1417392 (Refugee)

1417392 (Refugee) [2015] AATA 3985 (15 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1417392
COUNTRY OF REFERENCE:                  India
MEMBER:Magda Wysocka
DATE:15 December 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 15 December 2015 at 4:16pm
CATCHWORDS
Refugee – Protection visa – India – Social group – Divorced woman – Child born out of wedlock – Threats from ex-husband – Credibility issues – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
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

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).
The applicant, who claims to be a citizen of India, applied for the visa on 17 February 2014 and the delegate refused to grant the visa on 10 October 2014. A copy of the decision record was provided with the application for review.
The hearing in this matter was originally scheduled to be held on 6 August 2015 but was postponed for lengthy periods of time on two occasions at the request of the applicant due to complications prior to and after her pregnancy.
The applicant appeared before the Tribunal on 17 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by her registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on 4 June 2009 as the holder of a student visa. According to information contained in the departmental decision record provided to the tribunal, she applied for and was refused a further student visa in October 2011. The Migration Review Tribunal affirmed the refusal on 11 April 2013 and the applicant sought ministerial intervention, which was refused on 20 January 2014.
According to the claims set out in her visa application and submissions from her agent, the applicant fears harm from her ex-husband and his family in India. She had an arranged marriage to [Mr A]in April 2009 but his visa applications to join her in Australia were refused. This has brought shame and loss of face to her ex husband and his family, who have blamed the applicant. The couple divorced in September 2012, bringing further shame and dishonour to the ex-husband and his family. The applicant claims that Indian tradition and culture gives husbands and in laws the right to kill women in their family for shaming and dishonouring them. The Indian government cannot protect her and there is a gender bias in the police force.
Submissions from her agent refer to the applicant’s fear of harm on the basis of her particular social group of ‘divorced women who are perceived to have compromised family honour’. Documents provided include copies of the applicant’s marriage certificate and one page of her divorce petition.
The delegate found that the applicant had embellished her claims for protection and placed weight on statements made by her in a June 2013 ministerial intervention interview that she did not fear harm in India, that she had no contact with her ex husband since September 2012 and no direct threats from him or his family. The delegate further had concerns about the 17 month delay in seeking protection after the applicant’s divorce.
Tribunal proceedings
The applicant was initially asked if she would like to make any changes or additions to her protection claims and advised that she did not.
She is [years old] and is living with her sister who is here on a [temporary] visa and came in 2009, after the applicant. She was born and lived in [a] small city in Punjab. Her parents, two brothers and one brother’s wife all live [together]. One brother owns a shop. The other is a bus conductor. Her parents own their own farm. Her father is [age] years old. She has other relatives in nearby villages.
Her sister and her daughter [are] in Australia. Her ex boyfriend [is] the father. They were together for six or seven months and broke up 2-3 months after she found out she was pregnant. She is not in contact with him. He is a student, not an Australian citizen or permanent resident.
She confirmed her marriage and divorce to her ex husband [Mr A]. She was asked when her last contact with him was. She stated that after the divorce he called her many times. He was angry. She cannot remember when the last time she spoke to him was; it was a long time ago. He resides in his village, 25 minutes from her city. She knows he is still there because they came to her parents’ home. Last year, they came to her parents and blamed her for not bringing her husband here.
She finished a bachelor [degree] in [India]. She worked [in] India for five or six years. She worked in a [workplace] some time ago in Australia.
She was asked what her reasons for seeking protection in Australia. She stated that she feels safe here. When she came here, she applied for a visa for her husband. Her agent applied for everything wrong and took a lot of money. The agent put an invalid application for her husband. His parents blame her for this. They threatened her parents a lot of times. She needs safety from them because they blame her for them losing their place in society.
She fears her ex-husband and his whole family, meaning his two older brothers, his mum and his dad. Her agent applied for another visa for the applicant and the applicant did not realise that this meant that her visa finished earlier than she thought.
When asked if she has any other fears apart from this, she stated that maybe they know she has a baby. They told her parents that if she comes back to India they won’t allow her to marry and they can kill her.
When asked again whether she has any other reasons apart from this to fear returning to India she advised that it is for that reason. Her parents are getting old; they have diabetes. She cannot stay with them forever. In India you cannot live with your parents forever.
She was asked how she came to marry [Mr A]. She advised that according to Sikh culture her parents arranged the marriage. There was a middle man who suggested the match. Her parents were looking for a match for her. The tribunal noted that she married shortly before coming to Australia and asked why she married at that particular time. She advised that her parents were looking for a match and she was getting older; she was [a certain age] at the time.
