1501235 (Refugee)

[2016] AATA 3114

1501235 (Refugee) [2016] AATA 3114 (20 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501235

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:20 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 20 January 2016 at 4:08pm

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] August 2014 and the delegate refused to grant the visa [in] January 2015.

3. The applicant appeared before the Tribunal on 23 October 2015 to give evidence and present arguments.  

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

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

    Complementary protection criterion

15. 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’).

16. ‘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.

17. 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

18. 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

19. The applicant’s claims can be summarised as follows. The applicant, now [age] years old, from a village outside Ludhiana in Punjab, India, came to Australia to study in May 2008. She formed an on-line relationship through a social networking site with a man from Amritsar in the Punjab. In 2011, she returned to India without telling her parents and married this man although her parents had not given their consent. In 2012, the applicant returned to India, during which time she and her husband registered the marriage and she visited her family. In 2013, she provided documentation for her husband to obtain a visa to Australia as her dependent and he received the visa in September 2013. The applicant’s parents, who hold traditional Sikh values, broke off ties with the applicant in October 2013 when they learned she had married. In November/December 2013, the applicant’s husband joined her in Australia. The applicant and her husband have since separated and their relationship is finished. The applicant’s father and brother will kill her because they are humiliated that she married against their will and married someone unsuitable. They will risk going to jail to do so. The applicant fears mental torture, harassment and death at the hands of her father and brother, and whole family.

20. The applicant’s father, who has now retired, worked in connection with local government [on projects] in the Ludhiana area. The applicant’s brother lives with her parents. The applicant stated that her father does not take part in religious activities or have any community involvement. Her father has property and he does not go out.

21. The applicant came to Australia to study when she was [age] years old, immediately after completion of [school grade]. The applicant wanted a good degree and career, and independence from traditional restrictions.

22. The applicant’s father agreed to her study in Australia. She was surprised that he agreed and thought it was a miracle, but she had assured her father that she would focus on her studies, be responsible and not do anything to hurt his dignity.

23. The applicant’s father sought the assistance of an agent, who suggested that she do a course in [Subject 1]. The applicant was not keen to undertake study in [Subject 1] but she agreed, knowing that she could change course if she wanted. In Australia, the applicant changed her course to Diploma of [Subject 2] with the long term view of doing a Bachelor degree in [Subject 3]. She did not mention her change of course to her family because she thought her father would not approve of the course.

24. Once in Australia, the applicant also spoke with a lawyer about doing a degree in [Subject 3] and he advised that that this would not affect her visa.  The applicant’s father did not want her to enrol in a three year bachelor degree because he wanted her to finish the diploma first. She commenced the bachelor degree course in 2011.

25. The applicant has worked casually at times to support herself but her mother encouraged the applicant not to worry about money or employment but to focus on her study. Her mother said they would send the applicant the money she needed. They funded her study until the end of 2013.

26. The applicant has not completed the degree course because her visa was cancelled when she did not re-enrol because she could not provide the finances.   The Migration Review Tribunal set aside her visa cancellation but she did not apply for a further student visa within the required 28 days. The applicant has a “no work, no study” condition on her visa which is very frustrating and depressing because she has nothing to do and does not have funds to obtain professional support.

27. The applicant met her future husband on facebook in 2010 when he sent her a “friend request”. She does not know how he knew her. It was random. When the Tribunal explored the matter further, the applicant stated that at that time she was very religious and there was a connection; she and her future husband both belonged to an on-line Sikh religious group called [Group 1].

28. The applicant and her future husband started chatting on facebook every day and then exchanged telephone numbers and talked for hours on the phone each day. He told her he had finished [a Subject 4] degree, and the applicant believed he was quite educated, but actually this was not the case. He told her he was still studying although he was not doing anything and depended on his parents. He also initially lied to her about his caste, saying that he was the same caste as her, whereas he is from a lower caste. He later told the applicant that he said these things because he was in love and knew that her parents would not approve of him.

29. The applicant’s future husband wanted to marry her but the applicant told him that he must talk to her family and that this was not a decision she could make alone, that this was her parent’s decision.  The applicant knew that her parents wanted her to concentrate on her studies and that they wanted, in the traditional manner, to find her a husband after she had finished her studies.

