1418428 (Refugee)

[2016] AATA 3117

1418428 (Refugee) [2016] AATA 3117 (19 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418428

COUNTRY OF REFERENCE:                  India

MEMBER:Tania Flood

DATE:19 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2016 at 11:38am

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] February 2014 and the delegate refused to grant the visa [in] October 2014.

3. The applicant appeared before the Tribunal on 8 January 2016 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

10. The issues in this case are 1) whether there is a real chance the applicant will face serious harm if he returns to India for reason of entering into an inter-religious, inter-racial marriage and/or for being perceived as a person who has converted to Christianity; 2) whether there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if removed from Australia to India.

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

    Summary of claims

12. In his application for a Protection visa the applicant makes the following claims:

13. He left India in 2007 and came to Australia as a student [in] September 2007.  He always wanted to go overseas and expand his experiences but his family who live in a small [village] in the state of Haryana, were against his decision to leave India.

14. On arrival in Australia he found it hard to settle in a course but eventually found a passion for [subject].  An agent irresponsibly handled his application for a TRA and did not communicate the outcome of the application on time and his visa expired.  During the difficult time that followed, when he was depressed, he met his [wife] and they were married [in] May 2013.  He is trying to put his life together, having lost the support of his family who turned against him and disowned him when they learnt about his marriage to a Christian.  He belongs to an orthodox Hindu family.

15. He has not been back to India and is fearful of what might happen if he returns. His parents are extremely angry with him.  His father and [relative], who is a respected [occupation], have not been able to work in the village because of the news of his marriage.  They have been threatened by the village panchayat that if he ever returns they will have him murdered.  His father and [relative] have stopped talking to him and are threatening to beat him and kill him and his wife because he has married out of race and has left the religious ways of his family and started eating beef and other non-vegetarian food and drinking alcohol.  In Haryana marrying outside of caste is totally forbidden, let alone that he has married a Christian and beef eater.  His family does not want him back due to their anger and fear of their safety in the village.   There are many instances of honour killings. 

16. In a post-hearing submission dated 11 January 2016 it is submitted that the applicant is a person to whom Australia has protection obligations as he has a well-founded fear of suffering persecution for Convention reasons if he returns to India for cumulative reasons:  imputed religious conversion to Christianity; membership of particular social groups – persons defying the enshrined traditional and cultural views; Indian male facing honour killing; Indians who are considered as transgressing traditional Indian customs and values; Indian male who has entered into an inter-religious and inter-racial relationship; Indian male defying family tradition of arranged marriage. The applicant is also owed protection under the complementary protection provisions for these reasons.

17. It is further submitted that there is no meaningful option to relocate or obtain effective protection from the Indian authorities.  Various country information sources are referenced attesting to the prevalence of honour killings in India, the inadequacy of state protection mechanisms in India for locating persons of interest.

18. Attached to the submission is a copy of the applicant’s marriage certificate and photographs from his wedding.

    Independent country information

    Marriage practices

19. In 2015 the Department of Foreign Affairs and Trade (DFAT) stated that arranged marriages continue to account for the overwhelming majority of marriages across India.  Parent and/or significant family members are often solely responsible for making a decision about who children marry, particularly in north India.  Many parents consider arranging a marriage for their children a right and a duty, and may not accept modern marriage practice such as a son or daughter choosing their own spouse.[1] 

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

20. According to Dr Lizy James Indian parents usually insist on caste and religious endogamy when choosing a spouse for their children.[2]  Societal attitudes towards interreligious couples are generally not favourable and societal attitudes often cause people to ostracise and discriminate against such unions.[3]  According to Hinduwebsite.com, couples engaging in unconventional marriage, including interreligious marriage, are less likely to experience acute social pressure in metropolitan and urban areas, and if their parents are educated.[4]

    Honour killings

    [2] James, L 2010, ‘Marriage in India’ in G Thomas (ed), Introduction to Family Life Education Vol II, Indira Chandi National Open University, New Delhi, October.

    [3] Immigration and Refugee Board of Canada 2006, INDI00661.EX – India: The situation of couples in inter-caste and inter-religious marriages, including societal attitudes, treatment by government authorities and the situation of children resulting from such marriages (2000-2005), 9 January.

