1415734 (Refugee)

[2015] AATA 3806

1415734 (Refugee) [2015] AATA 3806 (25 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415734

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:25 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 25 November 2015 at 10:24am

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] March 2014 and the delegate refused to grant the visa [in] September 2014.

3. The applicant appeared before the Tribunal on 17 September 2015 to give evidence and present arguments.

RELEVANT LAW

1. 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

1. 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).  

2. 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.

3. 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.

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

5. 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)).

10.  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. Section 91R(2) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

11.  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.

12.  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.

13.  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.

14.  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.

15.  Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

16.  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’).

17.  ‘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.

18.  There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

19.  In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken into account 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

20.  The Tribunal had before it material including:

• Application for protection visa;

• Copy of the applicant’s passport;

• A letter dated 17 September 2015 from the applicant’s current partner concerning the applicant’s claims and their relationship.[1]

• Country information.

  [1] AAT, ff 14 - 15

21.  The applicant’s claims can be summarised as follows. The applicant, who comes from the village of [name deleted] in the Punjab, left India because her father was a strict Sikh and she disagreed with him because she did not adhere to, or respect, Sikhism. Before her departure from India, she entered a love marriage. She is now divorced and in an on-going long-term relationship with a Sikh person from another caste. Her father will subject her to emotional abuse and kill her if she returns to India. Her relatives and the community will not support her because they agree with him and she will be an outcaste. The state will not protect her from her father. She will not be able to survive if she returns to India and will want to suicide.

22.  At the hearing the applicant confirmed that she came to Australia on a Student visa in 2008 accompanied by her husband as a dependent. She later applied for a [further] temporary [visa] which was refused, a decision affirmed by the MRT. The applicant sought ministerial intervention and, when this was delined, she applied for a protection visa in 2014.

23.  At the hearing, the applicant described her father as a strict Sikh. She stated that the main issue her father has with her, is that she does not believe in Sikhism. Her father is angry that she has no respect for his religion. Her mother, who supported her, has passed away. The applicant showed disrespect for Sikhs by adopting western ways, for example, by wearing jeans and preferring western culture.

24.  Immediately before coming to Australia, the applicant entered a love marriage. At that time, only her mother knew about the marriage. Her mother later told her father of the marriage. When told, her father said that this action showed disrespect for him and Sikhism. She wanted to live far away and her spouse knew her situation so they chose to come to Australia straight after their marriage, in November 2008.

25.  The applicant stated that her father did not support her stay or study in Australia.

26.  The applicant returned to India for a visit of [number] days in 2011, she stayed initially with her parents. She and her father argued a lot. In one argument, he tried to hit her and to throw something at her. Later she stayed with her [uncle].

27.  At the hearing, the applicant stated that she and her husband divorced in 2012, and that she is now in a long-term, live-in relationship. She stated that her partner, who is in Australia on a temporary [visa], is also from the Punjab and is a Sikh of another (“upper”) caste. She and her partner have lived in the same house for four years. She was depressed when her marriage broke up and her partner was supportive. They have been in a live-in relationship for the past two years. Her partner supports her financially and they regard their commitment as a marriage. Her father will not approve of the relationship because it is inter-caste.

28.  At the hearing, the applicant stated that her father and family do not know details about her partner, where he is from or who he is. She told her mother of her new relationship and she believes her mother spoke to her family about the new relationship.  She does not know her father’s reaction, but she states that as a Sikh he believes a marriage partner should be of the same caste and he will make a big issue of this.

29.  The applicant’s father does not listen to anyone, including his brothers and does whatever he decides. The applicant stated she always argued with her father and he shouted and abused her. He drank a lot and when did this he did not know what he was saying and would hit her mother. When the applicant told him that she does not respect him or Sikhism because of this, he abused her badly and said that she was not of his blood. The applicant stated that she wanted to return to India in 2012 when her mother died to ‘see’ her for the last time, but her father told her uncle that he “didn’t want to see her face; that if she came he doesn’t know what he would do; he would kill (her).”  The applicant has not spoken with her father since that time but states that if the applicant returns to India, he will kill her. He already hates her and has “said all the words”.

