1412523 (Refugee)

[2016] AATA 3113

1412523 (Refugee) [2016] AATA 3113 (18 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412523

COUNTRY OF REFERENCE:                  India

MEMBER:Sophia Panagiotidis

DATE:18 January 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 18 January 2016 at 3:01pm

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

1. 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 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of India, applied for the visas [in] August 2013 and the delegate refused to grant the visas [in] July 2014.

3. The applicants appeared before the Tribunal on 12 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   RELEVANT LAW

4. 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.

   Refugee criterion

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

6. 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.

7. 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.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

    Particular social group

15. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

16. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

    Relocation

17. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State Protection

18. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Complementary protection criterion

19. 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’).

20. ‘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.

21. 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.

    Relocation

22. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that 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. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

23. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Section 499 Ministerial Direction

24. 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

25. 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 of the same class as that applied for by the applicant. 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 spouses and children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds.

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

    The applicants’ claims

28. The applicants’ claims can be summarised as follows:

    (i)The applicants married without their respective families’ permission [in] 2011.

    (ii)The applicants are Sikh and the second named applicant’s family objected to the marriage because they are from the same village/gotra.

    (iii)They fear harm from all members of the second named applicant's family; and if they return to India, her family will take steps to separate them or to kill the first named applicant.

    (iv)The second named applicant's [relative] is a former police officer and a former panchayat leader and [a second relative] is currently a nambardar (village leader). [A third relative] is a former police officer.

    (v)During his trips to India from [October] 2012 and [February] 2013, the first named applicant and his brother were attacked by members of his wife’s family at a temple in[City 1]. There was also a separate attack by members of his wife’s family [in] January 2013. Her family registered a false case against him with the police in 2013.

    (vi)The first named applicant has tried to claim protection for himself and his wife with the Punjab State Human Rights Commission and the Punjab Police.

    (vii)They are unable to relocate to another part of India as the first named applicant will be too stressed to work and his wife’s family may track him down if he uses social media.

    The delegate’s decision

29. The delegate has essentially accepted that the applicants were members of a particular social group being a couple from the northern Indian states of Punjab, Haryana and Uttar Pradesh who have engaged in same gotra marriage and a love marriage. The delegate was also satisfied that the harm feared by the applicants is serious harm and systematic and discriminatory conduct and that the harm feared amounts to persecution. The delegate also found that the applicants have a well-founded fear of persecution in [City 1] because they are parties to a same gotra love marriage. The delegate however was not satisfied that the applicants could not relocate to another part of India.

    Independent country information

    Marriage practices in Sikh communities

30. The following information concerns marriage practices in Sikh communities and same-gotra, same-village marriage.

31. In 2015 the Department of Foreign Affairs and Trade (DFAT) India Country Report stated that arranged marriages continue to account for the overwhelming majority of marriages across India. Parent and/or significant family members are often solely responsible for making a decision about who children marry, particularly in north India. Many parents consider arranging a marriage for their children a right and a duty, and may not accept modern marriage practice such as a son or daughter choosing their own spouse. Although the divorce rate has increased in recent years, particularly among affluent middle classes, India has one of the lowest divorce rates in the world at an estimated one in 1,000 marriages[1].

    [1] DFAT Country Information Report, India, 15 July 2015

32. The issue of treatment of same-lineage, or same-gotra couples arises in sources addressing inter-caste marriage. This ‘lineage’ is based on mythical ancestors, and there is not necessarily a blood relationship between two people of the same gotra[2]. According to Human Rights Watch in 2011, khaps in Haryana, Punjab and Uttar Pradesh have censured same-gotra marriages, reasoning that they are incestuous due to an alleged biological connection through ancestors.[3] Khap panchayats in Haryana have publicly stated that the Hindu Marriage Act should be amended to ban same-gotra marriage:

    At Kurukshetra, the khap panchayats also demanded that the Hindu Marriages Act should be amended to ban ‘same village’ marriages and disallow the recognition given by the Arya Samaj to the weddings of “eloping couples” conducted in temples. True to form, they charged the media with “conspiring to destroy the social fabric in rural areas.”[4]

    [2] 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, August, pp.3-4  Accessed 26 June 2013 ; Human Rights Watch 2010, India: Prosecute Rampant ‘Honor’ Killings, 18 July Accessed 26 August 2010; Encyclopaedia Britannica Online n.d., gotra Accessed 2 April 2012; Chamberlain, G 2010, ‘Honour killings – saved from India’s caste system by the Love Commandos’, The Observer, 10 October ct/10/honour-killings-caste-love-commandos Accessed 1 December 2011