30. The applicant wanted her future husband’s family to talk with her family, and told him that if she went against her father’s wishes he would not spare either the applicant or him. However, at [age] years old, she was young and immature and her husband convinced her to get married by saying that she didn’t need to tell her parents, that he would come to Australia and that her parents would not be able to do anything against her because she will be living in Australia and did not intend to return to India. At the time, she thought it was a good idea. She was in love and did not think about what her parents would do.

31. The applicant returned to India in July 2011, and stayed with her boyfriend/future husband in a hotel in Amritsar for [number] days. The applicant does not remember the name of the hotel in which they stayed. The applicant had half the money she needed for the airfare and she borrowed the rest from friends, telling them that she was visiting her parents and that it was an emergency.  She told one friend that she was not going to meet her parents but going to meet her boyfriend. Her boyfriend paid for the hotel.

32. The applicant did not see her parents and they did not know she was in India.

33. In this period, the applicant and her boyfriend took part in a Sikh marriage ceremony (four rounds of the holy book) at a Gurdwara. The applicant does not remember the name of the place where the ceremony took place; it occurred in a village somewhere around Amritsar. The ceremony took about an hour and some of the applicant’s husband’s friends attended, 4 men and 2 women and some of their aunts and uncles.

34. The applicant does not have any photographs or documentation of this event. Her husband has photos and all the documentation and the marriage certificate. At that time, the applicant did not think it was important to have any photos or documentation.

35. After the marriage ceremony, the applicant’s husband indicated he wanted them to register the marriage so he could proceed to obtain a visa for Australia. However, the applicant was scared about what she had done and worried what her parents would do if they found out. She did not want to leave the hotel in case someone saw her. After she had married, she woke up and had second thoughts about what she had done and believed she should not have done this and that if her father were to find out about it she would be finished. Her husband also agreed to wait because he needed to gather the necessary documents.

36. At the hearing, the applicant stated that she married without telling her parents because if she told them she would not be able to live with her husband. Before going to India in 2011, the applicant told her mother about her boyfriend in India. Her mother had asked many questions about him. The applicant stated that she lied to her mother, saying that she and her husband were of the same caste. Her mother was concerned that the applicant could think of a marriage with someone unsuitable and expressed concern about what the applicant’s father would do. She referred to her [female relative] who many, many years back, before the applicant was born, was killed by the applicant’s [male relatives] because she had a relationship with someone, although nobody ever found out and people thought she had suicided.

37. The applicant’s mother was worried that the applicant’s father would kill the applicant if she proceeded with an unsuitable relationship and asked the applicant to forget the relationship. The applicant agreed but she could not stop thinking about it.

38. After the applicant spoke with her mother, she thought her parents would not agree to the relationship. She knew that even if her parents said yes, they would not be meaning yes and would be thinking that once she returns to India, they would deal with her. The applicant said that if they agreed, it would mean that something was fishy and they just wanted her to return.

39. The applicant stated that she did not talk with her father about her relationship before her marriage.

40. On return to Australia, the applicant stayed in touch with her husband every day, but the applicant and her husband started having more ‘issues’ and the applicant told him that she would not apply for his visa. However, the applicant’s husband convinced her to return to register the marriage and the applicant agreed, thinking it would be good to have his support in Australia.

41. The applicant returned to India in February 2012, landed in Amritsar and registered the marriage. Originally the applicant did not plan to see her parents and she wanted to give them a surprise, so she did not tell them she was coming. She also decided she should see her parents in case they came to know she was in India.  Her mother was very happy to see her. Her father was also happy but he had some doubts about her and wondered why the applicant did not tell them she was coming. The applicant hid her passport so her father would not find out that she had been in India before.

42. The applicant stayed [number] weeks with her parents. She did not tell them of the marriage because she was scared that they would not let her return to Australia and of what could happen to her.

43. The applicant returned to Australia in March 2012. Many problems arose between the applicant and her husband and the applicant told her husband that she was not going to support his application for a visa. However, he convinced her to proceed and he obtained a visa in September 2013.

44. In October 2013, just immediately before the applicant’s husband arrived in Australia, her family found out about her marriage. She does not know how they found out. She speculated that she had downloaded her marriage certificate on to a friend’s laptop, but stated that her friend who is in Australia did not tell them.