    [4] Jayaram, V nd, ‘Hinduism and Marriage’, Hinduwebsite.com

21. In 2015, DFAT stated that “So-called honour killings” committed by families and communities of those involved in inter-faith and inter-caste relationships, are particularly prevalent in villages and small towns in north India.  It is estimated that at least 1,000 honour killings take place each year in India.[5]

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

22. An April 2011 BBC News report states that honour killings relating to inter-religious marriage have occurred in the “deeply conservative and patriarchal” Punjab, Haryana and Uttar Pradesh states.  Some village caste councils or khap panchayats, have been responsible for decreeing or encouraging honour killings and other forms of mistreatment of couples of different castes and religions who either have married or wish to do so.[6] 

    [6] India Court calls for ‘stamping out honour killings, 2011, BBC News.

23. A content analysis conducted by Deol on honour killings in Haryana State indicates that Haryana is one of the regions where honour killings occur more frequently.  Further, the analysis notes that 74% of honour killings in Haryana occur in the Jat dominated region which includes ten districts, including Fatehabad. The analysis also reveals that overwhelmingly, honour killings are executed by family members of the accused, with the male members of the family, including fathers and brothers being the main culprits.[7] 

    [7] Deol, Honour Killings in Haryana State, India: a Content Analysis, 2014

24. USDOS also noted in 2014 that, up to 10 per cent of all killings in Punjab and Haryana were honour killings, some of which were sanctioned by village councils or khap panchayats.[8]

    Christianity

    [8] US Department of State 2014, Country Reports on Human Rights Practices 2013 – India, 27 February.

25. In 2015, DFAT[9] reported:

    Section 15 of India’s Constitution prohibits discrimination against any citizen on the grounds of religion.  Section 25 guarantees the right to freely profess, practise and propagate religion, and section 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs.  According to the US State Department’s 2013 report on International Religious Freedom in India, the Central Government generally respected religious freedom.

    Although the complexity, diversity and sheer size of India makes general observations difficult, DFAT assesses that overall there is a low level of discrimination on the basis of religion. 

    The majority of cases of communal violence in India since partition have involved Hindu and Muslim communities. 

    According to the 2001 Census approximately 24 million Indians identified as Christian, making Christianity India’s third-largest religion.  There have been a large number of prominent Christian Indians, including former and present Chief Ministers and State Governors.

    There have been recent reports that right-wing Hindu organisations allied with the BJP have begun conducting “homecoming” ceremonies in which Christians and Muslims are “re-converted” to Hinduism (on the basis that Hinduism is their ancestral religion).  Some participants in these ceremonies have allegedly been threatened with violence if they did not participate. 

    Christians have generally co-existed peacefully with members of other religious groups in India.  While some instances of violence are reported, in totality these represent a moderate risk of social discrimination and violence.  Generally speaking most Christians can go about their lives without incident.

    State protection

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

26. In 2015 DFAT, quoting a 2009 report by Human Rights Watch, stated that the capacity of India’s police forces is limited by poor infrastructure, insufficient personnel, inadequate training, poor living conditions for low-ranking officers, insufficient remuneration and a lack of training and equipment to conduct their duties.  India also has relatively few police officers per capita – 129 per 100,000 people, compared to a global average of 350.  Allegations of human rights abuses carried out by police in India are frequent.[10]

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

27. Indian law which could provide protection against religiously oriented violence such as ‘honour killings’ is not always effectively enforced by police.  In 2010, USDOS reported that “due to a lack of sufficiently trained police and elements of corruption, the law was not always enforced rigorously or effectively in some cases pertaining to religiously oriented violence”.[11]

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

28. Human Rights Watch has alleged in the past that “police routinely fall to investigate apparent ‘honour’ killings. Further, it is reported that there has been an increase in honour killings in the northern Indian states of Haryana, Punjab and western Uttar Pradesh.  There were also cases reported that incidences of honour killings involved khap panchayat edicts issued against inter-religious and inter-case couples, and that some local politicians and officials have been sympathetic to the councils’ edicts, implicitly supporting the violence.[12]

    [12] Human Rights Watch 2010, India: Prosecute Rampant ‘Honor’ Killings, 18 July

29. Notwithstanding the above, according to the Indo-Asian News Service, in 2011 the Punjab and Haryana High Court ordered both states to “provide shelter homes to runaway couples who marry against the wishes of their families, caste or community and asked police to provide them with security”.[13]  Further, in May 2011, India’s Supreme Court ruled that the perpetrators of honour killings should be given the death penalty.[14]

    Relocation

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

    [14] ‘Call in India for stronger stand against honour killings’, 2011, ABC News, 20 May

