1414047 (Refugee)

[2016] AATA 3387

1414047 (Refugee) [2016] AATA 3387 (29 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414047

COUNTRY OF REFERENCE:                  India

MEMBER:Paul Windsor

DATE:29 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 29 February 2016 at 6:09pm

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] July 2014.

3. The applicant applied to the Tribunal for review of this decision by the Tribunal on 15 August 2014.

4. The applicant was invited to attend a hearing with the Tribunal scheduled for 6 October 2015.  On 5 October 2015 the Tribunal received a request from the applicant’s adviser indicating that the adviser had just been appointed and seeking that the hearing be postponed to enable the adviser to prepare the case and obtain further supporting documents, including a psychologist report.  The Tribunal agreed to this request and the hearing was rescheduled to 6 November 2015.

5. The applicant appeared before the Tribunal on 6 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [friend]. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.  [Name deleted] also attended as an observer/support person for the applicant.

   CRITERIA FOR A PROTECTION VISA  

7. 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.

8. 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).

9. 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.

10. 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’).

    Mandatory considerations

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant claims to be a citizen of India who was born in [Village 1] in the Amritsar district of Punjab state, on [date].  According to her Protection visa application[1] she is of Sikh ethnicity and religion and claims to speak English, Punjabi and Hindi.  She departed India legally [in] December 2008 and arrived in Australian on the same day, travelling on a student visa as the dependant spouse of her husband, [Mr A].

    [1] See folios 1-44 and 72 of Departmental file [number].

    Summary of claims from the Protection visa application

13. The applicant’s claims from her Protection visa application may be summarised as follows:

    ·She left India because her husband came to Australia to further his studies.

    ·In India she married without her parents’ consent.  She married someone who lived in the same street.  This is not allowed in India.

    ·Her mother was very shocked and did not want to see her face.  Her father-in-law threatened to kill her.  Her brothers were very insulted and one committed suicide due to her marriage.

    ·She fears that if she returns her father-in-law and her family will kill her because they don’t accept her marriage.  Her father-in-law hired some people to catch and kill her.  He said he wants to take revenge due to being insulted.  Her husband left her due to these threats and she does not know where he is.  A friend told her that one couple was killed by the villagers because they had a love marriage.  In India people are very cruel and don’t have any feelings toward people.  They treated her like she did a very big crime like murder.

    ·The Indian authorities like the police don’t help poor people.  Her father-in-law lodged an FIR (First Incident Report) against them and the police are looking for them.

    Summary of claims from the interview of [June] 2014 with the departmental delegate

14. The applicant attended an interview with the departmental delegate [in] June 2014.  The delegate’s decision record indicates that when the interview was nearly concluded, after a break provided so that the applicant could consider the information she had given, the applicant stated that she had forgotten to inform the delegate that, when she returned to India in 2010, her family had forced her to marry another man.  The applicant indicated that the ceremony took place in a temple and she was forced to take part after her brother threatened to kill her by giving her an electric shock.

15. The applicant claimed that she had forgotten about this event because she is suffering from depression.

16. The applicant claimed that she lived with her new in-laws for [number] days and then left and returned to Australia.  She claimed that her new in-laws will also kill her if she returns to India because of the shame she has caused by leaving her new husband.

    Evidence from the hearing of 6 November 2015

17. At the hearing on 6 November 2015 the applicant indicated that she was born in and grew up in [Village 1], a village in Amritsar district of Punjab state.  She said that she completed [number] years of schooling but did not work over the [number] year period from when she finished her schooling in [year] until she came to Australia in December 2008.  When queried by the Tribunal about this and what she did over this extended period, The applicant said she did not help her parents and that in the village ‘they don’t let you do anything’.

18. The applicant indicated that she had travelled to [Country 1] and [Country 2] with a ‘cousin brother’ and his wife.  When asked how she could afford this if she never worked and was living in the village, she said she compelled her ‘cousin brother’ and her now deceased brother to spend some money on her trip as she really wanted to see those countries.  Her Protection visa application indicates that she travelled from India to [Country 2] twice in 2007, entering and staying in [Country 1] for over [number] months from [November] 2007 until [May] 2008.

