1501478 (Refugee)

1501478 (Refugee) [2017] AATA 2732 (8 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1501478
COUNTRY OF REFERENCE:                  India
MEMBER:Brendan Darcy
DATE:8 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 08 November 2017 at 5:10pm
CATCHWORDS
Refugee – Protection Visa – India – Particular social group – Inter-caste marriage – Sikh – Social taboos – Honour killing – Fear of violence – Adverse travel history – Bogus documents – Witness credibility
LEGISLATION
Education Services for Overseas Students Act 2000, s 20
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 391, 424A, 424AA, 425, 438, 499
Migration Regulations 1994, r 1.12, Schedule 2
CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of the Republic of India (India), applied for the visas [in] April 2014 and the Minister’s delegate refused to grant the visas [in] January 2015.
The applicants applied to have the decision by the delegate reviewed by the Tribunal, differently constituted on 2 February 2015.
The first named applicant, [Mr A], is referred to in this decision record as the applicant or the first applicant; the second named applicant, [Mrs B], is referred to as the second applicant.
The applicants appeared before the Tribunal on 28 April 2016 to give evidence and present arguments. The applicants also appeared in a second hearing before the Tribunal on 6 June 2017. The Tribunal hearings were conducted with the assistance of an interpreter in the Punjabi and English languages. Although the applicants nominated a legal representative, the representative was not present at either of the hearings.
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.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spousal relationships.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The first applicant claims to be born on [date] in [a village] in the union territory of Chandigarh (the capital city of the Indian states of Punjab and Haryana) and that he is a citizen of the Republic of India.
The second applicant claims to be born [date] in [a town] in Chandigarh and that she is a citizen of India.
Both applicants claim to belong to the Sikh religious tradition; both claims to speak, read and write Punjabi, Hindi and English.
The second applicant claims to have married [name] and was formally divorced [in] 2013. According to documents submitted by the second applicant’s former husband [in] February 2013, the application for divorce was on the grounds that he and his wife lived separately for [a number of] years and that his wife had deserted him. [1]
[1] DIBP Folio 34
First applicant’s Visa History
The first applicant arrived in Australia on a [student] visa for higher education [in] March 2008.
Between [April] and [May] 2011, the first applicant travelled to India to visit his family.
[In] October 2011, the first applicant applied for a class VC subclass 485 skilled graduate visa without any dependents.
[In] April 2012, the visa application for a skilled graduate visa was refused and the first applicant appealed the refusal decision to the Tribunal, differently constituted on 20 April 2012.
Between [October] 2012 and [November] 2012, the first applicant returned to India advising the Department of Immigration that his parents were unwell. According to the decision report, the first applicant mentions on file that he returned to India to attend his [sibling]’s wedding. In the first applicant’s 866 forms, this claim is reiterated.[2]
[2] [file number] /DIBP Folio 3-21.
[In] March 2014, the Tribunal, differently constituted, affirmed the delegate’s decision not to grant the skilled graduate visa.
[In] April 2014, the first applicant submitted class XA subclass 866 protection visa applications with the second applicant as the secondary applicant. The applicants submitted their visa applications through a registered migration agent.
Second Applicant’s Visa History
[In] May 2014, the second applicant applied for a [visa] to study in Australia with her then husband, [name], as her dependant and both arrived in Australia [in] November 2008.
The second applicant claims that her then husband left to work in regional Australia and although they spoke to each other occasionally, they did not live with each other again. The first and second applicants claimed they then met [in] December 2008 and began living with each other in February 2009 and subsequently began living together at different residences.
The second applicant departed Australia [in] November 2009 for India to visit her family and returned [in] December 2009.
[In] May 2010, as a result of the second applicant informing the Department of her broken relationship with [her first husband], the applicant’s dependant had his student visa cancelled. There is no mention of another relationship in the departmental record [in] April 2010. [3]
[3] [file number]/ DIBP Folio 120
The second applicant lodged for a new [student] visa [in] March 2011 with no dependants. The delegate refused to grant this subsequent student visa [in] June 2011 on the basis the second applicant was a non-genuine student.
