing to accept the applicant has a political opinion in support of the Congress party, albeit he was never a member of the party. The Tribunal considers it plausible too that as the son of an elected official representing Congress, others may impute a pro-Congress political opinion on the applicant, again, notwithstanding has never been a member of Congress. The applicant’s evidence though is no harm has ever come to his father in the past, albeit his father is politically active and an elected official. The Tribunal notes, as a supporter of Congress, the applicant supports an opposition party both in his home state and nationally. The DFAT report notes elections in India tend to be peaceful (with some noted exceptions). It gives examples of high profile opponents of past ruling governments being targeted for harm. Given the applicant has not demonstrated in the past any significant political profile or has claimed he would be a high political profile in the future, the Tribunal considers there to be only a remote or speculative chance the applicant will face serious harm from opponents to the Congress party because of an actual or imputed political opinion of support for Congress or because he is a member of the particular social group of his father’s family if the applicant returns to India.
The applicant claimed the relatives of his ex-wife could use their political power against him and his family because they are supporters of Congress. The Tribunal rejected above that the relatives of the ex-wife have any political power. It follows that the Tribunal finds there is no real chance the applicant will be harmed by the relatives of his ex-wife because of an actual or imputed political opinion for support of Congress or because he is a member of the particular social group of his father’s family if the applicant returns to India
The Tribunal has considered the claims of the applicant individually and cumulatively. For the above reasons, the is not satisfied the applicant faces a real chance of serious harm by Sikhs generally, the relatives or boyfriend of his ex-wife, Babbar Khalsa or opponents of Congress now or in the reasonably foreseeable future because he is a Sikh who divorced his ex-wife, because of any actual or implied pro-Congress political opinion or membership of the particular social group of his father’s family. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason or combination of reasons, now or in the reasonably foreseeable future if he returns to India. Therefore he does not satisfy the requirements of s.36(2)(a).
The Tribunal considers his claims further below in relation to complimentary protection.
Real risk of significant harm
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.
The Tribunal found above that the applicant did not have a subjective fear of being harmed in an honour killing because he divorced his e-wife against his Sikh religion and therefore, did not have a well-founded fear of persecution from the relatives of his ex-wife or the Sikh community generally. The Tribunal accepts a honour killing would be arbitrary deprivation of his life and an attempted honour killing would cause intentional severe physical pain and suffering therefore meets the requirements of cruel or inhuman treatment and punishment for the purpose of s.5(1). The Tribunal referred above to country information regarding the status of divorce in the Sikh religion. The evidence of the applicant does not suggest he has suffered any threats of honour killing from the Sikh community in general and he has not provided any country information to suggest honour killings occur against Sikhs who divorce. The Tribunal considers there to be only a remote or speculative chance and therefore not a real risk the applicant will suffer significant harm or an honour killing from the Sikh community generally because he divorced his ex-wife if he was removed to India.
In relation to the balance of the applicant’s claims, including the threat of harm from the relatives of his ex-wife, her boyfriend and opponents of the Congress party, the Tribunal found above the applicant did not have a well-founded fear of persecution on any ground as he does not face a real chance of serious harm in relation to any of his claims. Given the real chance test for well-founded fear of persecution imposes the same standard as the real risk test of significant harm, for the same reasons set out above, the Tribunal is not satisfied the applicant faces a real risk of significant harm.
The Tribunal therefore considers there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the named applicant does not meet the requirements of s.36(2)(aa).
CONCLUSIONS
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Fraser Syme
Member

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Citations

1412389 (Refugee) [2015] AATA 3160

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

Plaintiff M196 of 2015 v Minister for Immigration and Border Protection [2015] HCATrans 240

MIMA v Rajalingam [1999] FCA 179