30.  At the hearing, the applicant stated that her current partner has not talked with his family but that she thinks his family won’t accept her because they are also strict Sikhs. They do not know she is divorced and from another caste. The applicant provided the Tribunal with a letter from her current partner[2]. In this he states that the applicant “belongs to Amritsar which is a stringent place regarding inter-caste affairs.” He further states that he and the applicant have been in a live-in relationship for nearly 2 years and they are in “a genuine and mutually committed ongoing relationship”. He states that their families are aware of their relationship and are totally against it because it is against their cultural and religious beliefs. He states that he is concerned for the safety of the applicant …; and hopes that she can be granted a visa so she can live happily and resolve her ongoing conflict with her family.

[2] AAT, ff. 14 – 15.

31.  The applicant stated that her sister-in-law has her mother’s phone and that she keeps in touch with the family from time to time through the sister-in-law and tries to be nice to them.  Her [brothers] and their families, who stay with her father, follow their father, and do not want to see her because they think she does not respect them.  They think she is a burden and that because of her, the community says bad things about them. The applicant’s aunts and uncles agree with her father and feel that she has disrespected everyone. They told her that she should not cut her hair, wear make-up or jeans. Her [uncle] is no longer alive. She wants to be far from her family - that is the main reason for the application – because she can’t tolerate them. She will be outcaste by the family and community. This is stressful and she will be abused and beaten by them and members of the community. The new generation understand that caste is not important, but the villagers and old people do not.

32.  The state will not protect the applicant because they are very traditional.

33.  The applicant’s father will find her if she moved elsewhere in India. She knows of examples of this happening where the police have been bribed to find someone. He knows people who would help him find her. If they found her, they would harm her. They would kill both her and her partner. They just shoot and hang people in her situation, and that this happens a lot in India, especially in the Punjab. She is scared she will be found.

34.  The applicant does not want to return to India because there are no jobs, things are very expensive, and it is hard to manage by yourself. The applicant does not like the system in India where girls are not respected and it is not safe for girls.

35.  If she returns to India, the applicant will get depressed and suicide.

Country of reference

36.  The applicant claims to be an Indian national. Based on the copy of her passport, I find that India is her country of nationality for the purposes of the Convention and also her receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

Assessment of Claims

37.  The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm at the hands of her father, relatives, community and partner’s family if she returns to India because of her rejection of Sikhism, previous love marriage, divorce and her relationship with her current partner from another caste.

38.  The Tribunal found the applicant’s oral evidence to contain inconsistencies and to change over the course of the hearing.  For instance, the applicant stated initially that her father did not know that she is no longer with her first husband, but later stated that he and the family are aware of her new relationship. Similarly, the applicant provided inconsistent information about her partner’s family’s knowledge of their relationship, indicating at first that they do not know of the relationship and later that they did. In light of these inconsistencies in the applicant’s oral evidence, the Tribunal has concerns about the reliability of the applicant’s claims.

39.  The Tribunal also found a number of the applicant’s claims to be non-specific and superficial which led to concerns about their credibility. When the applicant was asked to describe how she thought her father would respond if she returned, she said that “he was a strict and angry person, who is upset easily and doesn’t listen to anyone”. Her reason for stating that he would kill her was based on a vague threat she claimed her father had made to her uncle in 2012 that if she returned for the funeral of her mother “he didn’t want to see her face; if she comes he didn’t know what he would do. He would kill her.”  While taking into consideration the applicant’s claim that she has not spoken with her father since that time, the Tribunal would expect the applicant to have sought more specific and detailed understanding of her father’s response to her current situation through her family contact, for example her sister in law with whom she has contact, than comments made to her uncle in 2012. In reply to Tribunal questions about her father’s possible response to her current relationship, the applicant said only that “he already hates her. He said all the words.” Again, the Tribunal would have expected the applicant to have sought more information about her current situation through some contact with family members and to be able to describe this in more detail. In light of these concerns about the applicant’s oral evidence, the Tribunal formed the view that the applicant’s claims in relation to the seriousness of the harm she faces upon return to India are unreliable and have been exaggerated for the purpose of this application.