[In] July 2011, the second applicant’s associated bridging visa with the student visa application expired and she remained unlawful in Australia between [July] 2011 and [April] 2014, when she was granted a bridging visa for departure grounds.
[In] April 2014, the second applicant who applied for the abovementioned bridging visa claimed to have remained in Australia unlawfully because her arranged marriage had broken down and she was fearful that of what her husband would say to her parents and how they would react. The second applicant had also advised that she had repaired her relationship with her parents and was prepared to return to India and that friends had assisted her in purchasing a ticket to return to India, according to departmental file note.[4]
[4] [file number]/DIPB Folio 133
Three days later the second applicant jointly lodged protection visas with the first applicant as mentioned above.
Claims for Protection at the Time of Application
In the applicants’ 866 forms for protection, the first applicant claims to have never have married or been in a de facto relationship, while the second applicant claimed to have been divorced.
In summary, the applicants provided very limited written claims that they will be killed by members of both families if they are to return to India as a result of their inter-caste marriage.
[In] July 2014, the applicants submitted printed photographs of their marriage ceremony, a copy of the applicant’s marriage certificate dated [in] 2014 and a copy of the second applicant’s marriage certificate issued in Punjab indicating that she married [her former husband] [in] 2008.
Delegate’s decision
[In] April 2014, the Department corresponded with the applicants to advise them that they were required to provide personal identifiers and invited them to contact the Department if they wanted to discuss their claims for protection.
[A short time later], the first applicant wrote to the Department requesting work rights claiming that he was supporting his ‘live-in-girlfriend’ and they did not have any savings. [5] Work rights were granted to the applicants’ associated bridging visa.
[5] [file number]/DIBP Folio 88
[In] 2014, the applicants married in Australia.
The applicants were interviewed in relation to their claims that Australia owed them protection obligation [in] October 2014. Their representative was present as well as an interpreter in the Punjabi and English languages.
The applicants were provided an opportunity to submit further information and [in] October 2014, the applicants submitted additional material including various news articles, documents showing the applicants’ addresses, statutory declarations from [name] and [name] and a letter from [name] dated [in] April 2014.
There were also statutory declarations from both applicants.[6]
[6] [file number]/ DIBP 63-69
The delegate was not satisfied the applicants had lived in a de facto spousal relationship for the period claimed but accepted they were in a formal marriage and assessed that their marriage is an inter-caste marriage.
The delegate also found the joint tenancy agreement submitted by the applicants to have been unreliable and that departmental records indicated the applicants did not live together at the same address prior to the submission of the protection visa applications. The delegate also had credibility concerns about the marriage as the applicants did not marry once the divorce was granted in [2013] and that participating in a marriage ceremony does not substantiate the relationship as genuine.
The applicants applied to the Tribunal, differently constituted, on 2 February 2015. A copy of the delegate’s decision record was attached.[7]
[7] AAT Folio 9-28
Evidence prior to and at the First Scheduled Hearing
Prior to the scheduled hearing (which was rescheduled from 5 April 2016 to 25 April 2016), the applicant’s representative submitted a substantial amount of media reports, affidavits and statements on 26 April 2016:
Of particular importance was an unsigned and undated joint statement in English by the applicants that was submitted.[8] The statement outlines the applicants’ relationship had begun in 2009, that their relationship was genuine; that the second applicant lodged her divorce late because of financial difficulties; that their parents knew about the relationship since 2009 and they did not feel safe returning to India and that parents pretended to agree with the relationship as they were trying to trap them into not returning to Australia; that the affidavit from the first applicant’s [relative, Mr H] was the only one assisting them with documentation and that [Mr H] no longer has relations with the first applicant’s parents because they became aware of this assistance; that the first applicant’s parents have disowned and disinherited him; that the second applicant has no control over her property back home and that her step father has strong connections with government officials and is in touch with corrupt leaders of the area; and that the couple fear the people will kill them just because they are in an inter-caste relationship.