45. Her parents called and told her they knew of her marriage. She denied it and when her parents persisted, she disconnected the phone. She spoke with her husband who advised that she confess her marriage because he already had his visa.

46. When she confessed her marriage her father was very angry, saying that in their family they had sent the applicant to a foreign country because they thought she would not do anything wrong. He said that everyone knows about her marriage and that they will be laughing at him because he always lectures them about the behaviour of their children. 

1. At that time, her father became sick and spent some days in hospital.  In a telephone conversation after he returned home, the applicant’s father said he would not send the applicant more money for fees because she had shamed him and he did not want any further relation with her. The applicant’s parents did not send her money. The applicant talked with them a number of times to ask them to pay her fees for study.

2. On his arrival at the end of November 2013, the applicant’s husband lived with his cousin for a few days in Melbourne before going to Sydney where he had friends. The applicant visited him in January 2014 and they stayed together about a month.

3. Because the applicant could not pay her fees and re-enrol for further subjects in her course, her student visa was cancelled. The applicant appealed the cancellation of her student visa which was valid until [March] 2014 in January 2014 and this was decided in her favour in May 2014. A friend [overseas] sent her [an amount] and has sent smaller amounts since. The applicant, described a series of interactions with the Department of Immigration and Border Protection which she claimed led to a miscommunication and she failed to make a student visa application within the required period of 28 days to extend her visa into further. The Department advised the applicant that she was in Australia unlawfully.

4. The applicant’s husband, who was in Australia as a dependent of her Student visa blamed the applicant for not resolving her visa status properly. When she advised her husband that she intended applying for a Protection visa, and told him that she should put his name on the application, he stated that he had his own options and would do something separately in relation to his visa. This relationship is now finished.

5. In a telephone call to her parents before she applied for the Protection visa, the applicant told them that she was having problems with her husband, and thought that they might forgive her. She asked for money explaining that she had lost her visa, had no husband and had no job. However, they said that even though her marriage was finished, she had no place in their life because, as a result of her relationship with her ex-husband, she was now worthless.

6. Neither the applicant’s father, mother nor brother have committed any crimes in the past. Her father has not threatened her himself but she knows his opinion because she has heard him talk with his friends, saying that he would kill his children if they humiliated his honour.

7. The applicant’s family have said that she had better stay in Australia because it she comes back the family will kill her even if they get caught. They could make anything look like an accident.  She does not want to die and wants to remain in Australia where it is safe.

   Country of reference

8. The applicant submitted her Indian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied that applicant is a citizen of India. The Tribunal assesses the applicant claims against India as her country of nationality and receiving country.

   Assessment of claims

9. The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm at the hands of her father, brother, family or anyone else now or in the foreseeable future because she married against family approval and humiliated them.

   Credibility

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

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

11. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

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

13. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

14. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

15. The Tribunal has also considered the Administrative Appeal Tribunal’s published guidelines in relation to credibility.

    9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.

    10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.

    11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

16. At the Tribunal hearing, the applicant stated that she had written the statement accompanying her Protection visa herself and she confirmed it was correct. The evidence provided by the applicant at the Tribunal hearing was not consistent with her application in significant ways. The Tribunal considers that some of the applicant’s claims, which have no substantiation, are not reasonably believable, and this raises serious doubts about the veracity of the applicant’s claims. Her claims were also frequently vague which led the Tribunal to question the truth of the claims. Taking these factors, which are discussed further below, into account, the Tribunal did not find that the applicant was a credible witness.

17. On the basis of statements provided by the applicant and supported by information on file, the Tribunal accepts the following:

    ·     The applicant is now [age] years old, from Punjab, India, and that she came to Australia to study in 2008.

    ·     The applicant completed a Diploma in [Subject 2] and then commenced a Bachelor degree in [Subject 3].

    ·     The applicant returned to India in 2011 for a period of [number] weeks and participated in a Sikh marriage ceremony, returning to Australia in August 2011.  She returned to India for almost a month and registered her marriage in February 2012.

    ·     The applicant’s visa was cancelled in December 2013 because she was not enrolled.  She applied to the Migration Review Tribunal for a review of this Student visa cancellation and in May 2014 the MRT set aside that decision.

    ·     The applicant failed to resolve her visa status with the Department of Immigration and Border Protection and became unlawful. She lodged a Protection visa application in August 2014.