30. According to its most recent 2011 census, India’s population was approximately 1.21 billion[15] in some 27 million towns and settlements, and the largest 8 cities have been 4 and 12 million people in each.[16]

    [15] DFAT Country Information Report, India, 2015

    [16] >

    In 2013, USDOS stated that Indian law provides for freedom of movement within the country, and the government generally respects this in practice.[17] 

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

31. In 2010, the UK Home Office stated that there are no checks by authorities on newcomers arriving from another part of India; local police “have neither the resources nor the language abilities to undertake background checks on individuals relocating within India”.  Furthermore, there is no registration system for citizens.[18]

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

32. In 2015, the UK Home Office quoted Country Guidance to the Upper Tribunal, which stated that “the possibility of the police, or any other person or body, being able to locate, at the behest of an individual’s family, a person who has fled to another state or union in India to be remote”.[19]

    [19] UK Home Office, “Country Information and Guidance: India: Background information, including actors of protection and internal relocation, 6 February 2015

33. Hindi, one of the two official languages, the other being English, is the majority language in India spoken by 41 per cent.[20]  According to the Encyclopaedia Britannica Online, Hindi is spoken as a first language by approximately 425 million people across India, and as a second language by an additional 120 million.[21]  Although only a relatively small number speak English as their first language, an estimated 125 million people speak English as either a first, second or third language.

    [20] DFAT Country Information Report, India, 2015

    [21] Encyclopaedia Britannica Online, Hindi language

34. In 2015, the World Bank reported that the Indian economy grew 7.4 per cent in 2014 and is likely to grow at 6.4 per cent in 2015.[22]

    [22] >

    In 2015, DFAT reported that in practice, internal location can be limited by a range of factors but that despite some difficulties millions of Indians successfully relocate within India either temporarily or permanently every year…. In general DFAT assesses that there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence.[23]

    1950 Treaty of Peace and Friendship between India and Nepal

    [23] DFAT Country Information Report, India, 2015

35. Article 7 of the international bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950 provides that Indian nationals can enter and reside in Nepal on the basis that:

    “ the two governments agree to grant on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership or property, participation of trade and commerce, movement and other privileges of a similar nature”.

36. Further, an RRT country advice of 8 January 2014 indicates that no information was located indicating that there are any practical barriers for Indian citizens travelling to Nepal with appropriate identification documents.

    Country of reference

37. The applicant claims to be an Indian national.  Based on the copies of his passport, the Tribunal finds that India is his country of nationality for the purposes of the Convention and also the receiving country for the purposes of s.5 and s.36(2)(aa) of the Act.

    Assessment of claims

38. The applicant was broadly consistent about his individual circumstances in India and Australia at the Tribunal hearing.  Further his evidence is also broadly consistent with the independent country information set out above, that indicates that friction in inter-family and community relations may occur in relation to contravention of traditional marriage practices such as independent choice of marrying partner and inter-religious, inter-caste marriage.  His evidence was also broadly consistent with country information which indicates that Haryana has a high rate of honour killings often perpetrated by family and sometimes under directions from khap panchayat in response to perceived shame arising from contravention of marriage practices.

39. Based on his evidence, the Tribunal accepts the applicant’s family is from a conservative area in rural Haryana.  The Tribunal has some reservations about the genuineness of the applicant’s marriage, based on observations including the young age of the applicant’s wife ([age] years old at time of marriage), the short period of time between them meeting and marrying (approximately 5 months), and the apparent lack of family and friends from the brides side in any of the wedding photographs provided to the Tribunal.  However, based on the Certificate of Marriage [from] May 2013, and the consistency of the applicant’s oral evidence regarding his living arrangements, the Tribunal accepts for the purpose of this review, that the applicant married [his wife] as claimed.  The Tribunal is satisfied the applicant’s parents were informed of his intention to marry but accepts the marriage took place without the permission or approval of the applicant’s parents. The Tribunal also accepts, on the country information before it, that, the state of Haryana has a high rate of honour killings arising from contravention of traditional marriage practices.

1. The applicant claims that his marriage is an inter-religious marriage because he is Hindu and his wife is Christian.  At hearing, the applicant confirmed his religion is Hindu.  When questioned about his wife’s Christianity he said that she has only ever rarely attended a church.  Based on his evidence the Tribunal has concluded that while his wife may nominally be Christian she is not a practicing or devoted Christian.  The Tribunal put this to the applicant at hearing with his response being that people would still assume she is Christian. The question of the applicant being perceived to have converted to Christianity is addressed below.