[8] AAT Folio 141-149
Included in this submission was the following:
·     A translated copy of a General Power of Attorney dated [in] 2009 and signed by the second applicant appointing the second applicant’s mother as her power of attorney;[9]
[9] AAT Folio 185-186
·     A translated affidavit dated [in] 2016 from [name] who claimed to be a clerk from [district] to rectify a clerical error regarding a backward caste certificate for the first applicant;
·     A statement from [Mr C], as a resident [Village 1], had witnessed [Mr D] ( the father of the first applicant) and other men with [Mr E] on the same day as [Mr E] who had disappeared [in] 2009 in [a vehicle], and that he had seen the deceased body of [Mr E] lying in a mortuary in [a hospital];
·     A statement entitled “[Mr C] (Recalled for further cross examination) by [legal representatives] for [Mr D] accused’.[10] The statement includes testimony that [in] 2009, [Mr D] had been seen with [Mr E]; that [Mr D] told [Mr C] that they were going to the village, [Village 2], to permanently settle a dispute;
[10] AAT Folio 182-181
·     A statement from entitled dated [in] 2010 ‘[counsel] for remaining accused’, indicating that the person had been a witness to a number of men at the [location] departing in [a vehicle] and that he had seen [Mr D] and [Mr E] together;[11]
[11] AAT Folio 179-180
·     A statement entitled “State versus [parties]’ dated [in] 2010. The document indicates that [Mr C]’s testimony that he had witnessed [Mr D] and [Mr E] depart to [Village 2] ‘for some compromise’;[12]
[12] AAT Folio 176-174
·     An article in Punjabi with a translation entitled ‘[title of article]’. The article claimed that in the village of [Village 1], [Mr D]’s son in law hired [a number of people] to kill the lover of his daughter, [Mr E]. It claimed that [Mr D’s] daughter, [Ms F], had been obliged to marry [Mr G]. The article stated that the father and wife of [Mr E] had claimed their son had been missing for [a number of] days and they identified a body at the local hospital to be their son’s. The article states that a police investigation led to the arrest of [Mr D] and a number of others; that there was an apparent illicit relationship between [Ms F] and [Mr E] while they were taking [activities] which turned into a love affair; that [Mr E’s] family approved of the match; that she was determined to marry [Mr E] despite her parents. However, when [Ms F] did not marry [Mr E] but [Mr G] living in [Country 1]. This news devastated [Mr E] but the couple hatched a plan for [Mr G] to marry someone else. When [Ms F] arrived in [Country 1] with [Mr G], she had planned to divorce him but her father found out about the plan, became upset and then her father and his son-in-law wanted a ‘permanent solution to his problem’. [Mr E] had been lured to meet [Mr D] with false hope that a divorce had been agreed upon. Thereafter [Mr E] had been abducted and then [killed]. The police arrested a number of suspects and a number of people later admitted to their involvement.
·     A notarised copy and translation of a death certificate from the relevant Punjabi authority for [Mr E];[13]
[13] AAT Folio 159-160
·     A number of documents indicated that visa fraud committed by agents living in Dehli and running a business in Australia;[14]
[14] AAT Folio 153-158
·     Copies of a wedding invitation and wedding programme between [Mrs B] and [name] for [October] 2012 (to indicate that the first applicant had been in India for a wedding)[15]
[15] AAT Folio 151-152
·     A notarised affidavit by [Mr H] claiming that [Mr D] had been [Mr H] for helping his daughter, [the second applicant, Mrs B] in her love marriage with [the first applicant, Mr A], and that [Mr D] had threatened the couple with murdering if they visited India; [16]
[16] AAT Folio 137
·     A notarised affidavit by [name], claiming to be a [occupation] and witness of an incident [in] 2016 in which [Mr H] helped the applicants in a love marriage;[17]
[17] AAT Folio 137
·      A letter dated [in] 2016 from the [a health authority] that [Mr H] had been admitted to hospital [in] 2016 for [specified injuries].[18]
[18] AAT Folio 136
·     A notarised affidavit from by [name] claiming to have found a badly beaten man [in] 2015; that the victim, was [Mr I], son of [Mr C]; that the victim required hospitalisation; and that [Mr I] accused [Mr D] of the beating;
·     A letter dated [in] 2016 from [a health authority] that [Mr I], son of [Mr C] had been admitted to hospital [in] 2015.[19]
[19] AAT Folio 134
·     An affidavit singed by [Mr H] claiming to the elected Sarpanch of [Village 1] attested that he had informed [Mr D], the father of [Mrs B] about the applicants’ love marriage; that he ignored the Sarpanch’s advice to stop fighting and that [Mr A]’s parents also fear for his life;[20]
[20] AAT Folio 122
·     An affidavit from [name] claiming to be the Lambardar (senior village office holder) of the village of [Village 1] to attest that he had informed [Mr D], the father of [Mrs B] about the applicants’ love marriage; that he ignored the Sarpanch’s advice to stop fighting and that [Mr A]’s parents fear for his life;[21] and
[21] AAT Folio 121
·     A number of printed articles from various news websites about honour killings throughout India[22];
[22] AAT Folio 139-141; 190-210

The applicants appeared before the Tribunal on 25 April 2016. They did not have the assistance of a representative who submitted a letter that he was unable to attend due to a ‘compelling health issue’ which had worsened the night before[23]; however the applicants were assisted by an interpreter in the Punjabi and English languages.