    ·     The applicant and her husband have now separated and the marriage is finished.

18. In considering the applicant’s credibility as a witness, the Tribunal considered the applicant’s evidence at the hearing and found that she was frequently vague and evasive in her responses. For example:

    ·     At the hearing, the applicant emphasised that her father was not willing to agree to her to studying anything other than [Subject 1]. When, the Tribunal sought an explanation for her father’s views, the applicant was evasive and not able to provide any reason. The applicant presented as an intelligent and articulate person, and the Tribunal found her evasiveness in this aspect raised questions about the truthfulness of her account.

    ·     The applicant initially stated that she did not know how her husband got her name from facebook and stated that it was random. When pressed, the applicant stated that they were connected because they were both members of a group called [Group 1], an on-line Sikh religious group. The Tribunal found her evasiveness on this point raised doubts about the manner of their meeting.

    ·     The applicant could not recall the name of the hotel in Amritsar in which she stayed for [number] days. She could not recall the name of the town where she was married. The Tribunal considered these to be points that it would be reasonable to expect the applicant to be able to be recall. The applicant’s vagueness in these respects raises doubts about the veracity of her claims.

    ·     The applicant was vague in relation to timeframes connected with her relationship and her husband’s visa details. For example, she stated that it was a couple of months between her return to Australia and providing her husband with documents. When prompted later by the Tribunal, she agreed that it was over 18 months before she provided the documents needed for her husband to come to Australia.

    ·     The applicant was evasive in relation to significant issues in relation to her claims. When prompted by the Tribunal for more information, she stated that her father had fainted, became unconscious and in a critical position because of her actions, but that when he came out of hospital, she called him and said I know you’re sick but I need money. He refused because he wanted nothing to do with her. She stated that she had told the Migration Review Tribunal that she had not re-enrolled because her father had not been able to send her money for the next part of her course because he had been in hospital, and she asked a family friend to write a letter confirming this. She stated that she did not think she needed to mention why her father had not provided the money and that she had borrowed [an amount] from a friend for the course. The Tribunal found this explanation expedient and formed the view that the applicant was not reliable in her evidence in this respect.

19. The Tribunal found a number of claims to be difficult to believe. For example, while the Tribunal is willing to accept that at [age] years, the applicant may have been impressionable and in love, the Tribunal has difficulty in believing that she returned to India in 2011 using money she borrowed from friends for a clandestine marriage ceremony; and that in 2012 she returned again to India and took the very unusual step of surprising her family with a visit. As mentioned above, the applicant presented as an intelligent person, and while recognising that she was relatively young, the Tribunal finds it difficult to believe that she has no documentation at all of her marriage ceremony or registration because at the time she did not think this was important. These aspects raise serious questions about the applicant’s credibility.

20. In considering the applicant’s credibility as a witness, the Tribunal has particularly taken into account that her account of events in relation to significant details at the hearing did not accord with those she had provided in her application. At the hearing, the applicant, who is fluent in English, confirmed that she had written her Protection visa statement herself. The applicant confirmed the details were correct. The applicant’s account in her statement and at the hearing differ significantly in relation to her interactions with her father and brother. After, the applicant had presented oral evidence, the Tribunal reminded the applicant of her statement accompanying her application that:

    In 2010, I met a person… on a social networking site and then we started talking on the phone and started liking each other. I told my parents about him but they refused to get my alliance with him. I tried to convince my father and brother but they didn’t give me their permission to marry him because they didn’t find him a suitable life partner for me, and they strictly told me if I would continue my relation with him they wouldn’t spare me. … Despite knowing the fact that my parents would never accept him as my life partner, I didn’t change my mind and chose to continue my relation with him. So in July 2011, I went back to India and got married to him without my parents knowing about it… I took this decision against their wish and consent, but we didn’t register our marriage until 2012 because I was scared of my parents that if they would find out about my marriage they would kill me because they had already warned me to stay away from him.