2. When asked why he could not return to India the applicant initially said he was scared of returning to his village because his family and other villagers may bash him or kill him.  When questioned in more detail about this he stated that he doesn’t know what will happen to him on return or who will harm him, but his father warned him “not to show his face and never to come back;  that it’s too dangerous to come back as his marriage won’t be accepted”.  The Tribunal put it to the applicant that it appears, contrary to his claims, that, his father is trying to safeguard him from harm. 

3. On the evidence and information before it the Tribunal accepts that the applicant’s family have expressed their disagreement with the marriage and may even ostracise him as a result of it.  However, having regard to guidance about what constitutes serious and significant harm, the Tribunal finds that in the event the applicant was ostracised by his family this would not constitute serious or significant harm.  

4. Notwithstanding the above, the Tribunal does not accept the applicant’s family are motivated to physically harm or kill him for the reasons claimed.  Despite his written claim that his father and [relative] are threatening to beat and kill him, as noted above, the Tribunal finds it significant, and has given weight to the applicant’s oral advice at hearing, that his father warned him not to return to the village.  The Tribunal does not accept he would have done this if it was his intention to personally harm him or his wife or to instigate such harm against them from others.  

5. The applicant also claims to fear harm from his family because he has left their religious ways.  When asked to elaborate upon this he said that according to his Hindu religion he shouldn’t drink, smoke, or eat beef yet he has informed his parents that he does such things.  The Tribunal suggested it was unusual he would have admitted to such acts and indicated the fact he could have that discussion with his parents could again suggest his relationship with his family is not as strained as he claims.  He said it is normal to tell your parents these things but in circumstances where it is claimed that violence is feared, the Tribunal does not accept that response.   

6. The Tribunal asked the applicant to describe his relationship with his family before the current events and he said that his parents didn’t really like him all that much because he didn’t strictly follow their religion.  He said that he was beaten on occasion by his parents for this reason and for not achieving good results in his studies.  On the basis of his oral evidence the Tribunal accepts that the applicant may have come to some past harm, by way of beatings from his parents for transgressing religious practices and traditions.  However, the Tribunal is not persuaded that on this basis alone his parents would seek to locate and harm him if he were to return and live independently, in for an example, a metropolitan area in another state in India. 

7. Notwithstanding the above, the applicant also claims to fear harm from other people in his community, including the village panchayat.  Further, the applicant claimed at hearing that he has learnt from friends that his family have also relocated elsewhere, possibly to Delhi, indicating some possible repercussions for the wider family.   When asked why they had relocated he could not accurately say but noted that it could have been due to work difficulties.  In further discussion, he conceded it may or may not be related to the circumstances of his marriage.

8. The Tribunal has had regard to the independent country information outlined above, and the numerous news articles referenced by the applicant’s representative in the post hearing submission, concerning the situation of young people who take action counter to traditional marriage practices, including reports of reprisals such as violence and honour killings.   Given this information, together with the fact the applicant’s family have also reportedly left the village, the Tribunal accepts the applicant faces a real chance of serious or significant harm at the hands of other villagers, including elders from the panchayat, in his local village in Haryana on account of him contravening traditional marriage practices and entering into a perceived inter-religious or inter-caste marriage. 

9. Notwithstanding the abovementioned reports of the courts taking a tougher stance against honour killings in India, there is also information, including that submitted by the applicant’s representative, which indicates that the laws may not be enforced rigorously or effectively because of a combination of factors including corruption, inefficiency and in some cases collusion and sympathy with traditional values and punishment.  Considering this information, the applicant’s oral evidence and the circumstances of the applicants’ marriage, the Tribunal is not satisfied he would be able to access adequate state protection against serious or significant harm from other villagers in his local area.

10. In view of the above, the Tribunal has considered whether the applicant would be able to reasonably relocate to another area of India such as one of India’s heavily populated metropolitan areas in order to avoid harm.  It was put to the applicant at hearing that India is a vast and very populous nation and that country information does not support that anyone from his village would be able to find him in a metropolitan area in another state in India especially given information about the lack of central registries and the difficulties that even the police have in tracking down individuals wanted on criminal charges. 