19. The Tribunal asked the applicant why she moved from [a suburb] in [City 1] to [Town 1] in regional [state].  She replied that she was not working and her husband said to her to look for work.  A friend told her they could get her work in [Town 1].  The Tribunal asked the applicant why her husband would want her to work in [Town 1], a long way from [City 1].  She said she and her husband had fights and he used to beat her a lot.  She tried to get work in [City 1] but because of her poor English she couldn’t.  He took her passport for a time and ‘they’ had to threaten him to get it back.    Her husband was not worried about her and only called her when he wanted money.  She used to meet him at a [venue] in [suburb] to give him cash money.  She variously commented that she loves her husband a lot but he does not want to be with her and she couldn’t stand the fighting everyday so she went to [Town 1], and that because of him she left her other husband as well and that he has just used her as she is not educated.

20. When asked why she visited India in January 2010 the applicant stated that her brother called and said her mother was seriously unwell so she went to see her mother.  No-one came to pick her up at Delhi airport so she caught a bus to Amritsar and went to her sister’s house.  Her sister said that because of you your brother has died, and it is a shameful thing for everyone.  She was told she could see her mother only on the condition that she got married.

21. She stayed with her sister.  All her family came to know that she was back in India and her uncles said they will get her married.  They took her passport.  She told her mother she was already married but her mother said we don’t accept this and told her she has to get married or they will kill her, or her mother will kill herself.  They did not accept the previous marriage and the new marriage was done at the temple so people would know she was married.  She was married at the temple about a month after she returned to India.  She could not go to the police or get a new passport because they did not let her outside the house.  While she stayed at her sister’s house and while her sister did not agree with the family’s actions, her sister could not help the applicant as ‘they’ had all her documents and her sister could not act in a way that would make life difficult for her (the sister) in the future.

22. After the applicant was married in the temple she went to her new husband’s house.  They did not know anything about her previous marriage.  She told her second husband that she wanted to go back to Australia and he arranged to get her passport back from her family.  When asked why he would do that the applicant said he thought he would be able to go with her but she took the cash money gifts from the wedding, got her tickets and returned to Australia by herself.  It was only later when he came to know that she was already married that he realised why she had run away.  When she told him she was already married and would not be coming back he scolded her saying that she had shamed his family and they don’t want to see her.  Now no-one speaks to her, except her sister with whom she still speaks once a week.

23. When she returned to Australia she did not tell her first husband what had happened but he came to know from people in the village.  Initially he did not say anything but then he forced her to work.  When she went to [Town 1] he changed his phone numbers and she could not contact him.

24. When questioned concerning how she could be married again when she was already legally married, the applicant said that when she ran away in 2008 only her sister knew that she had got married.  When asked whether her family wondered where she had gone and who with, and whether her sister would have told the family she came to Australia the applicant replied that she did what her husband told her.  When asked directly when her family found out she had been married said she told them when she returned to India.  When it was put to her that they must have known before then, once she had left India, she replied that if they did know they did not show her that they knew.

25. The applicant said her first marriage was a ‘court marriage’ and occurred in the town of [name], which is near Amritsar.  When asked who attended she said the boy, his father, her sister and the village head.  The Tribunal asked the applicant why her sister, the boy’s father and the village head would attend rather than try to stop it given she had said it was a shocking thing that greatly upset the family and was against the rules of society.  She replied that she threatened her sister that if she told anyone she would kill herself, and she thought her husband might have compelled his father in the same way.  She commented that the village heads are silly there and if bribed with a bottle of wine will sign anything.

26. The applicant said that her husband has remarried.  He wanted her to sign divorce papers but she never did.  When asked whether the village was shocked by his actions, the applicant replied that they were not bothered as everything is possible if you give money to get it done.  She added that everyone in the village knows he has permanent residence in Australia now and has got his wife here. 