    [3] Human Rights Watch 2011, India – World Report, 31 January

    [4] ‘Honour killings’: what needs to be done’ 2010, The Hindu, 26 April Accessed 19 December 2011

1. Daily News and Analysis highlights what a disapproval of inter-gotra marriage might mean for young Haryana males:

   If you are an eligible jat bachelor living in a Haryana village, landing a suitable bride could be a nightmarish experience. As traditions go, you could not marry another woman from the same village because some time in remote history her ancestors and yours may have been siblings. You cannot hunt for brides in villages that border yours or even distant ones where other clans living in your village have bhaichara [brotherhood]. Break the rules and you are guilty of ‘incest’.[5]

   Honour killings (treatment by non-state actors)

   [5] Nair, M 2010, ‘Khap panchayats flex muscle as shifting social dynamics threaten their relevance’, News Day and Analysis, 18 April flex-muscle-as-shifting-socialdynamics-threaten-their-relevance_1372608 Accessed 11 August 2011

2. In 2015, DFAT stated that, “So-called honour killings” committed by the families and communities of those involved in inter-faith and inter-caste relationships, are particularly prevalent in villages and small towns in north India. It is estimated that at least 1,000 honour killings take place each year in India.”[6]

   [6] DFAT Country Information Report, India, 15 July 2015, p. 13

3. The US Department of State (USDOS) reported that in 2013, Punjab had one of the highest rates of so-called honour killings in India[7]. It is not clear as to what proportion of these killings occur within Punjab’s Sikh population; however an Indian Law Commission study attributes many of these honour killings to ‘[m]arriages with members of other castes’[8]. In one study of 560 honour killings in Haryana, Punjab and western Uttar Pradesh by Shakti Vahini[9], 83 per cent were related to inter-caste marriage[10].

   [7] US Department of State 2013, Country Reports on Human Rights Practices 2012 – India, 1 April, Section 6  OG0DB543879

   [8] 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, August, p.3 Accessed 6 August 2014 CIS27209

   [9] Shakti Vahini, a New-Delhi based NGO that advocates against honour crimes and human trafficking

   [10] Immigration and Refugee Board of Canada 2013, India: Honour crimes, including their prevalence in both rural and urban areas; government protection and services offered to victims of honour crimes (2009-April 2013), 9 May, IND104370.E, Refworld Accessed 18 June 2013 CX309546

4. USDOS also noted in 2014 that, up to ten percent of all killings in Punjab and Haryana were honour killings, some of which were sanctioned by village councils or khap panchayats:

   So-called honor killings continued to be a problem, especially in Punjab, Uttar Pradesh, and Haryana, where as many as 10 percent of all killings were honor killings. These states also had low female birth ratios due to gender-selective abortions. In some cases the killings resulted from extrajudicial decisions by traditional community elders, such as “khap panchayats,” unelected caste-based village assemblies that have no legal authority. Statistics for honor killings were difficult to verify, since many killings were unreported or passed off as suicide or natural deaths by family members. NGOs estimated that at least 900 such killings occurred annually in Haryana, Punjab, and Uttar Pradesh alone. The most common justification for the killings offered by those accused or by their relatives was that the victim married against her family’s wishes. For example, in January the parents of a 21-year-old woman in Sangrur District, Punjab, killed their daughter because she intended to marry a man of her choice.[11]

   State protection

   [11] US Department of State 2014, Country Reports on Human Rights Practices 2013 – India, 27 February, Section 6 Women: Harmful Traditional Practices OG1F18C9077

5. Indian law which could provide protection against religiously oriented violence such as ‘honour killings’ is not always effectively enforced by police. In 2010 USDOS reported that “due to a lack of sufficiently trained police and elements of corruption, the law was not always enforced rigorously or effectively in some cases pertaining to religiously oriented violence”.[12]

   [12] US Department of State 2011, International Religious Freedom Report for 2010 (July-December) – India, 13 September, Section II

6. The 2008 UK Home Office Operational Guidance Note – India explained that the governments of India’s 28 states and seven union territories have primary responsibility for maintaining law and order, with the central government providing guidance and support. Some members of the security forces have reportedly committed human rights abuses, and corruption in the police force exists at all levels. The note states that police have acted with relative impunity, and are rarely held accountable for illegal actions[13].

   [13] UK Home Office 2008, Operational Guidance Note – India, April, p.8

7. Human Rights Watch has alleged in the past that “[p]olice routinely fail to investigate apparent “honor” killings”[14]. A 2011 source stated that Punjab police had been unable to find a solution to an apparent ‘surge’ in the number of honour killings[15].