[23] AAT Folio 211
Oral Evidence from the First Applicant
The first applicant claimed that the migration agent assisted with the applicants’ lodgement of their visa applications and claimed that as far as he knows and believes everything in his application is true and correct.
The first applicant claimed that he was born in [a village] in [district] in the Indian state of Punjab and that his home village was [Village 1] in the same Indian state. He claimed that his father and mother reside in [Village 1], where his father is [occupation]. The first applicant claimed that he has one [sibling] aged [age] who is married and [resides] in the Indian state of West Bengal. He further claimed he was not long in contact with any of these family members.
The first applicant claimed that he speaks, reads and writes in Punjabi and has some English and Hindi; that his religion was Sikh and that his caste community was [Caste 1] Sikh, which the first applicant described as backward. The first applicant claimed that he finished the year 12 equivalent in India and completed a [certificate] after arriving in Australia in 2008 but not a diploma.
The first applicant claimed that he formerly married the second applicant in [location] in the Australian state of [state] [in] 2014. The first applicant claimed that the applicants first met in December 2008 when he was working at [a business]. As they dated, he learned that the second applicant had been married at the time but she had been left to work on farms and she was facing financial hardship which led to her not being able to pay rent. At this point, the first applicant claimed he offered the second applicant to move in with him in [suburb]. The first applicant claimed that she had been a good tenant and that her former husband would visit her about once or twice a month. The first applicant claimed he did not think the relationship was a good one.
The first applicant claimed that in 2009, the second applicant went to India and when she returned the relationship between the first and second applicants had developed into a romantic one by early 2010. The applicant then claimed that his parents came to know of this romantic relationship when friends living in the house had informed them. When the Tribunal asked why his friends would have informed his parents, he said he did not know. The Tribunal asked similarly that given honour killings are apparently prevalent among Sikhs in India, why would they have raised this matter with the first applicant’s parents; the first applicant said perhaps they were not good friends or that because they were from the same area, their fathers told his father about the relationship. The first applicant added that his friends have some kind of responsibility to tell them because they felt ashamed when people visited the house in [suburb]. The first applicant said that when his father raised the matter he explained that it was not romantic and that his father had intended the first applicant to marry one of his cousins.
During the scheduled hearing, the first applicant elaborated on his visa history. He claimed that after he arrived in March 2008, he completed a [certificate] but did not go on to complete a diploma. It was claimed he changed college but was unable to obtain a section 20 notice to allow him to move to another educational provider and that his education agent had given advice that he could. The first applicant then claimed he was admitted into another educational provider but he could not apply for a student visa until his then existing visas had expired. The first applicant then claimed that his then migration agent or lawyer had successfully lodged a skilled graduate visa on his behalf without informing him. The Tribunal asked if the first applicant complained about the migration agent. The applicant then claimed that he appealed the refusal decision for the skilled graduate visa which was refused in 2014. The first applicant then claimed he applied for a protection visa in April 2014 based on his claims for protection.