27. When asked why she had not stated in her Protection visa application that she had been married a second time, the applicant said maybe it is because she is going through depression and she does not know what she is saying and sometimes she forgets things.

28. The Tribunal also took evidence from the applicant’s [witness]. The witness said she met the applicant almost 3-4 years ago at [location] [City 1] where she used to [details deleted].  The witness moved to [Town 1] and when she spoke with the applicant told her she could get her work in [Town 1].  The applicant lived with the witness in [Town 1] for a time.  The witness said the applicant’s husband kept asking the applicant to give him money.  He said it was for the visa. The witness commented that the applicant gave her husband money for a long time.

29. The applicant brought some documents to the hearing[2].  The adviser explained that the applicant had seen her general practitioner [in] October 2016 who had said she was suffering from depression and suggested she see a psychologist.  She had been referred to a psychologist but the psychologist needed more time to prepare a report.  The documents included a certificate from the temple concerning the applicant’s second marriage, two photographs of a marriage ceremony, a document regarding the second marriage of the applicant’s first husband, and copies of pathology test results.  The Tribunal asked the applicant’s adviser to have any untranslated documents translated and to provide a submission explaining the significance of the documents and medical reports.  Initially the applicant said that her second marriage was not registered but at the end of the hearing she said there is a registration certificate which she can provide if the Tribunal wants that.  The Tribunal asked that she obtain this.  The adviser was provided with two weeks to provide further documents/submissions.

    [2] See folios 42-62 of Tribunal file 1414047.

    Post-hearing submission

30. On 23 November 2015 the adviser sought a 48 hour extension to provide the submission as she had not yet received the psychologist’s report.  On 2 December 2015 the following material was received:

    ·A packet from [a photo business in] Amritsar, containing 10 photographs of a wedding ceremony involving the applicant and ‘her second husband, [Mr B]’[3].

    ·An original (unfilled) prescription for [medication], in the applicant’s name, written by           [a doctor] of [address], dated [in] November 2015[4].

    ·A death certificate (and English translation) for the applicant’s [brother], indicating that the date of death is [date][5].

    ·A certificate from [an official] (and English translation), dated [September] 2015, indicating that the marriage of [the applicant] and [Mr B] was solemnised on [a date in] March 2010 as per Sikh rites, performed by [an official][6].

    ·A Matriculation Examination certificate for [the applicant] of [a] School [Village 1] (Amritsar), issued by the Punjabi School Education Board, indicating that [the applicant] passed the Matriculation Examination held in [year] in the First Division (with Distinction).

    ·A Senior Secondary Certificate for [the applicant] of [another school], [(Amritsar)], issued by the Punjabi School Education Board, indicating that [the applicant] passed the Senior Secondary Certificate Examination Part-II held in [year], in the Second Division.[7]

    ·A Matriculation Examination certificate for [Mr B] of [a] School, [(Amritsar)], issued by the Punjabi School Education Board, indicating that [Mr B] passed the Matriculation Examination held in [year] in the Third Division[8].

    ·A Senior Secondary Certificate for [Mr B], issued by the Punjabi School Education Board, indicating that [Mr B] passed the Senior Secondary Examination, [in year], in the [subject area][9].

    ·A GP Mental Health Care Plan for [the applicant], prepared by [a doctor], dated [in] November 2015[10], indicating that [the applicant] presented with a long history of anxiety and depression, was diagnosed as suffering depression and anxiety, prescribed [medication], and referred to psychologist [Mr C] for ‘Counselling’ to provide her with ‘Better coping skills’ to achieve the goal of ‘Improved mood’.