   [14] Human Rights Watch 2010, India: Prosecute Rampant ‘Honor’ Killings, 18 July Accessed 26 August 2010

   [15] ‘Spate of honour killings shakes up Punjab’ 2011, Indo-Asian News Service, 14 July

8. Human Rights Watch also reported in 2010 that there had been an increase in honour killings in the northern Indian states of Haryana, Punjab, and western Uttar Pradesh. There were also cases reported from the National Capital Territory of Delhi. Human Rights Watch states that these incidences of honour killings involved khap panchayat edicts issued against inter-religious and inter-caste couples. According to the report, “some local politicians and officials have been sympathetic to the councils’ edicts, implicitly supporting the violence”[16].

   [16] Human Rights Watch 2010, India: Prosecute Rampant ‘Honor’ Killings, 18 July Accessed 26 August 2010 CX744258516864

9. According to the Middle East Quarterly 2012 article referred to above, khap panchayats exist in regions where honour killings are prevalent. In these areas local politicians reportedly ‘turn a blind eye’ to honour killings:

   In 2010, a government- funded study on the prevalence of honor crimes in India found that they are most common in regions dominated by khap panchayats and increasingly involve inter-caste, rather than intra-sub-caste marriages. In these regions, local politicians turn a blind eye to the murders and resist efforts by the central government and parliament to deal with the problem while local police collude in honor killings or help cover them up, often mischaracterizing the murders as suicides. In 2011, theatres in Haryana refused to screen an Indian film on honor killings because of threats by khap panchayats.[17]

   Relocation

   [17] Chesler, P & Bloom, N 2012, ‘Hindu vs. Muslim Honor Killings’, Middle East Quarterly, Summer, p.50 Accessed 29 August 2014 CIS29761

10. According to its most recent 2011 census, India's population was approximately 1.21 billion[18] in some 27 million towns and settlement, and the largest 8 cities have between 4 and 12 million people in each[19].

    [18] DFAT Country Information Report, India, 2015, p. 4.

    [19] Accessed 20 August 2015

11. In 2013, USDOS stated that Indian law provides for freedom of movement within the country, and the government generally respects this in practice. In late 2010, the government repealed the requirement for nationals to apply for special permits to travel to Manipur, Mizoram and Nagaland. Such permits, however, are still required to travel to Jammu and Kashmir[20].

    [20] US Department of State 2013, Country Reports on Human Rights Practices for 2012 – India, 19 April, Section II

12. In 2010, the UK Home Office stated that there are no checks by authorities on newcomers arriving from another part of India; local police “have neither the resources nor the language abilities to undertake background checks on individuals relocating within India”. Furthermore, there is no registration system for citizens.[21] The 2008 UK Home Operational Guidance Note – India advised that internal relocation was feasible where an applicant’s fear was of local police and where a person is not of interest to the central authorities[22].

    [21] UK Home Office 2010, Country of Origin Information Report – India, 21 September, p.95

    [22] UK Home Office 2008, Operational Guidance Note – India, April, p.6

13. In 2015, the UK Home Office quoted Country Guidance to the Upper Tribunal, which stated that “the possibility of the police, or any other person or body, being able to locate, at the behest of an individual’s family, a person who has fled to another state or union in India to be remote”[23].

    [23] UK Home Office, "Country Information and Guidance: India: Background information, including actors of protection, and internal relocation", 6 February 2015, p 5.

14. Hindi, one of the two official languages, the other being English, is the majority language in India spoken by 41 per cent[24]. Hindi is spoken by a majority in eight northern states[25]. According to the Encyclopaedia Britannica Online, Hindi is spoken as a first language by approximately 425 million people across India, and as a second language by an additional 120 million[26]. Although only a relatively small number speak English as their first language, an estimated 125 million people speak English as either a first, second or third language.

    [24] DFAT Country Information Report, India, 2015, p. 4

    [25] University of Illinois at Urbana-Champaign – Linguistics Department (n.d.), a Brief Profile of the Hindi Language

    [26] Encyclopaedia Britannica Online (n.d.), Hindi language

15. The Times of India reported on 23 June 2013 that overall Indian unemployment rate was 3 per cent. In 2015, the World Bank reported that the Indian economy grew 7.4 per cent in 2014 and is likely to grow at 6.4 per cent in 2015[27].

    [27] Accessed 21 August 201

16. In 2015, DFAT reported that in practice, internal location can be limited by a range of factors, but that despite some difficulties millions of Indians successfully relocate within India either temporarily or permanently every year … In general, DFAT assesses that there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence[28].