11. The Tribunal notes the applicant raised the possibility of him being located through one of his [relatives] who has political connections.  The Tribunal does not accept this claim.  The applicant only raised this possibility after a break in the proceedings called to allow him to converse privately with his representative.  When asked why he only mentioned this after the break he said that he had had time to remember but the Tribunal was not persuaded by this response given the seriousness of the matters discussed prior to the break.   

12. When questioned further about [this relative] the applicant was unable to confidently explain his relationship to him, initially claiming he was a relative of his father then later contradicting this by stating the [relative] was a relative of his mother.  Despite being asked to describe his political connections the applicant was unable to do so other than repeating the claim that he was connected to other political leaders and stating that the [relative] “possibly” works in [a certain] department or “something like that”.  Given the vagueness of his evidence in this respect, the Tribunal does not accept the applicant has [a relative] who is politically connected and in any event remains unpersuaded that even if this was the case he could be located through such a person in a metropolitan area in another state in India given the country information referred to above.  In any event, the Tribunal does not accept that any of the applicant’s family will pursue him or harm him should he return to India for the reasons claimed.

13. The Tribunal has had regard to the independent country information submitted on the applicant’s behalf post hearing with respect to the Indian police’s ability to locate persons of interest in India and the availability of services from private detective agencies.  The Tribunal notes the applicant has done nothing illegal and is not accused of any crime in India and the Tribunal considers the information regarding police surveillance tools is of little relevance in the current circumstances unless it is accepted that other villagers from the applicant’s local area would be inclined to enlist the help of the police in locating the applicant.  As put to the applicant at hearing, the likelihood of this happening appears remote given he has been absent from the country for several years.  

14. In response to the above, it is submitted by the applicant’s representative that his persecutors will desperately want to teach him a lesson because he has destroyed his family’s honour by his behaviour and they will attempt to locate him to restore that honour.    While it is reported that village councils, or khap panchayats sometimes decree or encourage honour killings, reputable sources, including a highly relevant content analysis conducted on the situation within the applicant’s state of Haryana, report that such actions are more often taken by direct family members. The Tribunal has found that while the applicant’s own family may be angry and may have ostracised him, they don’t appear intent on physically harming him and therefore the Tribunal considers the possibility that other members of his village will be motivated to pursue such serious action against him remote utilising any of the surveillance mechanisms indicated in submissions.  The Tribunal does not accept that other village members would be inclined to enlist the help of the local police in locating the applicant through any of the channels suggested.  In any event the Tribunal remains unsatisfied, based on all the available information, that the Indian authorities, with the resources available to them, are able to trace the location of individuals, particularly those without a criminal past, who wish to remain undetected in India.   The Tribunal finds that the applicant could relocate to a metropolitan area in another state in Indian where there is no appreciable risk of the occurrence of the feared harm.

15. In considering whether it would be reasonable to expect the applicant to relocate the Tribunal discussed a number of relevant factors with the applicant at hearing.  For instance, the Tribunal noted that the applicant speaks Hindi, English and Punjabi, was educated to university level in India and has obtained qualifications in [two subjects] since coming to Australia.  Further it was pointed out that he has obtained relevant work experience in the [related industry] field, working as [occupation] in Australia and that he was able to move to Australia alone and establish himself in a foreign country without familial support.  In addition, it was noted that the applicant’s wife would be eligible to apply for an entry visa to India and residency on the basis of their marriage. 

16. In response to the above factors the applicant stated that he has lived in Australia for six or seven years now and has no idea what he could do if he returns to India now.  Further, he said he has no budget to go there and that his wife would not be safe there and would not be able to live in India being unfamiliar with the culture and language.  The Tribunal stated that the Indian economy is reportedly healthy and whether or not his wife accompanies him to India is a decision for them to make.  The Tribunal acknowledges that in relocating the applicant may not have family support and that his present financial situation is limited however it does not accept he would not be able to quickly find work and support himself given the factors discussed above.   

17. It is submitted by the applicant’s representative that at present employers and potential landlords need a security clearance from the police to provide employment and accommodation and in the current circumstances this means the applicant will not be able to get employment and accommodation needed to survive in India.    

18. The country information referenced in the post hearing submission does not satisfy the Tribunal that registration or security clearance is indeed required to obtain employment or accommodation in India.   For instance the reference to a Chennai police order which states that landlords should provide the police with personal information about their tenants is followed by further reports about this order being challenged in court and a subsequent order being issued that landlords should not be prosecuted for not following that edict.  Further, the reported security checks for employment appear more relevant in cases where individuals are seeking government, security or military employment which the Tribunal considers unlikely in the applicant’s circumstances given his qualifications and recent work experience which is in the [specific related] industry.    In any event, the Tribunal is of the view that the submission made in this respect suggests that such issues would arise as a result of some police involvement in a search for the applicant by his family or other community members which the Tribunal has discounted.