    ·A letter from [Mr C], Psychologist, dated [in] November 2015[11], indicating that he had seen [the applicant] on [dates in] November 2015 and she had requested a psychology report outlining her circumstances and the impact of these events on her psychological health and on her present circumstances.  The report indicates that [Mr A] became aware of the applicant’s arranged marriage and ended their marriage in late 2010 and that [the applicant] attempted suicide by taking an overdose of medication in late 2010, following [Mr A] leaving the marital home.  In early 2011 [the applicant] relocated to [Town 1] and continued to experience verbal threats from her family in India and now from [Mr B], who had become aware of her first marriage.  [Mr C] indicates that the applicant stated the presence of recurrent suicidal ideation, without a specific plan, triggered by the prospect of an involuntary return to India, if her application for a Protection visa is refused by the AAT.  An assessment of her psychological state was undertaken utilising the Depression, Anxiety and Stress Scale (DASS-42) which indicated overall levels of depressive, anxiety and stress symptoms to be in the ‘Severe to Extremely Severe’ ranges.  At present she is not prescribed any psychotropic medication.  [Mr C] concluded that the applicant is experiencing a major depressive disorder at a severe level of intensity and noted that she is motivated to proceed with regular psychological consultations. He stated that ‘It is believed [the applicant’s] psychological health and level of functioning will continue to be significantly influenced by the outcome of her appeal to the AAT, and concerns regarding her physical safety, if she is to return to India for immigration purposes’.  He also commented that ‘It is believed that [the applicant’s] psychological health and level of functioning will deteriorate further if she is to involuntarily return to India’ and that ‘Due to a history of recurrent suicidal ideation, there is a heightened suicide risk if [the applicant] involuntarily returns to India, given her personal history and emotional vulnerability.

    [3] See folio 67 of Tribunal file 1414047.

    [4] Ibid

    [5] Ibid

    [6] Ibid

    [7] Ibid

    [8] Ibid.

    [9] Ibid.

    [10] See folios 68-69 of Tribunal file 1414047.

    [11] See folios 70-72 of Tribunal file 1414047.

    Findings and reasons

1. The issues in this review are whether there is a real chance that, if the applicant returns to India, she will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to India, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

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

   Delegate’s decision

3. The delegate of the Minister for Immigration and Border Protection considered that there was a lack of consistency in the applicant’s claims and in her evidence at the interview, and this caused the delegate to conclude that the applicant’s claims were not credible or genuine.

   Applicant’s identity

4. On the basis of the copy of the applicant’s Indian passport provided to the Department[12], the Tribunal accepts that the applicant is a citizen of India and that her identity is as she claims it to be.  The Tribunal accepts that India is the applicant’s country of nationality for convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.

   Applicant’s credibility

   [12] See folios 66-71 of Departmental file [number].

5. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicant. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

6. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

7. 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, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   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.

8. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at 39:

   First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

9. 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).

10. 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 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).

11. The Tribunal also notes that the applicant is presently receiving treatment for mental health concerns and that these concerns are longstanding.  The Tribunal has given careful consideration to this issue when considering the applicant’s circumstances and considering the credibility of the applicant’s claims. 

12. For the following reasons, the Tribunal considers that the applicant is not a witness of truth, and does not accept that the applicant is genuine in her claims to fear persecution from her family, her first husband’s family and her claimed second husband’s family.

13. Since the applicant lodged her Protection visa application [in] April 2014 she has fundamentally changed the basis of her claims for protection.  The essence of her claims as articulated in her application was that she entered into a love marriage without her parent’s consent.  Her husband was a neighbour and what they did was very shameful.  When her family came to know about this her mother was very shocked and did not want to see her face and her father-in-law threatened to kill her, lodged an FIR (First Information Report) with the police against her and her husband, and hired some people to kill her.  Her brothers were insulted and one committed suicide as a consequence.  She came to Australia with her husband for his further studies but her husband left her because of the threats by those who don’t accept their marriage, and she does not know where he has gone.

14. The delegate’s decision record indicates that late in the delegate’s interview with the applicant, following a break for the applicant to take stock of what had been discussed before concluding the interview, the applicant advised the delegate that she had forgotten to inform the delegate that when she returned to India in 2010 her family had forced her, under threat of death, to marry another man.  The applicant claimed that she had forgotten this because she is suffering from depression.  The delegate did not find it credible that the applicant could have forgotten this event, given it’s significant and given the applicant’s return to India in 2010 had been discussed at length up to that point.