    Mental Health services

    [28] DFAT Country Information Report, India, 2015, p. 22

17. Country information indicates there are limited public mental health services available in India. USDOS reports that public infrastructure catering for mental health in India is not sufficiently resourced:

    The MHFW[29] estimated that 6 to 7 percent of the population suffered from a mental or psychosocial disability and that 25 percent of the mentally ill were homeless. Disabled rights activists estimated that the country had 40 to 90 million persons with disabilities.
    

    [29] Ministry of Health and Family Welfare

    [30] US Department of State 2012, Country Reports on Human Rights Practices 2011 – India, 24 May, Section 6

    Most of those with mental disabilities were dependent on public health-care facilities and fewer than half of those who required treatment or community support services received such assistance. There was a severe shortage of trained staff; a WHO [World Health Organisation] report released in September 2010 estimated that the country had less than one psychiatrist for every 300,000 persons, and most psychiatrists worked in urban areas. In rural areas the ratio shrank to less than one psychiatrist per one million persons. Continued lack of awareness about mental disability led many patients, particularly in rural areas, to seek assistance from traditional healers before seeking regular medical treatment.[30]

18. The UK Home Office provides the following information on access to mental health care:

    Government funding for mental health services were offered both by the states and the centre. Services offered at Government health centres were free. In the 10th Five Year Plan estimates, mental health constituted 2.05% of the total plan outlay for health. The country had disability benefits for persons with mental disorders. Details about disability benefits for mental health were not available. Disability benefits had become available recently and in a limited way.

    As noted in the World Health Organization (WHO) Project Atlas Country Profile for India, 2005, Mental health care in primary care was available in 22 districts out of about 600 districts. It would be extended to over 100 districts in the next few years. Regular training of primary care professionals in the field of mental health was present. Community care facilities in mental health were present. Mental health facilities in community care were available in some designated districts. In addition, various non-governmental organisations supplied different types of services ranging from telephone hotlines to residential rehabilitative services.[31]

    [31] UK Home Office 2012, Operational Guidance Note – India, June, p.24 Accessed 27 June 2012

19. In March 2011, The Hindu suggested that 0.075 per cent of persons with a severe mental illness in India are in long-stay institutions, whilst the remainder are in the community being assisted through family-based care.[32] 

    [32] Dhar, A 2011, ‘National consultation on new mental health bill today’, The Hindu, 21 March Accessed 3 September 2012

20. The main avenue of public mental health care currently open to Indian citizens is the District Mental Health Programme (DMHP), which was launched in 1997.[33] The DMHP aims to identify individuals suffering from mental health issues and refer them for appropriate treatment.[34]

    [33] Kakuma, R et al 2011, ‘Human resources for mental health care: current situation and strategies for action’, The Lancet, vol. 378, no. 9803, 5 November, World Health Organisation, p.1658 Accessed 19 February 2013

    [34] Shenoy, J 2013, ‘District mental health programme for all districts in Karnataka’, The Times of India, 5 January Accessed 20 February 2013

21. Regarding accessibility, a 2008 draft DMHP implementation manual, produced by the National Institute of Mental Health and Neuro-Sciences states that anybody with a mental health issue “can avail this service from their nearby Government hospital on any working [sic] from Monday to Saturday. All patients diagnosed with one or the other mental health problems will be dispensed free drugs at the hospital pharmacy for a period of one month”.[35] According to a January 2013 article in The Hindu, a consulting firm conducted an evaluation of the DMHP which found that “satisfaction with the quality of services is an average of 7.3 on a scale of up to 10”. Satisfaction with DMHP services in Delhi rated higher than average in this evaluation.[36]

    [35] National Institute of Mental Health and Neuro Sciences 2008, Information Education and Communication Manual for DMHP, First Draft, n.p. Accessed 20 February 2013

    [36] ‘Madurai provides best mental health care’ 2013, The Hindu, 14 January Accessed 20 February 2013

22. A 2011 article published in The Lancet[37] notes that whilst national government funding for mental health has risen substantially over the preceding decade, state governments have not invested significantly in mental health and shortcomings remain in terms of the DMHP’s coverage.[38]

    [37] The Lancet “publishes medical news, original research, and reviews on all aspects of clinical medicine and International Health” (

    [38] Kakuma, R et al 2011, ‘Human resources for mental health care: current situation and strategies for action’, The Lancet, vol. 378, no. 9803, 5 November, World Health Organisation, pp.1658-1659 Accessed 19 February 2013

    Country of reference

23. The applicants claim to be citizens of India and based on the copies of passports and identity documents provided to the Department, the Tribunal finds that India is the country of nationality for the purposes of the Convention and also their receiving country for the purposes of s.5 and s.36(2)(aa) of the Act.