21. In her oral evidence the applicant provided different information. She stated that in 2011, she spoke with her mother about her relationship. Her mother discouraged her from speaking with her father and she did not speak with her father or brother about her relationship; she never sought their permission or consent, and she had no word from her father that he would not accept her boyfriend. The applicant stated that she did not mention her relationship to her parents when she returned to India in 2012. She stated that she did not speak to her father about the relationship until September/October 2013 when he found out about the marriage from an unknown source. When the discrepancy in her evidence was discussed, the applicant stated that she spoke with her father about the relationship but not the marriage in 2012 and that he said marriage to this person was not possible. The Tribunal considers that the applicant’s explanation did not satisfactorily clarify the discrepancy. The applicant also said that she was stressed at the time she wrote her statement and this might account for it being inaccurate. As the applicant’s relationship with her father and brother are an important part of the applicant’s claims, and as the applicant had earlier confirmed the statement was accurate, the Tribunal would expect her account in this regard to be consistent. The lack of consistency leads the Tribunal to have serious concerns about the applicant’s credibility. On this basis, the Tribunal does not accept the applicant’s claims in relation to her family’s involvement in her marriage. The Tribunal does not accept the applicant’s claim that she married without discussion with her family and that she married without her family consent. The Tribunal does not accept that the applicant’s family first knew of the marriage in 2013 when they found out form an unknown source.

22. The Tribunal has considered all the factors above, individually and cumulatively, concerning the applicant’s credibility and finds that overall the applicant is not a reliable witness.

23. The Tribunal has also considered the applicant’s claim that her father, her brother and all her family, will kill her if she returns to India because they are strict and conservative Sikhs and that she has humiliated them because she has married without her family’s consent someone who they will consider unsuitable, noting that the applicant claimed at the hearing that her husband is not well educated and is of a lower caste than her family. In consideration of this claim, the Tribunal accepts that it is possible that the applicant’s ex-husband is less educated than the applicant and from a lower caste than the applicant. The Tribunal has also noted country information from 2015 that there is significant social pressure for individuals to marry within their own caste and that so called ‘honour’ killings where women had married against family wishes occur, especially in the north of India.[1] However, the Tribunal has also considered evidence that her father and brother do not hold strict and conservative Sikh views such that they will harm or kill her. At the hearing the applicant agreed with the Tribunal’s observation that her father’s financial and other support to her as [an age] year old daughter to undertake study and stay by herself overseas, which he continued for a long period, was not the action of a conservative traditional Sikh man who would commit an ‘honour’ killing. While the applicant stated it was a miracle that he agreed, and that he trusted her to act responsibly, the fact remains that her father did agree to her prolonged stay in Australia and financed her stay for five years. The applicant describes her father supporting her plans and taking responsibility for organising her study through an agent, even though this meant that she was not initially enrolled in her preferred course.  On the basis of these actions, the Tribunal does not accept the applicant’s claim that her father has strict and traditional Sikh values such that he would harm her in any way, or kill her, to protect his ‘honour’ in the event he was humiliated by her marriage or any other conduct.

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

24. The Tribunal has considered the applicant’s claim that her parents broke off ties with her in October 2013, when they learned of her marriage, and that her father refused to send further funds to support her further study in Australia because she had shamed the family and he did not want any further relationship with her. On the basis of the evidence before it, including the departmental documentation discussed with the applicant at the hearing, the Tribunal accepts that the applicant’s family did not provide funds for her re-enrolment in study Australia. The Tribunal further accepts that the applicant’s father was unwell at this time. However, the Tribunal does not accept that the applicant’s family have broken off ties with her. The Tribunal does not accept that the applicant’s family did not provide additional funds for her further study because of her because of her marriage. In making these findings the Tribunal has taken into account its finding that the applicant is not a credible witness. The Tribunal has also taken into account its finding above that her father’s actions in relation to her study in Australia are not indicative that he holds has strict and traditional Sikh values.   

1. The applicant was repeated in her statements that her father, brother and her whole family, would kill her because she has humiliated them by marrying without consent and because her husband was not suitable. The applicant stated as evidence that she has heard her father agreeing forcefully with ‘honour’ killings in discussion with his friends. The Tribunal considered the applicant’s comments but considers, as above, that the information that her father and family had supported her study, unaccompanied, in Australia for at least five years strongly suggests that he does not hold strict or conservative Sikh views. The Tribunal also noted, as above, that her father does not take part in religious activities in the community. On the basis of the evidence before it, the Tribunal does not accept that the applicant’s father holds strict or conservative Sikh views such that that there is more than a remote chance that the applicant faces a real chance of serious harm or a real risk of significant harm from her father, brother or family, for any reason.    