She was asked if there were any promises made to [Mr A]’s family about him going to Australia. She advised that there were no promises made. The arrangement was that he would come and help her because after marriage he was supposed to follow her. She advised there was no money exchanged. When the divorce took place, his family demanded money. They paid for her ticket to come for Australia, plus they spent some money for shopping. Whatever money they spent on the wedding, even the gold, they took it back. Her parents paid them back. That happened when the divorce was finalised. After the divorce, around 50-60 people came to her parents’ house and asked for the money back.
She was asked if a dowry was paid but she appeared not to understand. She stated that her family spent money on jewellery. Her parents tried to arrange the marriage in the best way and spent a lot of money. They did not realise anything would go wrong. At the time of the wedding, nobody knew that this problem would happen.
She applied for a visa for her husband shortly after she came to Australia through an agent. The agent put in an invalid application. Her visa arrived on 22 April 2009 and the marriage was [in] April. She was told she should have mentioned her husband when her original application was lodged but she did not.
She spoke to another agent here who said that everything was arranged; she lodged an application and was told that the applicant’s husband would not have any problems. She had to pay a lot of money. Again, the application was invalid. The agent applied again from India but the visa was refused. Maybe they did not believe that he was her husband.
She was told by others that her agent might have made a mistake. Immigration told her that she should have just filled out a form. She confirmed that she applied for her husband three times from 2009 until 2010. She told him what happened but they thought that she was not trying. She tried her best. His whole family was threatening her and her family.
She was asked if she tried to apply for him after 2010. She stated that she did not realise that her visa ran out in August 2011; she thought that it was still going until October 2011 and then when she applied for a further visa she was told that she had lodged too late.
She was asked what her husband said when she told him that. He said that she was lying; she told him that she was trying here and asked him to try from his end. When he went to the agent over there, those officers told him that his wife was trying. He did not admit that someone had made a mistake. He said that she did not apply. When the visa was refused she asked him to give her some time and that she would approach another agent. By the time the whole misunderstanding took place, they said that they want a divorce from her. She was so upset by that time.
Her husband and his family told her that he was going to divorce her when his visa was refused in 2010. After his visa was refused, his family started approaching her family. They wanted to divorce her at the time but she tried to prolong it and kept saying that she would try. She wanted to stay with him. But during that time two years passed.
She told her husband and his family that her visa was refused but they told her she was lying. Since then her problems started. She then stated that when her husband’s visa was refused, they started going to her parents’ house. They said that his visa had been refused three times and that their daughter did not want to bring [Mr A] to Australia. Then her parents took three people with them and went to their house to say that they were trying. The middle man who arranged the marriage also went. They explained that it was due to the agent’s mistake. His family waited for a while; they said they would wait for 3-4 months more. They kept on talking to her and asking her when she was going to apply. During that tension, her visa was also refused.
She was asked if there was any other harassment from her husband or his family after that. When her visa was refused, her parents explained to her in laws that the applicant’s visa had expired. Then her husband and his family started creating the problem that the applicant does not want to bring him. They took someone with them to her parents’ house and said it gave them a bad name in society and asked why the applicant did not want to bring their son to Australia.
It happened many times. They came with a few people with them. When her family went to their house, they would go with the middle man, only to request more time. She was asked if this also happened after her visa was refused. She stated that they asked for time for the applicant to try something or else return. Her inlaws did not want to listen; they wanted an answer or their money back.
The day they came to her family’s house; her husband was very angry. He spoke to her on the phone. His brother was also there. She told him to tell his parents that she was trying her best here. That was around the time of her divorce.
His family always spoke about divorce. The day they spoke about divorce they said that the applicant should come to India to sign the divorce papers. She wanted to keep the relationship going. The tribunal asked what would it matter if she did not have a visa to remain in Australia. It put to her that it seemed like a key part of the marriage arrangement was for her husband to come to Australia.
She was asked if she knew that her husband had filed for divorce. He was saying that but suddenly she received documents about that and she was upset. Her parents said that her husband wanted a divorce too. She knew that he applied for divorce but she tried her best not to get a divorce. A woman from the sheriff’s office gave her the divorce paper. The tribunal noted that it was only one page and asked where the whole document was. She claimed that she was not sure where she has it but can find it.

She was asked if anything else happened after the divorce. Her parents had not paid them back the money. During that time her in laws were saying that if their daughter comes back, they would not spare her. They were saying that their name had been spoiled in society and that the applicant’s family have deceived them. Her parents were scared that if the in laws did anything to the applicant, who would be responsible.