    Assessment of claims

24. The applicants presented and gave evidence in a broadly consistent manner about their relationship and their circumstances before they came to Australia and currently. Their evidence is also consistent with the country information set out earlier that indicates that severe problems may occur in relation to contravention of traditional Sikh marriage practices such as independent choice of marriage partner and same gotra marriage. The Tribunal accepts that their evidence was consistent with the independent country information regarding the high rate of punitive behaviour including ‘honour killings’ often perpetrated by family members in response to perceived shame arising from the contravention of Sikh marriage practices.

25. The Tribunal is satisfied on the applicants’ evidence that they are from the same village in Punjab and have known each other since childhood. They are both [Sikh] and are from the same gotra or village which means that according to Sikh custom their relationship is viewed as consanguineous, that is they are of the same blood or origin and considered to be closely related. Any relationship between the two applicants is considered to be incestuous like and prohibited. The Tribunal also accepts the applicants’ evidence that the second named applicant's family have been angered, humiliated and shamed by this relationship and have attempted to harm the first named applicant. The first named applicant's family was initially disapproving but have accepted the relationship.

26. On the evidence before it, the Tribunal finds that the applicants fear harm because of their same gotra marriage and because of this they claim to be members of a particular social group of people in same gotra marriages in India. Having regard to the test applied in Applicant A and in Applicant S’s case referred to earlier, the Tribunal finds that people in same gotra marriages comprise a particular social group in India.

27. Based on the evidence given by the applicants which the Tribunal accepts the second named applicant left her home without telling her family of her intention to marry the first named applicant. The Tribunal accepts that her family intended her to marry someone else and the applicant returned to India in order to plan the wedding arrangements between him and the second named applicant. The Tribunal also accepts that the applicants were married [in] 2011 without their respective families’ permission or knowledge. The Tribunal accepts they applied to the Human Rights Commission in Punjab for protection. The second named applicant returned to her home awaiting an order by the Commission, however her parents found out about her marriage to the first named applicant when police attended the house and notified her family of the marriage. The Tribunal accepts that all parties, including the applicants’ respective families were summoned to the police station in an attempt to achieve an agreement to the marriage. The Tribunal accepts that the first named applicant then took the second named applicant to stay with members of his family in [City 2].

1. The Tribunal accepts the first named applicant's evidence that in 2013 while visiting his parents, he was attacked by members of his wife’s family at a Sikh temple when they realised who he was. He had been present in the village for about two days and his wife’s family members must have heard about it or he was seen. The Tribunal also accepts that his brother was attacked in a mistaken belief he was the first named applicant. The Tribunal accepts that the first named applicant reported this incident to the police. The applicant submitted a translated copy of a Common (Panchayat) Compromise dated [January] 2013 in order to demonstrate that the police attempted to achieve a compromise between the families. This Compromise reports that members of the second named applicant's family who attended that meeting signed this undertaking. The applicant told the Tribunal that this compromise was initiated by the police and the Tribunal accepts this evidence but he believes the signatories were pressured by the police to sign this document. The first named applicant told the Tribunal that his wife’s [relative] has filed a complaint against him, however the details of this complaint were not clear apart from the allegation that the first named applicant had harassed his daughter.

2. The first named applicant told the Tribunal that his family now accepts his marriage to the second named applicant, especially now they have had their [child] and they are safe in Australia. He told the Tribunal that they will not contact the applicant if he was living in India because they would be too afraid that someone will find out.

3. The second named applicant told the Tribunal that her family have not accepted the marriage and she has not spoken to them directly since the police came to her home and they found out about her marriage in 2011. She is afraid that if they return to India her family will kill her husband. She also believes that her family want to kill her because of her marriage to the first named applicant. She told the Tribunal that her [relative] is ill as he has had a [medical condition] because of the stress her marriage has caused to the family. Her other [relative] [has a medical condition] also brought on by the stress of this situation. They were informed about these incidents by her father in law as they occasionally speak to him. She said that since the attack on her brother in law, her parents in law will not help them because of the danger. She confirmed that she lived with her husband’s relatives in [City 2] after they were married and while she was waiting to come to Australia. They accepted her because it was a temporary stay and they thought she would leave quickly. She believes they will not help her or her husband again since her brother in law was attacked.