2. The applicant stated that her mother’s account of an event where her [female relative] was killed by the applicant’s [male relatives] many, many years back, before the applicant was born, because she had an inappropriate relationship with someone, and this was made to look like suicide, was indicative that her father and brother would kill her. The Tribunal has considered this claim, but in light of the findings above concerning the applicant’s credibility, the Tribunal rejects this claim. The Tribunal has also considered the applicant’s claim that her family have told her that she had better stay in Australia because they will kill her if she comes back, and finds that it is vague and unsubstantiated and that in the light of the serious concerns about the applicant’s credibility, the Tribunal reject this claim. In this consideration, the Tribunal also took into account the applicant’s comments that none of her family members had been involved in any criminal actions. The Tribunal notes that past conduct is merely a guide when assessing what may happen to a person in the reasonably foreseeable future, and that in this case, the absence of examples of serious harm in the past does not necessarily lead to a conclusion that there is not a real chance of serious harm in the reasonably foreseeable future. However, having regard to the totality of the evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from her father, brother or any other family for any reason.

3. The Tribunal considered the applicant’s claim that even though her marriage is finished, her parents will not restore their relationship with her because she is now worthless. In this consideration, the Tribunal has had regard to country advice from 2012[2]. This advice states that academic sources in relation to divorce indicate that divorce remains uncommon[3]  and carries a strong stigma in Punjab and women who seek a divorce may risk social disapproval and rejection by the community.[4] The Tribunal notes the central role of marriage in Sikh culture and that in “much of Sikh society… a woman’s standing depends largely on having a husband”[5] and accepts that the applicant may face family and community disapproval. However, central to this consideration is the Tribunal’s rejection of the applicant’s claim that her family have broken off ties with her. The Tribunal has also taken account of the evidence before it, that the applicant’s father does not hold strict or conservative Sikh views such that he would harm her for any reason. While the applicant’s family may not approve of her separated status, the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm from her parents because of her status as a separated woman.

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

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

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

   [5] [5] Nesbitt, E 2005, Sikhism: A very short introduction, Oxford University Press, Oxford, p. 115

4. While the applicant did not claim that she will face harm from the community in Punjab because she now has the status of a separated/divorced single woman, the Tribunal has considered this aspect of her circumstances. In this consideration, the Tribunal has had regard to the country advice cited above in relation to separation/divorce. The Tribunal has also taken account of its finding above that the applicant is not estranged from her family and finds that she will therefore have the shelter and protection of her family. While the Tribunal accepts that attitudes in the Punjab toward separated women may lead to disapproval of her, the Tribunal is satisfied that there is not more than a remote chance that her family or community or anyone else will harm the applicant for this reason.

5. The Tribunal has some sympathy for the applicant who did not resolve her visa status satisfactorily after the MRT set aside the cancellation of her student visa. The Tribunal also has sympathy for the frustration she has felt because she has not been able to work or study. However, for all of the above reasons, the Tribunal, having considered all of the applicant’s evidence in totality, is not satisfied that the applicant is a credible or reliable witness. On this basis, the Tribunal does not accept the applicants’ claim that she participated in a Sikh marriage ceremony and later registered the marriage without the knowledge or consent of her family. The Tribunal does not accept that the applicant’s family has withdrawn support for her study in Australia because of her marriage and that they want nothing to do with her. The Tribunal does not accept that the applicant’s family have broken off relations with her.  The Tribunal does not accept that the applicant’s father and brother and whole family will seek to avenge their honour by killing the applicant or in any way harming the applicant because she has shamed them by marrying without their consent someone who is unsuitable, now or in the reasonably foreseeable future.

6. Based on the findings above, and considering all the applicant’s claims individually and cumulatively, the Tribunal does not accept that the applicant has a real chance of serious harm from her father, brother, family or anyone else due to her marriage and current status as a separated woman, now or in the reasonably foreseeable future. Therefore, the Tribunal finds, on the evidence before it, that the applicant does not have a well-founded fear of persecution. 

7. Based on its findings above, and considering all her claims individually and cumulatively, the Tribunal also finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will suffer significant harm for this or any other reason.

   CONCLUSIONS

8. 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).

9. 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).

10. 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

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

    Amanda Paxton
    Member