Her parents slowly paid back all the money to her husband’s family, through the middle man. They finished paying the money back 1-1 ½ years after the divorce. It was all the expenses including jewellery. Her husband said that they will get all the money back. She does not know the total of what they paid because it was all through her parents.
She was asked what has happened after that. She advised that two or three times they rang her brother and came to her family house also. They are saying the applicant spoilt their son’s life. They said that if the applicant comes to India they will not spare her. When they came and spoke like that, her grandmother was home and very upset, so she died from the stress. Her grandmother passed away last year in approximately May 2014. She also wanted to see her parents but due to fear she has not been able to.
Her husband would ring her brother. Her sister went back last year and the husband rang her brother and said ‘why don’t you call the other daughter here who has spoilt my life’. He was drunk and abusive. She confirmed that was last year. Since then, that is all. They are trying to harass her parents; she is far so they are harassing her parents.
Her husband and his family have not been to the house since 2014 but they call her brothers. Her parents have asked them to let the applicant live her life.
She was asked if anyone in her family has been harmed. She advised that due to this tension, her father was hospitalised for stress because he did not have money to pay them. None of them have actually physically harmed her family. They are blaming the applicant but cannot understand that she has not done anything.
She was asked about interactions with her ex husband after her divorce. She stated that she called him and they had a conversation and she asked why he was divorcing her and that she does not want to divorce him. She told him that everything will be alright. He was angry and said no. She told him that she can come back and they can be together but he said no because she has spoiled his and his family’s reputation and was angry.
She was asked to explain how her husband and his family’s reputation has been spoiled. They said that the applicant left the boy and they cannot marry him again. People may think something is wrong with the boy because she left him. The tribunal noted that he divorced her, not the other way around. She claimed that in society they are saying that she is the one who divorced him because she did not want to call him here. If he had spoken to her politely she would have gone back to him. When asked who in society is saying she divorced her husband, she referred to her in laws saying that she left her husband because she did not want to bring him to Australia. The tribunal questioned why they would be saying that if it would bring them dishonour and when in fact it was her husband who initiated the divorce.
Her husband said if she comes back they can do anything to her. That was during their one conversation after the divorce. She was asked if there were any other interactions she had with her husband. She told her husband that if he wants to patch up the matter he should call her. He tried to call her two or three times but she did not pick up the phone. He speaks badly after drinking. He was drunk when he called her and when he spoke to her brother.
She confirmed that around their divorce was the last time she spoke to her husband. Apart from the 2-3 times she did not pick up his calls, that was the last time she had any phone calls from him or his family but they call her brother and came to her house. There are some common people known to both families, they say the same thing.
She was asked what she knows about her ex husband’s current circumstances and whether he has remarried. She stated that she does not know. She has not heard anything. She is not interested.
Her parents said that they could still patch things up to the husband and his parents. She told her parents to go and talk to them; they did. After that her ex husband rang her brother. She confirmed that her parents went to his family but they said they can never accept her because she has spoiled [Mr A]’s life.
When her husband rang her brother he spoke to him very rudely and said they will kill her. She was asked if her husband was violent to her when they were together. She stated that she did not stay with him for long; everything was fine. She did not have time to know his family. The tribunal noted that its understanding is that marriages are arranged carefully and that her family would have gotten to know about her future husband’s family before agreeing to the marriage.
The tribunal asked if her husband or his family has been violent to anyone else. She stated that they had some problem with their cousin or uncle but she does not know. Her husband had some problem with his paternal uncle; she does not have much detail about it. Something was going on in the court but she does not know.
The tribunal noted that it appeared her ex in laws did not harm her family. She advised that when the news broke about the divorce, his brother came to the applicant’s family house and pushing and shoving was done. The tribunal asked why that happened, given it was her husband who initiated the divorce. The argument was about money; her parents asked why they should return money. Her parents were calm; her husband and his brother were aggressive and angry.
She was asked if her family faced any problems from anyone else after she got divorced. She stated that her in laws tell everyone that when your daughter comes they will fix her and they say that she has to come back.
The tribunal noted that it appears that part of the marriage agreement was the arrangement that her husband will come to Australia with her and that he and his family were upset when this did not eventuate. It noted that her husband initiated the divorce, her parents have paid back whatever money was given by her in laws and her husband and in laws have not harmed anyone. It put to her that, in those circumstances it may not find there is a real chance or risk that she would face any serious or significant harm from any of them. The applicant referred to threats made against her.