40.  The Tribunal accepts that the applicant is from [a village in] Amritsar, in the Punjab.  On the evidence before it, the Tribunal also accepts that the applicant came to Australia on a Student visa in 2008 with her dependent husband, and applied to stay in Australia on a Protection visa in 2014.

41.  On the applicant’s evidence at the hearing, the Tribunal accepts that she prefers western culture, does not adhere to Sikhism and entered into a love marriage in 2009. The Tribunal also accepts that she and her husband divorced and she is now in a long-term relationship with a Sikh person of another caste.

42.  On the applicant’s evidence, the Tribunal is willing to accept that her father is a strict Sikh and that he does not agree with her views and conduct. The Tribunal is willing to accept on the applicant’s evidence that they have a poor and argumentative relationship that has led to tension at home and disengagement on both sides. In assessing whether the applicant faces a real chance of serious harm or the real risk of significant harm from her father on this basis, the Tribunal has had regard to the non-exhaustive examples of serious harm in s.91R of the Act, and the definition of significant harm in ss.5 and 36(2) of the Act (as outlined above), the Tribunal considered whether this conduct constituted serious or significant harm. It finds that while this is unpleasant and distressing, on its own, it does not.

43.  The Tribunal has considered the applicant’s claim that her father does not want a relationship with her and will kill her. In this consideration, the Tribunal has taken into account that the applicant returned home in 2011 after her father was aware of her love marriage. The Tribunal considers her return at this time demonstrates her confidence in her safety. She claimed that she and her father argued and that he showed a potential to violence towards her in one of these arguments. The Tribunal has also considered that the applicant’s father drinks and when drunk was violent towards his wife.  However, the Tribunal notes that the applicant remained in the area during her visit and that she was not the subject of any incidents of harm in her stay of [number] days. The Tribunal considers that if the applicant had concern for her safety she would not have remained. In this regard, the Tribunal has considered that the applicant’s mother was alive at that time and that she provided the applicant with emotional support.  However, the Tribunal considers that had the applicant’s father the intent to harm her, her mother’s presence would not have prevented it because the applicant described a situation where her father was dominant in the household and also, according to the applicant, had the support of her brothers in his traditional views. The Tribunal also considered whether there were other reasons why the applicant remained in the area but on the evidence before it found that there were not. In this regard, the Tribunal also took into account its finding above that concerning the applicant’s credibility in relation to chance of serious harm and risk of significant harm from her father the applicant claims to face on return to India. The Tribunal does not accept the applicant’s claim that her father has the intention of harming her on this basis.

44.  In assessing whether the applicant faces a real chance of serious harm from her father, in the reasonably foreseeable future, the Tribunal also considered the evidence that her father continued to provide financial support for her study in Australia two years after her first (love) marriage. At the hearing, the Tribunal referred to the information in the delegate’s decision that financial documentation had been provided with her further stay Student visa application in December 2010.  The applicant was asked to comment on the term deposits in the name of her father which had been put to the Department to confirm his ability to finance the applicant’s ongoing study in Australia. The term deposits were commenced in January 2009 after the applicant’s arrival in Australia and her father’s knowledge of her marriage. The Tribunal put to the applicant that his willingness to support her in this way was not indicative of a person who wished to harm her and sought her comment. The Tribunal also sought the applicant’s response to the proposition that her father knew he was providing the financial documentation, taking into account that the term deposits are only in the applicant’s father’s name and from a reputable bank, [named]. The applicant stated she did not know what her mother had said to convince him but it was her mother who had supported her and that her mother must have found a way to get him to provide this documentation from their joint account. The Tribunal has considered the applicant’s comments but does not accept this explanation because the funds did not come from a joint account but term deposits in his name. The Tribunal does not consider it credible that the applicant’s father did not know he was providing the financial documentation and the reasons why it was required. The Tribunal finds that the financial support from the applicant’s father for her further study in Australia is not the conduct of a person who holds traditional views about his daughter such that he would kill her or in any other way seriously or significantly harm her.