With regards to the first applicant’s travel, the first applicant claimed that he made to return trips to India in 2011 and 2012; and that he stayed in with parents in Punjab on each occasion. The first applicant claimed that his father and his [relatives] spoke positively of a 2009 honour killing in a positive way during the 2011 visit and that he was warned that there would be consequences, such as not allowing the first applicant to return, physically harm him or even killing him if he remained in a relationship that they did not approve of. The first applicant said that he had been warned by community members as they had heard that the second applicant was a [Caste 2] and such a marriage would be undermining the identity of the community.
Later in the hearing, the first applicant elaborated that a lower caste male Punjabi Sikh named [Mr E] was in love with a [Caste 2] girl; however the girl’s father disapproved of the relationship and [Mr E] was killed by hired assassins by the family back in [Country 1]. The applicant claimed the girl was [from Country 1] and had been ‘promised’ to another man. The applicant claimed that it was relevant as even talking on the phone is dangerous to a woman and can lead to being killed and that professional killers can be hired to target the applicant. The first applicant claimed that [Mr E] was related to the first applicant as a [type of relation] but was unable to describe relations. The first applicant claimed to have evidence to support this claim and further claimed that he had socialised with [Mr E] when they were younger and that he attended [Mr E's sibling’s] marriage.
The first applicant claimed that he returned to India in 2012 for his [own sibling]’s wedding and that he took the opportunity to plead with his mother to continue his relationship with the second applicant. However the applicant claimed that his mother spoke to his father who was enraged and shouted at the first applicant. It was further claimed his father was partly upset as he could not defend the first applicant in such circumstances and the first applicant feared his father would be forced to harm him. The first applicant said that he was not assaulted as he agreed to his parents’ wish to discontinue the relationship. The first applicant then decided not to return to India.
The Tribunal enquired into the reasons the first applicant did not apply for a protection visa immediately on return in 2012; the first applicant responded that he planned to wait for the review of the refused skilled graduate decision as his agent had told him he would be successful on appeal. The first applicant also claimed that he was not made aware of protection visas at the time by his migration agent, even though he made his agent aware of the violent threats against him, or many of his friends had used protection visas.
At the scheduled hearing, the first applicant claimed that the second applicant had known that she not been lawful since 2011, and that he planned to include her on his student visa in 2011 but was unaware that she would qualify as a dependent on that visa; that he relied on the advice of friends; that he feared the second applicant would be removed from Australia and that he was in a depressed state. The first applicant also added that he did plan for a protection visa in 2011, despite his circumstances arising from their spousal relationship.
The first applicant stated that since returning from India to Australia in 2012, he has not received any more threats and that he stopped contacting his family.
At the scheduled hearing, the Tribunal asked whether the first applicant could relocate, in so far as it was reasonably practicable, to another part of India or to resettle in [Country 2]; the first applicant responded that he will be relocated by his family by tracking him down through his mobile phone number; that the second applicant’s family will be looking for them both; that all their friends will know that they are in India. The first applicant claimed that his wife’s family had wealth and political connections through the Indian Congress Party as well as panchayat khaps and her father [worked in the legal system] back in India, indicating the second applicant’s father was well connected personally. Asked whether he would be able to find work, the first applicant responded that jobs would not be reserved for him as a lower or backward caste member in other states and that he would only be able to find small low paying jobs in the private sector. He added that under such circumstances, the applicants could not begin a family as they wished. With regards to resettling in [Country 2], the first applicant claimed there would be linguistic barriers to living and working in [Country 2] and that the Punjabi speaking community was small and that they would not be able to start a family there.
Oral Evidence from the Second Applicant
The second applicant elaborated that her biological father had passed away when she was young and that her mother remarried and that [Mr D], aged about [age], had become her step-father and that [name], aged about [age], had become her step-brother.
The second applicant claimed that she belonged to the Sikh faith tradition and continued to identify as a Sikh; that her caste was [Caste 2]; and that she could read, speak and write in Punjab, English and Hindi.