The tribunal put to her that while there were incidents of violence amongst families of couples including where couples divorce, it did not appear to be the case that every family of a wronged spouse kills or harms the offending spouse and it may find on the circumstances in her case that there was no real chance or risk that her husband and in laws would actually do so. She advised that she is scared because they are saying they will do it and she has her whole family with her. Her husband claimed that he would kill her and called her a bitch. That was in 2012 during their last conversation. The tribunal noted that this was three years ago. She advised that she has tried to contact him to try to get back together. The tribunal put to her that it had concerns about her trying to contact her ex husband and wanting to get back together when she is claiming that he has threatened her and wants to kill her. She advised that she does not want to give more tension to her parents.
The tribunal asked her about comments she made to compliance in 2013 where she said that she had no fears of returning to India. She claimed that she said she had no concerns about her parents but that she feared for her husband. When it was put to her that the decision record does not indicate that she said anything like this, she claimed that maybe it is due to her English.
The tribunal referred to the decision record indicating that in another ministerial intervention interview in February 2014 she claimed she heard that her ex husband was marrying someone else. She stated that she said no such thing; it could be a misunderstanding.
The tribunal referred to her evidence to the department of ‘blank calls’ or calls from private numbers where she claimed she could hear background noises of her husband and in laws. She advised that she did not pick the phone. Two or three times she did not pick up and they disconnected. The tribunal put to her that it was having difficulty understanding her vague evidence and that it had concerns about the credibility of her evidence.
She advised that she is telling the truth, sometimes her English is not good and she gets confused.
She was asked why she waited so long until seeking protection. She thought that everything would be ok if she was on her student visa or she would go back but her problems continued. The tribunal noted that it was well over a year after her divorce that she lodged protection. She advised that she thought that she would try to sort things out but her parents said that her in laws were very angry.
She was asked what she thinks they would do to her if she goes back. She claimed that they could do anything. There are a lot of things that happen to women. The tribunal noted that the evidence before it did not suggest that all divorced women faced harm from their inlaws and again referred to her husband having divorced her and his family getting their money back. It noted that on one view her marriage could be seen as a business transaction (ensuring her husband’s travel to Australia) that did not work out. It questioned whether her husband and his family’s honour would be shamed in light of the circumstances. The tribunal put to her that it did not believe that all Indian families would harm their daughter in law or did so. The applicant referred to the way that her husband and his family have reacted.
Her family are aware of her current situation and child. They were angry at first but are now supportive. They continue to send her money. She speaks to her family at least once a week.
When asked again if she had any other fears, the applicant referred to being a single lady and that it is hard to marry again. She already divorced with someone. She cannot stay long with her family because it is tradition that the woman leaves the house once she marries. In their culture a girl cannot live inside the house for long. It is hard to accept divorces there. If and when her parents die, she cannot rely on her brother; his has his own life with his family. The tribunal noted that her fears were somewhat generalised and speculative and that her evidence did not appear to indicate that her brother would not support her.
The tribunal asked her how her life will be hard if she returns. She claimed that if she goes there she has to go out of the house and her husband can harm her anywhere. As long as her parents are alive she can stay there but she does not expect anything from her brother. The tribunal put to her that while it may accept that her situation would not be the norm, it did not appear that single divorced women or with children faced serious or significant harm, nor did her evidence suggest that she would face it.
Given that the applicant referred to not being able to go anywhere else several times, the tribunal discussed the issue of relocation to her. It put to her the following matters:
a.There is a very high rate of mobility in India and no requirement to register with police upon moving areas;
b.India’s large population including several urban areas with populations in the millions;
c.It may find in those circumstances that her ex husband and his family would be unlikely to find her if she relocated and may find that they would not be motivated to do so
d.It noted that she is well educated and has several years of work experience in India. It noted that she has claimed to speak English and Hindi, India’s two national languages, and that she speaks Punjabi which is widely spoken in Delhi.
e.It referred to the DFAT country report’s comments that single women and women with children may face difficulties relocating due to the need to provide details of their husband or father’s name to access government services and accommodation and noted that in her case, she has the support of her father and that this would not be a problem. It put to her that DFAT assesses that despite such difficulties millions of Indians successfully relocate every year.
She advised that first of all she and her husband have common relatives; someone will come to know where she is. It will be easy for them to find her. It is difficult for a single lady to relocate somewhere else; her father will support her but they do not look at you respectfully. She will struggle a lot in her life.