45.  In considering the applicant’s father’s future intent, the Tribunal has taken account of the applicant’s oral evidence that she did not return to India for her mother’s funeral because her father had stated to her uncle that he did not want to see her and that he would harm her. The Tribunal has considered this claim in the context of the applicant’s other claims in relation to her father, in particular that the applicant returned to the family home in 2011 when her father was aware of her love marriage and after his statement to her mother that he felt disrespected by this act. The Tribunal has also carefully considered this claim in the light of the evidence of the applicant’s father’s financial support. The Tribunal gives more weight to the indication of her father’s support for the applicant which is shown by his provision of evidence of his financial support for her further Student visa than the claimed words of the applicant’s uncle. On this basis, the Tribunal does not accept that the applicant’s father made this statement or that the applicant did not return to India at the time of her mother’s funeral for the reason that her father would harm her.        

46.  The Tribunal has considered the applicant’s claim that her father will not approve of her new relationship because it is inter-caste and that he will kill her because this is not in line with Sikh belief. In this regard, the Tribunal notes, as discussed above, that the applicant was inconsistent about the level of knowledge of her father about her current relationship. On an assessment of the applicant’s evidence, the Tribunal accepts the applicant’s claim that she has not discussed her new relationship with her father or family and she does not have any information to support her claims about their future conduct because of this relationship. As discussed above, the applicant later indicated that her father was aware of the relationship. While the Tribunal has found that she and her father disagree and argue about her beliefs and that he does not want a relationship with her, it has also found that he supported her study in Australia despite being aware of her rejection of Sikhism and lack of respect of its traditions demonstrated through her love marriage and that this does not support a finding that he has traditional Sikh views such that he would seriously or significantly harm her. On the evidence, the Tribunal is willing to accept that her father will not approve of her current relationship because it is inter-caste and that they will argue and this will cause tension and their further estrangement.

47.  In considering whether the applicant faces a real chance of serious harm or the real risk of significant harm in the reasonably foreseeable future, the Tribunal has considered whether the existence of the applicant’s divorce and current inter-caste relationship, as well as the cumulative impact of these circumstances, change the applicant’s circumstances in relation to her father. At the hearing the applicant stated that her brief, but on-going contact with her sister-in-law indicates that the relationship between the applicant and her family remains strained. The Tribunal is willing to accept this is plausible.  In this consideration, the Tribunal has considered the letter of support for her application provided by the applicant’s partner. In this letter, he states that their families are aware of their relationship and they are totally against it on the basis of cultural and orthodox beliefs. He states that he is “very concerned for the safety issues and current depression faced by the applicant due to the ongoing visa issues.” The Tribunal notes that this letter supports the applicant’s claim that she and her partner are Sikhs from different castes and that their families are against the relationship.  The Tribunal also notes that the letter is vague and provides no information about what or who the applicant fears in relation to her safety. In the consideration of risk of harm in the future, the Tribunal has given this statement little weight because it would expect the applicant’s current partner to identify what the nature of the “safety issues” is and to be specific about the applicant’s claimed fears.

48.  The Tribunal has also noted the applicant’s partner’s observation that she is currently depressed due to her ongoing visa issues, and acknowledges that uncertainty in these matters can be distressing. In this respect, the Tribunal notes that there are many reasons that ongoing visa issues may cause concern and that the applicant’s response to her current situation is not necessarily indicative that she faces serious or significant harm if she returns to India. In regard to the applicant’s claimed depression, the Tribunal has also considered whether the applicant’s inconsistent and vague presentation of her claims is at all due to her claimed depression. However, in the overall context of the applicant’s presentation which was generally acute, the Tribunal does not accept that the applicant’s ability to credibly present her claims was affected by her state of mind.  The Tribunal finds that the applicant’s claimed depression is not indicative that she faces a real chance of serious harm or a real risk of significant harm from her father or anyone else if she returns to India.    