15. The narrative that the applicant is now putting forward may be summarised as follows:  She married [Mr A], a neighbour, in a ‘love marriage’ [in] July 2008, and travelled with him to Australia. This was a court marriage and her sister, the boy’s father, and a village head were present.  She returned to India in January 2010 because her brother rang her and said her mother was very ill.  However her brother tricked her and when she arrived she was told she could only see her mother if she agreed to marry [Mr B].  She protested that she is already married but her family told her they did not accept that marriage and if she did not agree to marry [Mr B] she would be killed by electric shock.  They took her passport and would not allow her to leave her sister’s house, where she was staying.  She married [Mr B] in a Sikh temple ceremony [in] March 2010 and went to live with his family.  She told [Mr B] that she wanted to return to Australia and he agreed to get her passport and permit this because he thought he too could go to Australia.  [Mr A] found out about her marriage to [Mr B] through people in the village and told her to find work, so she relocated to [Town 1].  He continued to seek money from her for their ‘visa’.  After returning to Australia, she told [Mr B] that she is married to [Mr A] and is not returning to India.  [Mr B] told her she has shamed him and his family.  [Mr A] told the applicant their visa has been refused, that he is seeking a divorce from her and cuts off all contact.  She hears that [Mr A] has remarried ([in] February 2105). If she returns to India she fears harm from her family, [Mr A’s] family and [Mr B’s] family.

16. The applicant claims that she did not mention in her Protection visa application that her family had forced her to marry [Mr B], under threat of death, because she has been stressed and depressed, does not speak, read or write English and because a friend helped her prepare the application and she does not know what is in it.  When asked by the Tribunal why she did not raise this matter until the very end of her interview with the delegate, the applicant said that she answered whatever question was asked but forgot to tell them about the marriage.

17. While accepting that the stress and anxiety that the applicant feels may have an impact on her recall of detail and elements of her story, having questioned the applicant at length during the hearing and found her readily able to respond to questions, the Tribunal, after careful consideration, does not accept that the applicant would have forgotten to tell the person or people who assisted her with her Protection visa application such a fundamental element of her claims as her having been forced to remarry under threat of death.  The Tribunal also does not accept that she would have forgotten to mention this during most of the applicant’s interview with the delegate, given the extent of questioning by the delegate regarding what happened to her when the applicant returned to India in January 2010.

18. In reaching this conclusion the Tribunal has also given weight to other elements of the applicant’s account which it found to be inconsistent or implausible.  These are detailed below.

19. The applicant seeks to present herself as an uneducated village girl, claiming to have grown up in [Village 1] and never worked, not even assisting her parents at home, in the [number] years between finishing school in [year] and travelling to Australia in December 2008.  However, the applicant completed [number] years of schooling, and the certificates she has provided indicate that she achieved First Division (with Distinction) results for her Matriculation exam and a Second Division result for her Senior Secondary Certificate Examination, for which she studied in the neighbouring [village]. The applicant also made two overseas trips in 2007-08 to [Country 2] and [Country 1], remaining in [Country 1] for over six months until [May] 2008, 6 weeks before her marriage to [Mr A] [in] July 2008, after entering [Country 1] on a visa allowing for a [short] social visit only.  When queried by the Tribunal regarding how she could afford to do this if she lived in the village and had never worked, the applicant said she went with a ‘cousin-brother’ and his wife and they and her brother funded the trip because she told them that she really wanted to see those countries.  The Tribunal notes that the applicant’s passport was issued in [2005], indicating a long standing interest in travelling overseas.  The Tribunal finds the applicant’s explanation for these trips to be inconsistent with her claim at the hearing that as a village girl, they don’t let you do anything.  The Tribunal is not satisfied that the applicant was being truthful about the circumstances of, or her activities during, her overseas trips in 2007-08.