Findings and reasoning
The issue in this case is whether the applicant is owed protection obligations in Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The tribunal accepts on the basis of the applicant’s passport that she is an Indian citizen and has assessed her claims against India as the country of reference.
The tribunal found various aspects of the applicant’s evidence (discussed below in further detail) regarding threats and behaviour of her ex husband and former in laws to be vague and inconsistent, leading to concerns that she has exaggerated the harm she fears at the hands of these individuals. For these reasons, the tribunal finds some aspects of the applicant’s claims to lack credibility.
The tribunal accepts that, prior to the grant of her student visa, the applicant entered into an arranged marriage with [Mr A][in] April 2009. It accepts the applicant’s account of her husband’s two invalid attempts to apply for a visa to join her, apparently due to the applicant not informing the department of her marriage to [Mr A] prior to the grant of her original student visa. Although the applicant’s evidence regarding timing was somewhat vague, the tribunal accepts that the applicant and her husband applied for student visas in 2010, which led to the applicant being granted a further student visa that expired in August 2011 (not October 2011 as her previous visa) and to her husband’s visa application being refused.
The applicant has claimed that her failed attempts at bringing her husband to Australia led to accusations against her from her husband and his family that she did not want him to come to Australia and has brought shame upon the family as well as threats and harassment to her family.
The tribunal accepts that [Mr A] and his family may have been upset by the unsuccessful attempts for [Mr A] to obtain a visa to Australia. It accepts as plausible that they may have accused the applicant of not trying hard enough to bring [Mr A] to Australia and visited the applicant’s family home to discuss this with her family on more than one occasion after the failed attempts to secure [Mr A] a visa. It accepts that the applicant’s family, with the ‘middle man’ who arranged the marriage also went to her in law’s home to discuss the situation. It is willing to accept as plausible that around this time [Mr A] and his family may have accused the applicant and her family of making them lose face. It further accepts on the basis of the incomplete divorce petition submitted that [Mr A] divorced the applicant [in] September 2012.
The tribunal is willing to accept as plausible that the applicant’s in laws demanded repayment of funds provided to the applicant at the time of her marriage including payment of her plane tickets to Australia and money spent on the wedding. She claimed at one stage in her hearing that ’50-60 people’ came to her parents’ home demanding money back yet at other times at the hearing she referred to her in laws coming with ‘someone’ and ‘a few people’. The tribunal accepts that other people may have accompanied [Mr A] and his family to the applicant’s family home to discuss the situation though it finds her claim that 50-60 people accompanied them to be greatly exaggerated given her differing evidence on this. Similarly, the tribunal accepts the applicant’s family took people with them, namely the marriage middle man, when they went to speak with [Mr A]’s family.
The applicant further claimed that during that visit there was pushing and shoving at the hands of [Mr A]’s brother but did not state who was pushed or shoved, nor did she indicate that anyone was injured. Given the vague nature of the applicant’s evidence, while the tribunal accepts that [Mr A] and his brother may have been upset and angry, it does not accept that they were aggressive towards the applicant’s family or any such pushing or shoving occurred.
In any event, the applicant’s evidence is that these funds were repaid to her former husband’s family after approximately 1-1 ½ years. By this calculation, the applicant’s family would have repaid [Mr A]’s family the money by early 2014. The applicant has not made any claims that anyone in her family was injured when [Mr A]’s family came and demanded their money back or that anyone faced any physical harm afterwards. While the tribunal is willing to accept that the applicant’s grandmother died in May 2014, it does not accept on her vague and implausible evidence that her grandmother died from stress caused by [Mr A]’s family. The tribunal finds it difficult to accept that the applicant’s grandmother would actually die from stress simply because [Mr A]’s family allegedly visited the family home and made verbal threats against the applicant. In any event, as discussed below, the tribunal has not accepted that any such threats from [Mr A] or his family have occurred. Given concerns about the applicant’s credibility in relation to threats from [Mr A] and his family, the tribunal does not accept that her father was hospitalised for stress resulting from having to pay money back to [Mr A]’s family given that the applicant has not provided any details about this alleged hospitalisation such as when it occurred.
The applicant’s evidence regarding the alleged threats and harassment made by [Mr A] and his family towards her and her own family are vague, confused, inconsistent and exaggerated.