49.  While the applicant did not refer to her divorce as a source of contention between herself and her father, the Tribunal has considered this aspect of her circumstances. In this consideration, the Tribunal has had regard to country advice from 2012[3]. This advice states that academic sources indicate that while divorce remains uncommon, it is becoming more common and accepted in India generally.[4] The advice states that divorce carries a strong stigma in Punjab and women who seek a divorce may risk social disapproval and rejection by the community, but that there have been no reports located of divorced women being subject to attacks in Punjab.[5] Similarly, while the applicant did not raise the de-facto nature of her current relationship as a concern to her father, the Tribunal notes that this is outside established Sikh norms and has considered this aspect on this basis. The Tribunal notes the central role of marriage in Sikh culture and that in “much of Sikh society… a woman’s standing depends largely on having a husband”[6] and accepts that the applicant may face her father’s ongoing disapproval and rejection. The Tribunal has considered all these aspects individually and cumulatively and while it accepts that her father’s beliefs may lead him to disapprove of her divorce and de facto relationship, the Tribunal does not find evidence to indicate that there is more than a remote chance that her father will persecute the applicant for this reason.

[3] Refugee Review Tribunal, Country Advice, India: Punjab - Nawanshahr - Divorced women - relocation.

[4] Refugee Review Tribunal, Country Advice, India: Punjab - Nawanshah - Divorced women - relocation.

[5] Refugee Review Tribunal, Country Advice, India: Punjab - Nawanshah - Divorced women - relocation.

[6] [6] Nesbitt, E 2005, Sikhism: A very short introduction, Oxford University Press, Oxford, p. 115

50.  In considering whether the applicant faces a real chance of serious harm or a real risk of significant harm from her father on the basis of her current situation, the Tribunal has taken into account that when the applicant lodged her application for a Protection visa in March 2014 she made no reference to her new relationship which according to the applicant’s evidence at the hearing was in an ongoing live-in form at that time. The applicant made no reference to concerns about this relationship or her father’s response to this relationship in her Protection visa interview with the Departmental delegate in August 2014 almost one year after the claimed relationship commenced. At that time, she claimed to be single. The Tribunal considers that if the applicant had fears for her safety on the basis of her current relationship, she would have raised this claim in her interview with the delegate.

51.  In considering whether the applicant faces a real chance of serious harm or a real risk of significant harm from her father on the basis of her relationship with a Sikh from another caste, the Tribunal has taken into account country information before it. In July 2015, the DFAT Country Report on India[7] advised that incidents of honour killings occur in relation to inter-caste marriage, and that women who break taboos around marriage, including inter-caste, may be subject to serious or significant harm. In this respect, the Tribunal has considered the applicant’s individual circumstances, in particular, the finding above that the evidence is that her father does not wish to harm her. On the evidence above, the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm from her father in the reasonably foreseeable because of her current relationship. 

[7] India Country Report, DFAT, 2015, p13.

52.  The Tribunal considered the claim that the applicant’s father would find her and she would be killed if she (and her partner) moved to another part of India. Given that the Tribunal has found that the applicant does not face a real chance of serious harm or a real risk of significant harm from her father, the Tribunal does not accept this claim.

53.  The Tribunal has considered the applicant’s claim at the hearing that that her family and community members are against her because they share her father’s views, that they tell her she should not should not cut her hair, wear make-up or jeans, and consider her a burden and that because of her the community is negative about them. At the hearing, the applicant stated that this conduct is stressful and she would be abused, outcast and beaten by them. In considering this claim, the Tribunal has taken into account the country information above that women who break taboos may be subject to serious or significant harm. In assessing the applicant’s particular circumstances and whether she faces a real chance of this conduct, the Tribunal has also considered that the applicant has made no claim that the community has treated her in this way in the past, although her behaviour indicated that she did not hold traditional Sikh views. In this respect, the Tribunal also notes that the applicant safely returned to her home community in 2011 after she had already broken Sikh cultural and marriage norms.  Weighing the evidence, the Tribunal finds that there is a remote chance that the applicant faces harm from her community on this basis.    