4. The Tribunal discussed relocation with the applicants. The response was that they do not believe they will be safe anywhere in India because of the way they breached their traditions and their community believes they are in an incestuous relationship. Many in the Sikh community want this type of marriage to be banned by law and there have been many protests and delegations to the State’s Chief Minister on this issue. There has been media coverage across India and many people are aware of this issue. They submitted that their marriage certificate is proof they are in a same gotra marriage as this confirms they are from the same village. This information is also contained on other identity documents so people would be immediately aware that they are in a same gotra marriage and they may be denied rental accommodation and employment because of this. If Sikh people anywhere in India find this out they will be kicked out of any Sikh temple or they will try to separate them or harass them or throw stones at them. They do not want any more problems or drama. The first named applicant's father is no longer able to help him as he will get into trouble if this is found out by others in his village. His brother is going to get married soon and his future wife’s family is not on side. If he and his family return to India they will have no social or family support. They will be unable to live openly in India. Even in Australia, other Sikhs believe he and his wife have done the wrong thing and his parents’ friends are opposed to his marriage.

5. The first named applicant said that his wife’s family have a member of parliament in the family and some are former police officers. If they returned to India, her family will go to the trouble of finding them and cause trouble because they have ruined his wife’s family. He does not believe the police will be able to protect him and his family because he will have to pay bribes. His wife’s family is wealthy and well-connected politically. They will therefore be able to find them if they return to India. There have been many cases in India where families have eventually found couples who have married against their families’ wishes, even after years and they have been harmed.

6. The first named applicant told the Tribunal he has not been coping because of his fear of returning to India and has sought psychological help. He has been suffering from anxiety attacks and he had to go to hospital. His local doctor referred him to a psychologist because of his anxiety. He also returned to India in 2013 for treatment of his anxiety and stayed in [City 2]. He has completed a [course] and[another course]. He could not cope with [working] as he was too stressed and has been[doing other work]. The applicant has provided confirmation by his treating general practitioner that he has been suffering from anxiety and depression since November 2013 and has been receiving psychotherapy from a clinical psychologist since then through a mental health care plan.

7. Given the second named applicant's family’s response to her marital situation and considering the independent country information concerning the situation of young people who act counter to Sikh marriage practices, the Tribunal accepts that the applicants are at risk of family ostracism and the first named applicant has experienced harm in the past due to their marriage. Having regard to the non-exhaustive examples of serious harm in s.91R of the Act and the definition of significant harm in s.5 and s.36(2) of the Act, the Tribunal finds and accepts this amounts to serious harm for the purpose of s.91R(1) of the Act. Given the threats by the second named applicant's family and the attempts to harm the first named applicant in the past and considering independent country information concerning reports of violence and honour crimes involving same gotra/same village couples, the Tribunal finds that the applicants face a real chance of persecution at the hands of the second named applicant’s family in the reasonably foreseeable future in their home area of Punjab on account of a particular social groups consisting of members of inter-gotra/intra village marriage in Punjab.

   State protection

8. The independent country information set out earlier indicates the law may not be enforced rigorously or effectively in some cases related to religiously oriented violence due to high levels of corruption, inefficiency and in some cases collusion and sympathy to uphold traditional Sikh values with violence. The applicants have provided a copy of an order made by the Punjab State Human Rights Commission on 9 January 2012 in which the senior superintendent of police is called on to provide protection to the complainants, the first and second named applicants in accordance with the law and also states “it is the primary duty of the State to protect their lives and liberty”[39]. Annexures[40] to this document dated 4 January 2012 shows a complaint made by the applicants and an affidavit in support of the complaint made by them. The Senior Superintendent of Police in [City 1] and the police in the district of [City 1] as well as members of the second named applicant's family are cited as respondents and the Commission indicates that the police failed to act in relation to threats received and directs the first named respondent, the Senior Superintendent of the Police to protect the “life and liberty” of the complainants “at the hands of the respondent” which includes the district police at[City 1]. The Tribunal notes that after this order was made, the first named applicant was attacked when he returned to India in 2013.

   [39] At folio 74 of the Department’s file

   [40] At folios 73 and 65 of the Department’s file

9. The Tribunal notes that these documents issued by the Punjab Human Rights Commission verify the legality of the applicants’ marriage.

10. Considering this information, and the circumstances of the applicants’ marriage, the Tribunal finds that the applicants would not be able to access a level of state protection in Punjab in accordance with the principles of MIMA v Respondents S152/2003. In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’[41]; Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it ‘posits a reasonable level of protection, not a perfect one’[42]. The Tribunal has also noted the distinction drawn by Kirby J in MIMA v Khawar,[43] between those countries that, however imperfectly, provide agencies of the law and non-discriminatory legal rules to address the problem of domestic violence from those countries that, for supposed religious, cultural, political or other reasons, consciously withdraw the protection of the law from a particularly vulnerable group within their society. Having regard to the very significant number of ‘honour killings’ still occurring in India for reason of mixed or inter-caste marriage and same–gotra marriage, the Tribunal finds that the protection available to the applicants cannot be considered consistent with ‘international standards’[44]. The Tribunal accepts that the applicants have already attempted to seek protection but this was denied them despite an order by the Punjab Human Rights Commission. On the evidence before it, the Tribunal finds that state protection would not be available to the applicants in Punjab.