For example the applicant has provided inconsistent evidence about threats and harassment to her from [Mr A]. In her evidence to the department, she claimed to have received many ‘blank calls’; the decision record indicates that in interviews with ministerial intervention officers the applicant referred to these as calls from private numbers which she believed to be coming from her inlaws due to background noises she heard. The decision record further notes that the applicant claimed these calls occurred around the time of her divorce in 2012. However, in her evidence to the tribunal, she claimed that [Mr A] called her two or three times around the time or after the divorce but she did not pick up. She did not make any reference to receiving phone calls she believed to be from his family and did not claim to have had any other contact from his family. The applicant did not provide any explanation for this inconsistency. She did however refer to her English not being good and getting confused. The applicant has been in Australia studying in English since 2009, advised in her protection application that she did not require an interpreter and at various times throughout the tribunal hearing chose to speak in English, which she appeared competent in, even though the applicant requested a Punjabi interpreter at her tribunal hearing and had one made available to her. The tribunal is not satisfied on the evidence before it that the applicant’s English skills resulted in the inconsistencies noted in this paragraph or in any of her other evidence.

Furthermore, while the tribunal has before it evidence that the applicant was experiencing pre-natal depression and psychological stress related to her pregnancy in August 2015 (which formed the basis for a request to postpone her original hearing date), the applicant has not provided any medical evidence suggesting that she was suffering from any mental health issues at the time of her hearing. The letter from her GP of 21 September 2015, forming the basis of her second request for a hearing postponement, merely referred to the applicant’s physical health at the time. The applicant appeared to understand the tribunal’s questions and respond accordingly. The tribunal is satisfied that she was able to meaningfully participate in the hearing. The tribunal does not accept that the reasons given by the applicant adequately explain the inconsistencies in her evidence. The tribunal reasonably expects the applicant to be able to accurately recall harassment she claims she was receiving from [Mr A]’s family.
The tribunal further finds the applicant’s evidence at the hearing regarding her behaviour towards [Mr A] confusing given her claim to fear harm from him and his family. While she has claimed that [Mr A] has made threats to her brother by telephone and that his family have threatened to kill her if she returns to India, she has also claimed that she kept telling [Mr A] and his family that she would keep trying to get him a visa when he wanted to divorce her. She further claimed that she has tried to contact [Mr A] in order to get back together and tell him she did not want a divorce and that she advised her parents to try to ‘patch things up’ with [Mr A] and his family. The tribunal finds that this behaviour is not consistent with the applicant’s fear of [Mr A] and his family and in light of this and concerns with her credibility, gives little weight to the applicant’s claim that she did this to ease tension for her parents.
The applicant’s evidence about threats allegedly made by [Mr A] and his family were vague and lacked detail. For example, she claimed that [Mr A] said they can ‘do anything’ to her if she returns. She referred to phone calls made by [Mr A] to her brother but was not able to specify when they occurred or what specifically was said. She claimed that [Mr A]’s family came to her parents’ home in 2014 and blamed her for not bringing [Mr A] to Australia but was unable to provide further details such as a more specific date when that occurred or any further specifics of what threats were allegedly made.
The applicant has claimed that her ex husband and his family have also accused her of shaming and dishonouring the family because of the divorce. The tribunal finds this difficult to accept on the evidence before it given that it is the applicant’s husband, [Mr A],who applied for the divorce. The applicant’s evidence in relation to this was somewhat circular at hearing. When asked about this, she claimed that ‘in society’ they are saying that she is the one who divorced [Mr A] because of her perceived refusal to bring him to Australia. When asked who was saying this, the applicant referred to [Mr A] and his family. The tribunal finds it difficult to accept, if [Mr A] and his family felt dishonoured by the applicant, they would tell others that she had effectively divorced him by not bringing him to Australia when in fact it was [Mr A] who officially divorced the applicant.
The tribunal also finds it difficult to understand why [Mr A] and his family would continue making such threats against the applicant given the events that the tribunal accepts have occurred. [Mr A] has taken action to cut ties with the applicant and her family by successfully applying for a divorce. His family has asked for and received compensation for money given to the applicant. The applicant claimed at one stage at the hearing that his family wanted an answer (as to why she was not bringing [Mr A] to Australia) or their money returned. It appears that their money has indeed been returned. The decision record refers to comments made by the applicant to ministerial intervention officers that she heard [Mr A] had met someone else. Given the tribunal’s concerns about the applicant’s credibility, it gives little weight to her evidence that this is not true and the result of a misunderstanding. It unclear from her evidence how the alleged loss of face, shame or dishonour to [Mr A] and his family has actually affected them. The applicant has not provided any clear or credible evidence as to why [Mr A] or his family would continue to make threats directed at her or her family or would take steps to harm her upon her return to India.