54.  The Tribunal considered whether the applicant faces a real chance of serious harm or a real risk of significant harm from her partner’s family. The applicant stated at the hearing that her partner has not talked with his family but that she thinks his family won’t accept her because they are also strict Sikhs and that she is from another caste. The applicant was very vague about this claim and the Tribunal noted that neither the applicant at the hearing, nor her partner in his letter, claimed to face harm from his family. At the hearing, the applicant’s claims in respect of her partner’s family shifted. Initially she stated that they did not know about their relationship, later saying that they did know about it but did not know her circumstances.  The applicant also stated that her current partner has not talked with his family. However, her partner stated in his letter that their families are aware of the relationship and are totally against it because it is against their cultural and religious beliefs. The applicant then stated that her partner’s family knew of the relationship through common facebook friends. The Tribunal finds the lack of common view about the partner’s family awareness of their situation, does not support a conclusion that the applicant and her partner have considered this matter together. In the Tribunal’s view, this does not support a finding that the applicant faces harm from her partner’s family.  On the evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm or the real risk of significant harm from her partner’s family in the reasonably foreseeable future.  

55.  The Tribunal has considered the applicant’s claim that if she returns to India she will get depressed and suicide. The Tribunal notes the applicant’s reference at the hearing that she had experienced times of stress and feeling depressed. The Tribunal also notes the applicant’s partner expressed concern in his letter about the depression faced by the applicant due to ongoing visa issues. The Tribunal acknowledges that the applicant’s mental health concerns are serious and has given these claims due regard in the assessment of her evidence. However, the requirements of s.36(2)(a) and (aa) are not directed at such concerns in these circumstances. In considering this claim, the Tribunal had regard to the concepts of ‘persecution’ explained by 91R(1) and (2) of the Act, and ‘significant harm’ for these purposes exhaustively defined in s.36(2A): s.5(1), that the conduct inflicted by another person or persons, or a third party. The Tribunal finds that the possibility that the applicant becomes depressed and suicides does not involve the conduct of another person or persons, or third party, and does not constitute serious or significant harm on this basis.

56.  The applicant made the claim that India is not a safe environment for girls because they are not respected. The Tribunal accepts that the applicant does not want to return to India for this reason. The Tribunal has considered whether the applicant will be the target of serious harm because she is a member of the particular social group of ‘women’. In this assessment, the Tribunal has also noted country information which indicates that while women may be the victim of gender based crime, “there are specific statutory laws in place which provide tough penalties for domestic violence, rape, acid attacks, sexual harassment, trafficking and other related offences.”[8], and that in general, a person is likely to be able to access effective protection from the state.[9] In the applicant’s specific situation, the Tribunal finds that she has the backing of a family which is sufficiently well resourced to send her for education in Australia and that on return she will have the protection of her family. Weighing the evidence, the Tribunal finds that there is a remote chance that the applicant faces harm on this basis of being a woman in India.   

[8] U.K. Home office, Country Information and Guidance, India Background Information: including actor of protection, and internal relocation, February 2015

[9] U.K. Home office, Country Information and Guidance, India Background Information: including actor of protection, and internal relocation, February 2015

57.  The Tribunal also assessed this claim under the complementary protection criterion. In this consideration, the Tribunal notes the guidance that s.36(2)(aa) refers to a ‘real risk’ of the applicant suffering significant harm. As the Court in MIAC v SZQRB [2013] FCAFC 33 confirmed, the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention. Based on the assessment above that there is a remote chance that the applicant will be targeted for serious harm on the basis of being a woman in India, 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).

58.  Considering all the applicant’s claims, both individually cumulatively, the Tribunal finds that she does not face a real chance of persecution in the reasonably foreseeable future for any Convention related reason from anyone. Her fear of persecution is not well founded.

59.  Considering all her claims, individually and cumulatively, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that she will suffer significant harm.

Conclusions

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

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

62.  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

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

Amanda Paxton

Member