    Relocation

    [41] (2004) 222 CLR 1 at [26]

    [42] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117]

    [43] (2002) 2010 CLR1

    [44] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27]-[29]

11. In light of the above finding that there is a real chance the applicants would be seriously harmed by the second named applicant's family if they returned to Punjab, the Tribunal has gone on to consider whether the harm faced by them is localised or whether they could relocate within India to avoid it.

12. The Tribunal accepts that relocating to a city with large Sikh populations may be problematic for the applicants, however there are many large cities where the applicants could live where Sikh communities are not large.

13. It was put to the applicants at the hearing that India is a vast and very populous nation, and that country information does not support that the applicants’ families or any else would be able to find them in the rest of India especially given information about the lack of central registries and the difficulties that even the police have in tracking down individuals (as referred to in the country information set out above).

14. The Tribunal accepts that the second named applicant’s family has connections in state politics and has family members who were former policemen who may try to use their links to find the applicants. However, the independent country information set out above indicates that India has a massive population and enormous cities. There is no national registration system for Indians and information sharing between police forces is very limited. Even taking into account that the applicant’s family have reportedly local political and police connections, and they could use bribery to obtain assistance, the country information concerning the lack of central registries and difficulties police have in tracking down individuals across the nation indicates that the chance or risk they would be able to locate the applicants is remote. The applicants have not claimed that they have any problems on account of their castes or religions, other than because of their marriage. Given the totality of the independent country information and considering their individual circumstances, the Tribunal finds that the harm feared by the applicants is localised to Punjab where the second named applicant's family resides but that the applicants could relocate to other Indian states where there is no appreciable risk of the occurrence of the feared persecution. There are a number of factors (put to the applicants for comment at the hearing) that strongly indicate that it would be reasonable for the applicants to relocate to another state of India to avoid any localised risk of serious harm and significant harm in Punjab.

15. At the hearing, the applicant said that the Sikh community would be suspicious of them in another location, particularly as they are from the same village and they may be ostracised, harassed, discriminated against or physically harmed. The Tribunal considered these comments but notes that millions of Indians successfully relocate within India every year and that there are no legislative or other obligations to provide anyone details of their sub-caste or village background.

16. Country information indicates that huge numbers of people have moved from rural areas to large metropolitan centres in India and social relationships have changed as a result.

17. While the Tribunal accepts that khap panchayats still wield some influence in rural and village life, it does not accept that they have such influence in India’s cities. On the evidence before it the Tribunal finds that there is not a real chance the applicants would be harmed by a khap panchayat in a large metropolitan centre in India.

18. The second named applicant has given evidence that she does not remain in touch with her family and has not done so since her marriage in 2011. The first named applicant has given evidence that his family has accepted their relationship but would not actively help them if they were to return to India. The Tribunal has accepted the situation with the applicants’ families as stated. The Tribunal finds that if would be reasonable for them to return to India but not disclose this to the second named applicant's family. If the second named applicant's family were unaware that she and her family have returned to India given the length of time since there has been any contact with them, there would be no reason for her family to contemplate searching for them. Irrespective of the second named applicant's family’s wealth or influence, if they were not aware that the applicants had returned to India the chance that they would seek to find them is remote.

19. In light of the independent country information regarding relocation and the applicants’ claims they would have to provide documents in relation to their identity for prospective rental accommodation and employment, the Tribunal considers the applicants do not have any obligation to provide details of their sub-caste or background to anyone other than in a limited way and the Tribunal does not consider there is a real chance that their same-gotra/same village marital status will become known in the relocated community. For example if the applicants were to rent a property or apply for employment to a non-Sikh, the issue of the same-gotra marriage does not necessarily become an issue. The Tribunal finds on the evidence before it that the applicants would be able to provide relevant and acceptable documentation to find employment and accommodation if they returned to India and moved to a location outside the state of Punjab and could do so without the second named applicant's family being contacted or their local authorities to provide references or support.

20. The Tribunal finds on the evidence before it that the harm faced by the applicants is localised to their home state of Punjab. On the evidence before it the Tribunal does not accept that in a country the size of India with a population in excess of 1.25 billion[45] that if the applicants moved to a location outside Punjab without disclosing to the second named applicant's family their departure from Australia, return to India or their whereabouts in India, there would be a real chance they would be located now or in the reasonably foreseeable future. It follows that the Tribunal finds there is not a real chance that the applicants would be seriously harmed because of their marriage to each other or for any other reason if they relocated to an area in India outside the state of Punjab.