20. In her application the applicant stated that her love marriage to [Mr A] was very shameful, that in India we can’t marry the same street person, that her mother was very shocked, that her brothers felt very insulted and one subsequently suicided and that her father-in-law made threats to kill her.  However, she has subsequently revealed that her sister, father-in-law and a village head participated in the marriage.   She also indicated that her brother, who died in July 2009, died of a [medical condition].  When asked about the marriage by the Tribunal, she said her sister attended because she needed a witness from her family and she told her sister she would kill herself if her sister did not agree.  When asked why the boys’ father attended, the applicant said she thought her husband must have compelled his father in the same way she compelled her sister.  When asked why the village head would have been involved, she responded that they are easily bribed, with as little as a bottle of wine, and will sign anything.  The Tribunal finds that these comments are at odds with the applicant’s claims that what she did was shocking and unacceptable to Sikh society, and does not accept that her sister, the boy’s father and the village head would have participated if there had not been broader agreement that this marriage should occur.  The Tribunal concludes that it is more likely that this marriage was arranged to enable the applicant to come to Australia with [Mr A], as a dependent on his Student visa.  The delegate’s decision indicates that she was granted a student visa, as a dependant, [in] November 2008, just over four months after the marriage.

21. The applicant maintains that her family, apart from her sister, were then unaware of her marriage until she returned to India in January 2010.  When asked whether they wondered where she had gone and whether her sister would have told them about the marriage, the applicant commented that if they knew they didn’t show her that they knew.  Noting the applicant’s comments indicating that people in the village gossip about matters and are readily scandalised, and her comments that, in the village, ‘they don’t let you do anything’, the Tribunal finds it implausible that her family members did not know that she had travelled to Australia with [Mr A] in December 2008.  Her comments are also inconsistent with her claim that her uncle committed suicide in July 2009 due to the shame of her love marriage with [Mr A].

22. The applicant said she returned to India in January 2010 because her brother tricked her by telling her that her mother was sick.  Further to the above, it is unclear why he would seek to trick her if he did not know at that time that she was married to [Mr A].  The applicant commented that when she flew into New Delhi no-one was there to pick her up so she travelled to Amritsar by bus and stayed at her sister’s house.  Her passport was taken from her and she was then forced by family members to marry [Mr B] at a public ceremony at the Sikh temple, under threat of death.  She indicated that her sister did not support this course of action but was powerless to assist her because her sister couldn’t jeopardise her future relationships in India.  The Tribunal does not accept that this account is plausible.  The applicant indicated that she has had and still maintains a positive relationship with her sister, with whom she speaks weekly (and who she indicated is providing her with documents from India).  The Tribunal does not accept that she would not have spoken to her sister about the telephone call indicating that her mother was ill, and made arrangements in advance to be picked up in New Delhi, or to come to her sister’s house in Amritsar.  The Tribunal does not accept as plausible that her sister would not have warned her that her mother was not ill, become aware of the marriage plan and warned the applicant about the plan and counselled her not to return to India.  The Tribunal also does not accept as plausible that the applicant was held captive in her sister’s home for two months, from [January] 2010 until the ceremony [in] March 2010, in circumstances where her sister did not approve of her being forced into the marriage, and that the applicant was unable to contact [Mr A] had she wished, to alert him to what was happening and seek assistance.

23. The applicant indicates that after her temple marriage ceremony with [Mr B] [in] March 2010 she lived with him and his family for a few weeks but was then able to convince him to get her passport back from her family and she was able to return to Australia, using all the cash money that she had collected as wedding gifts.  When queried by the Tribunal regarding why he would allow her to do this, the applicant said she told him she wanted to go back to Australia.  When asked why he would agree to that, given they had only been married for a few weeks, she commented it was because he also wanted to go to Australia and thought that she would take him with her, but she didn’t take him, she went by herself.  The Tribunal finds it implausible both that the applicant’s family, if they had taken her passport to stop her fleeing the country, would return it to her so readily and so soon after the marriage, and that [Mr B] would allow her to travel back to Australia, just a few weeks after their marriage, without him.