19. The applicant did not elaborate on why he thought it would be unsafe for his wife to live in India and the Tribunal considers it speculative that she would be systematically discriminated against or personally targeted for serious or significant harm in other areas of India, particularly as she is a married woman with a husband. 

20. It is also submitted that the applicant’s wife will be considered Christian and as a result he will be perceived to have converted to Christianity and harmed for this reason.  The Tribunal put it to the applicant that it does not appear his wife is a practicing Christian and it is therefore not clear why it would be assumed she is a Christian and/or that he had converted to Christianity.  In any event the Tribunal noted that there are reportedly 24 million Indians who identify as Christian and that DFAT[24] reports that generally speaking Christians go about their lives peacefully in India.   

    [24] DFAT Country Information Report, India, 15 July 2015.

21. The Tribunal acknowledges the reports provided by the applicant at the time of his application for a Protection visa of a reported murder of a Baptist missionary in Orissa by a mob protesting against conversions.  However, the Tribunal pointed out at hearing that it appears that his wife is at best a nominal Christian, who rarely practices her faith and that there is no suggestion before the Tribunal that she would attempt any involvement in converting people to Christianity.  Whereas the Tribunal acknowledges the information contained in the 2015 DFAT Country Information Report about “homecoming ceremonies” for Hindus converted to Christianity or Islam, the Tribunal is satisfied that the applicant still identifies as Hindu and that the risk of such an event happening to him is remote or insubstantial.  The Tribunal is not satisfied that the applicant will be seriously or significantly harmed on return to a metropolitan area in another state in India for reason of his wife’s Christianity or for it being perceived he has converted to Christianity. 

22. It is further submitted by the applicant’s representative that he will be exposed to harm in the form of severe discrimination and social stigmatisation for abandoning traditional Indian social norms and engaging in un-Indian values or activities due to his inter-faith and inter-racial marriage and that this will result in him being unable to secure an adequate standard of living.  However, the Tribunal has considered and given weight to the country information referenced above which indicates that couples engaging in unconventional marriage, including interreligious marriage, are less likely to experience acute social pressure in metropolitan and urban areas.  Based on the country information referenced above, the Tribunal does not accept the applicant will suffer severe discrimination and social stigmatisation for the reasons claimed or that he will be unable to secure an adequate standard of living for these reasons on return to India.

23. The Tribunal has found above that the applicant is not at risk of serious or significant harm from his family for moving away from his religious/traditional ways.  As to whether the applicant would face serious or significant harm from others for abandoning traditional Indian social norms and engaging in un-Indian values by eating beef, drinking and smoking, the Tribunal has searched for but not found any country information to support there is a real chance or real risk of this occurring if he relocates to a metropolitan area in another state in India.  The Tribunal is not satisfied there is evidence to support the applicant will be harmed for this reason/s.

24. Considering the circumstances, and the country information, the Tribunal finds that it would be reasonable for the applicant to relocate to a metropolitan area in another state in India to avoid any serious or significant harm he faces in his home state of Haryana. 

25. The Tribunal finds that the applicant does not have a well-founded fear of persecution in India for any reason including the cumulative reasons claimed by his representative on his behalf – namely, imputed religious conversion to Christianity; membership of particular social groups – persons defying enshrined traditional and cultural views; Indian male facing honour killing; Indians who are considered as transgressing traditional Indian customs and values; Indian male who has entered into an inter-religious and inter-racial relationship; Indian male defying family tradition of arranged marriage.

26. The Tribunal acknowledges the submissions made by the applicant’s representative post hearing regarding the reportedly deteriorating relations between Indian’s and Nepali’s in recent times but in view of the above findings has not found it necessary to consider whether the applicant has the right to enter and reside in Nepal. 

27. Having concluded that the applicant does not meet the refugee criterion of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act.  The Tribunal has considered the submissions made the applicant’s representative with respect to complementary protection, particularly the claimed risk of torture because of his inter-caste, inter-faith marriage or for breaching traditional Indian values.  However, for the same reasons outlined above, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if removed from Australia to India for any of the reasons claimed.  Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act.

28. 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

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

    Tania Flood
    Member