    [45] India population, 2015 Accessed 20 February 2015

21. At the hearing, both applicants said that relocation would be very difficult for them because they have no family support in India and limited financial resources. The first named applicant has been in Australia since 2009 having returned to India on a number of occasions. The second named applicant arrived in 2013 and their [child] was born in Australia. They both submitted that it will be difficult to start a new life and find work and raise their child. The Tribunal has taken into account that in relocating they would not have family support and that their present financial situation is limited but it does not accept they would not be able to quickly find work and support themselves and their child given a range of factors discussed below.

22. The first named applicant is fluent in English, Punjabi and Hindi, the second named applicant is fluent in Punjabi and has limited Hindi and English. Hindi is understood by around 40% of the Indian population and a majority in eight northern states and English is recognised as an “associate” official language to Hindi, and is used predominantly by educated and professional groups, media, and in administrative contexts.

23. The applicants are Sikhs and independent country information indicates that Sikhs are present throughout the country and are able to practise their religion without restriction and that they have indiscriminate access to employment.

24. The country information set out above indicates that unemployment is low in India and the country is experiencing substantial economic growth. The first named applicant has Australian [qualifications] and has employment experience in Australia in those roles as well as in[other work]. They are both young and have been able to adapt to life living in a foreign country together. The Tribunal finds on the evidence before it that the applicants would be able to work and accumulate sufficient money not only to subsist but also to meet the costs associated with relocation.

25. Considering all of the individual circumstances, and the country information the Tribunal finds that it would be reasonable for the applicants to relocate to another state in India to avoid the real chance of serious harm that the applicants face in their home state of Punjab.

26. The Tribunal finds that there is not a real chance the applicants would be found by the second named applicant's family or seriously harmed for this or any other reason if they moved to a location outside the state of Punjab. The Tribunal finds on the evidence before it that in all the circumstances it would be reasonable, in the sense of practicable, for the applicants to relocate to an area in India outside the state of Punjab.

27. As the Tribunal has found that the applicants would not face a real chance of serious harm if they relocated to a state in India away from Punjab and that it would be reasonable for them to do so, the Tribunal finds that the applicants’ fear of persecution is not well-founded.

1. The Tribunal has also considered the complementary protection provisions and the forms of harm amounting to significant harm defined at s.36(2A) and s.5(1) of the Act. On the evidence before it, the Tribunal does not accept there is a real risk the applicants would be subjected to torture as envisaged by s.5(1). However the Tribunal has found earlier that there is a real chance the applicants would be seriously harmed by the second named applicant’s family if they returned to their home state of Punjab but that the harm the applicants face is localised to Punjab and that it would be reasonable for them to relocate to avoid it. For the same reasons as set out above, the Tribunal is satisfied that there is a real risk the applicants would suffer significant harm, in the form of cruel or inhuman treatment or punishment or degrading treatment or punishment or at worst, arbitrary deprivation of life at the hands of the second named applicant's family’s member, as a necessary and foreseeable consequence of their removal from Australia to their home in the Punjab. Also for the same reasons set out earlier, the Tribunal is satisfied that it would be reasonable in all the circumstances for the applicants to relocate to an area of India where there would not be a real risk that they would suffer significant harm.

2. In light of the finding that it would be reasonable for the applicants to relocate to an area where there is not a real risk that they will suffer significant harm, the Tribunal finds also that pursuant to s.36(2B)(a), there is taken not to be a real risk that the applicants will suffer significant harm in India. It follows that the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of their removal from Australia to a receiving country there is a real risk the applicants will suffer significant harm.

   Other matters

3. The first named applicant has referred to not coping and being stressed due to his fear of returning to India and has provided evidence that he has been receiving treatment by way of psychotherapy from a clinical psychologist as well as being treated with medication. The Tribunal accepts the evidence provided in relation to his anxiety and depression and notes the letter from [the] applicant's treating psychologist that he has responded favourably to treatment and his condition is stable and he is continuing treatment as required. The Tribunal has considered whether first named applicant's anxiety and depression would deteriorate upon his return to India and considers that it would, and he will likely require support and treatment for this. The Tribunal has considered independent country information as to the availability of similar services in India and this indicates that services are available and accessible throughout India. The Tribunal notes that the applicant’s evidence that he had previously returned to India for treatment of his depression and anxiety.

   Conclusion

4. For the reasons given above the Tribunal is not satisfied that each 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 s.36(2)(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

5. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Sophia Panagiotidis
   Member