In this regard, the tribunal also notes that the evidence before it does not suggest that there is a real chance or risk that [Mr A] or his family would resort to violence. As noted above, the applicant’s family members have not been harmed by [Mr A] or his family. The applicant gave very vague evidence about her husband having some problem with his paternal uncle. The tribunal does not accept that this vague evidence supports her claim of [Mr A] and his family being prone to violence.
The tribunal’s concerns about the applicant’s fears are supported by the delegate’s decision record, which sets out her comments at a ministerial intervention interview in 21 June 2013 that she did not have fears of returning to India. At the hearing, the applicant claimed that she misunderstood this and thought that the officer was asking about support from her parents and claimed that she stated that she did fear her husband, noting that the discrepancy may be due to her English. Her version of what she claims she said does not appear to be reflected in the summary set out in the decision record of that ministerial intervention interview. Given the tribunal’s concerns about the applicant’s credibility and exaggeration of her claims, the tribunal gives greater weight to the decision record summary of that interview over the applicant’s interpretation of that exchange and does not accept that this discrepancy is due to her English skills.
The applicant’s delay in seeking protection for approximately 18 months after her divorce further adds to the tribunal’s concerns about the credibility of her claims. The tribunal found the applicant’s evidence as to why she waited so long to seek protection to lack credibility and clarity, particularly in light of her vague and undetailed claims about threats and harassment that occurred after her divorce to [Mr A].
Having regard to the concerns set out above, while the tribunal accepts that there was tension between the two families in the past due to [Mr A]’s inability to obtain visas to Australia and the applicant’s perceived unwillingness to make this happen, the tribunal finds that this dispute has now been resolved following the couple’s divorce and repayment of monies to [Mr A]’s family. Given its concerns, the tribunal does not accept that [Mr A] or his family members have made threats to the applicant, her brother or other family members either in person or via phone calls. Specifically, the tribunal does not accept that her in laws have blamed the applicant for losing their place in society or accuse her of having left [Mr A] and that they cannot marry him again, that they told the applicant’s parents if she returns they will not allow her to marry, will not spare her, will kill or ‘fix’ her or that since the end of the dispute they have accused the applicant of spoiling [Mr A]’s life. For the reasons set out above in relation to concerns about the applicant’s evidence about threats, the tribunal does not accept that [Mr A] told her he would kill her, that he or his family can do ‘anything’ to her or that he called her a bitch during their last phone conversation. Given concerns about the credibility of the applicant’s claims on this matter, the tribunal does not accept that [Mr A] called the applicant’s brother while he was drunk and accused the applicant of spoiling his life or that her brother continues to get phone calls. Given its concerns regarding the applicant’s evidence on this matter, the tribunal does not accept that her parents have continued to be harassed after the divorce and repayment of money. Due to its assessment of the applicant’s credibility, the tribunal further does not accept that threats and harassment from [Mr A] and her in laws prevented the applicant from visiting her family in India.
Given the concerns set out above, the tribunal does not accept that people known to both families accuse the applicant of dishonouring or shaming [Mr A] and his family or of losing the family’s place in society.
Future chance/risk of harm
The tribunal has considered the chance and risk of harm that the applicant would face from [Mr A] and his family, given its findings above.
The tribunal does not accept on the country information discussed with the applicant at hearing that Indian tradition and culture gives husbands and in laws the right to kill women in their families for shaming and dishonouring them. The tribunal does not accept that some incidents of violence against women by their husbands and/or in laws due to perceived dishonour indicates that such practice is condoned by Indian tradition and culture or that there is a real chance or risk of it occurring to all women who are perceived to have shamed or dishonoured their husband or in laws, regardless of their circumstances.

100. Having regard to its findings above, namely the tribunal’s finding that the dispute has been settled and its rejection of threats or harm from [Mr A] or his family directed to the applicant or her family, the tribunal does not accept that there is a real chance of serious harm or a real risk of significant harm to the applicant or her family from [Mr A] or his family because she has brought shame, dishonour or loss of face to them because of failed attempts to obtain a visa for [Mr A], the couple’s divorce or any other reason. The tribunal does not accept on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm as a member of the particular social group of ‘divorced women who are perceived to have compromised family honour’, which it is willing to accept exists for the purpose of this decision. The tribunal does not accept on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm to the applicant at the hands of [Mr A] and/or his family for any reason including her perceived failure to bring [Mr A] to Australia, as a divorced single woman and/or because she has since had a child out of wedlock. The tribunal further does not accept on the evidence before it and for the reasons given that there is a real chance of serious harm or a real risk of significant harm to the applicant’s daughter at the hands of [Mr A] or his family.