24. The applicant has also maintained that she does not know whether [Mr A] is divorced or not but she knows (from her sister) he has remarried (and has provided a document to this effect).  When questioned about this by the Tribunal she indicated that her husband used to speak to her about divorce and asked her to sign papers but she never signed any papers and that he ‘got married, but has not given me divorce’.  When asked whether the village would find this shocking, she commented that they were not bothered and that anything is possible if money paid to get things done.  From the delegate’s decision record the applicant was the dependent applicant for a further Student visa lodged in April 2011.  This was refused [in] May 2011 and a review was sought at the Migration Review Tribunal on 3 June 2011, but withdrawn in September 2012.  It seems likely to the Tribunal that [Mr A] and the applicant have divorced, and if this is the case, it is a requirement under Australian law that relevant documents be served on the ‘other party’ at least 28 days before the court hearing[13].  The Tribunal concludes that the applicant would be aware if [Mr A] had filed an application for divorce as a sole applicant.

    [13] How do I apply for a divorce.  Family Court of Australia.  Source on 29 February 2016 at >

    Based on the above, the Tribunal finds that the applicant’s story is not credible and concludes that the applicant is not a witness of truth.   The Tribunal does not accept that the applicant entered into a marriage with [Mr A] without the knowledge of and against the wishes of her family.  The Tribunal does not accept that her uncle committed suicide in July 2009 as a consequence of the shame of this relationship. The Tribunal does not accept that [Mr A’s] father lodged an FIR against them, threatened to kill them, hired people to kill them, or that the police are looking for them.  The Tribunal does not accept that the applicant was tricked by her family into returning to India in 2010, or forced against her will or under threat of death to marry [Mr B].  The Tribunal does not accept that [Mr A] left the applicant because of threats made against him.   Accordingly, the Tribunal does not accept that the applicant is at risk of harm from either her family, [Mr A’s] family, or [Mr B’s] family, should she return to India.

25. As the Tribunal has found that there is not a real chance that the applicant would suffer persecution should she return to India, the Tribunal finds that the applicant would not require the protection of the authorities in India.

    Does the applicant have a well-founded fear of persecution if she returned to India?

1. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution amounting to serious harm, if she were to return to India, now or in the foreseeable future.

2. Accordingly, 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).

   Complementary protection

3. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

4. The Tribunal has considered the applicant’s submissions in relation to her mental health issues.  In this regard the Tribunal notes that she was prescribed the anti-depressant [medication] by her doctor [in] November 2015, but also notes that the original, unfilled prescription was submitted to the Tribunal as evidence, on 2 December 2015, so it is unclear whether the applicant is actually taking this medication.  The Tribunal notes the findings of the applicant’s psychologist in his report of [November] 2015 that the applicant is experiencing a major depressive disorder at a severe level of intensity and that she is motivated to proceed with regular psychological consultations.  The Tribunal notes country information[14] which indicates that, while the quality of medical care in India varies considerably, medical care in the major population centres approaches and occasionally meets Western standards.  Based on the psychologist’s report, The Tribunal accepts that the applicant has mental health problems.  However, drawing on the country information regarding the availability of appropriate services in major population centres in India such as Amritsar[15], where the applicant’s sister lives, the Tribunal finds that the applicant’s mental health issues are not such as to give rise to a real risk that the applicant would suffer significant harm, should she return to India.

   [14]US Department of State, Bureau of Consular Affairs, India, April 24, 2015.  Sourced at The current population of Amritsar is estimated to be 1.22 Million.  Sourced on 29 February 2016 from >

   Therefore, and also having regard to all the findings of fact set out above, the Tribunal does not accept that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm, now or in the foreseeable future.  The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

5. 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

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

   Paul Windsor

   
   

   Member