101. The tribunal notes that the applicant would be returning to India as a divorced single mother to a child born out of wedlock and has considered whether she would face a risk of harm as a result of that profile from anyone else. At the hearing the applicant did not identify any particular threat or person she feared but made reference to facing difficulty to marry again as a divorced woman and to tradition dictating that a woman must leave the house once she marries and cannot live in the family house for long.
102. The tribunal has had regard to information indicating that divorce rates in India are among the lowest in the world,[1] that divorce carries a strong stigma in the applicant’s home province of Punjab, particularly in small villages.[2] Some of the reported challenges faced by divorced women in India are financial,[3] estrangement from their family members and harm from their former husband’s family.
[1] DFAT Country Information Report: India (14 July 2015).
[2] Page, J. 2007, ‘Married and abandoned – the 30,000 wives “dumped by Westerners”’, The Times, 24 February Accessed 24 November 2010.
[3] Bhatty, K. 2008, ‘Falling through the cracks, The Hindu, 16 March.
103. In relation to single or unwed mothers, an Indian legal expert wrote that “…most separated or deserted women, usually along with their children, are forced to live with members of their natal family, such as parents and brothers, and are financially dependent on them. Often, they are not welcome even there and live as outcasts in the family.[4] Another report suggests that unwed mothers have a greater social stigma than those who once were married: the stigma attached to bearing a child out of wedlock is “always much more” than that attached to abandoned marriages.[5]
[4] An Indian legal expert in a 2010 Frontline article which notes that, at the time of writing, the author was a senior advocate of the Supreme Court, a former member of the Law Commission of India, and the legal convener of the All India Democratic Women’s Association. See Singh, K 2010,’Left in the lurch’, Frontline, 27 March – 9 April < Accessed 24 November 2010.
[5] Ansari, H 2011, ‘Surviving as a single parent’, DNA Sunday ((Diligent Media Corporation), 2 January.
104. The tribunal has considered the above country information in light of the applicant’s circumstances. It accepts that the applicant’s situation would be uncommon, that she may have difficulties remarrying and that she may face some social stigma as a divorced woman and a single mother to a child out of wedlock if she [returns]. However, it also finds that she has a family who are both emotionally and financially supportive of her and finds that they will continue to support her if she were to return to India. The applicant indicated that she and her child will be able to live with her parents as long as they are alive, despite her claim that Indian culture dictates women leave the home after marrying and cannot live in the family home for long. While the applicant claims that she would not be able to rely on her brother once her parents die, she was unable to explain why she believed her brother would not support her after her parents’ deaths apart from claiming that he has his own life. The tribunal finds the applicant’s evidence on this matter speculative and does not accept that her brother would not support her.
105. While the tribunal acknowledges the above country information regarding social stigma attached to divorced women and particularly women who have children out of wedlock, the tribunal does not accept on the evidence before it that any stigma that the applicant may face would amount to serious harm or significant harm, particularly given that the applicant’s family has and will continue to support her. The applicant’s own evidence indicates that her concerns are focused on what would happen if she had to leave her parents’ home, which the tribunal does not accept there is a real chance or risk of occurring in the reasonably foreseeable future. Having regard to the applicant’s particular circumstances, the tribunal does not accept that she would face a real chance of serious harm, or a real risk of significant harm due to being a divorce woman and/or a single mother to a child out of wedlock.
106. Given its findings above including that the applicant and her daughter will have the support of the applicant’s family if they return to India, the tribunal further does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from the impact of any social stigma that her daughter may face as a child of a divorced single mother and/or born out of wedlock.
107. Having regard to the evidence before it, the tribunal does not accept that there is a real chance that the applicant will face serious harm at the hands of [Mr A], his family or anyone else as a ‘divorced woman perceived to have compromised family honour’, as a divorced woman and/or single mother and/or having a child out of wedlock or for any other Convention grounds. The tribunal is therefore not satisfied that the applicant’s fear of persecution is well founded.
108. The tribunal is further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will face significant harm as a ‘divorced woman perceived to have compromised family honour’, as a divorced woman and/or single mother and/or having a child out of wedlock or for any other reason.
109. 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).
110. 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).
111. 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
112. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Magda Wysocka

Member

[2015] AATA 3985

15 December 2015

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