The second applicant claimed that she was first married in [2008] to [name] and that the marriage was arranged by their respective families. The Tribunal enquired if she was willing to be in an arranged marriage at the time; the second applicant claimed that she could not go against her parents’ decision and thought that whatever the family wanted for her should be good. The second applicant claimed she applied for a student visa as the primary visa holder while her then husband was the secondary visa holder. When the Tribunal asked whether the marriage had been arranged for migration purposes, the second applicant claimed it was not. The second applicant claimed when she arrived in November 2008, she was studying for a diploma while he [worked]. The second applicant claimed that she only finished one semester and then deferred on the basis she could not afford her tuition fees. The second applicant claimed her husband only gave her a small amount of money; that he did not take seriously her difficulties in not paying fees or her difficulties in paying rent. The second applicant claimed the marriage was only good from about the first six or seven months and that when she shared a house with Indian males, including the first applicant, he complained about it. The second applicant said the relationship broke down at the end of 2009. When the second applicant explained about the situation to her parents, she was unaware if they raised the matters with the family of her former husband. The second applicant claimed that she complained against her husband to the Department and had his visa cancelled. This occurred after she returned from India in 2010. The second applicant said very little had happened while she was in India, other than her step father forcing her to sign property papers to transfer the ownership of property to her mother. She also added that when she said the relationship was not growing, her parents indirectly blamed her for the marital problems and that [her husband] had complained about her sharing accommodation with other males and that was spoiling the marriage. The second applicant claimed that when she ended the marriage, her parents no longer spoke to her.
The second applicant claimed that she attempted to apply for a new student visa in March 2011; that her parents assisted her; that she paid for the visa fee but her documents were not complete. The second applicant then claimed she applied for a business visa but there were incomplete documents. The second applicant claimed that she then appealed the decision to refuse that visa application to the Tribunal, differently constituted. The second applicant claimed she tried to stay onshore in Australia as she did not want to be separated from the first applicant. The second applicant claimed that she did not gain any legal advice at the time as she could not afford it. The Tribunal asked how she could afford a wedding in 2014 if she could not afford legal advice about her migration options; the second applicant responded that ‘they gave me dodgy ways’. The Tribunal asked for the reasons she informed the department her relationship with her parents was now repaired and she was prepared to return home [in] April 2014; she responded it was a lie and that she had been advised to mislead the department by an agent.
It was discussed with the second applicant at the scheduled hearing that the applicants had applied for a protection visa [in] April 2014 and married [in 2014]. The Tribunal asked if the marriage only came about to augment their claims for protection, given there was no mention of the relationship with the first applicant in the file note from the Department; the second applicant claimed she married to feel safe. The second applicant claimed her step father, her step brother and their cousins wanted to harm her for her inter-caste marriage. It was claimed that while she knew her step father was angry and would not accept an inter-caste marriage, the step father had never spoken to her. The second applicant claimed that she knew that he was angry based on her conversations with her mother and claimed that he used to beat her as a child. She added that her step brother had spoken to her in an angry and disrespectful manner and that her mother said that her inter-caste marriage was a big step.
It was claimed in the scheduled hearing that the step father of the second applicant was very influential in the Indian Congress Party and in the Shiromanini Akali Dal as well because he [worked in the legal system] which is a government job. The second applicant claimed that her former husband gained documentation that the first applicant to find out which caste he belong to and to make an example out of the two of us.
The second applicant also claimed that she had a male relative who had been killed for breaching a traditional relationship taboo when the second applicant had been very young.
The second applicant claimed that they were unable to relocate anywhere in India as her family will track her down with their connections with politics and the police and through registration of SIM cards. She feared friends would inform family members about the applicants’ whereabouts if they returned to India. When asked if she had linguistic barriers in finding work in India given she was literate in Hindi, the second applicant claimed there were over 150 languages in India and that even very highly qualified people had trouble finding employment and that the applicants would be poorly paid.
With regards to resettling in [Country 2], the second applicant claimed they could not resettle because of the [natural disaster] that occurred and because of the linguistic barriers.
Evidence prior to and at the Second Scheduled Hearing
A further hearing was scheduled for 30 May 2017.
One day prior to the hearing the applicants submitted a jointly signed statement in support of their application for protection visas. [24] In this undated statement the applicants reiterated that they were in a genuine relationship since 2009; about their caste membership and about the timing of their protection visa applications. The applicants also mentioned that the [relative] of the first applicant who had been updating and informing the applicants about both their families had since been jailed [a number of] months ago and that the [relative, Mr H,] had told them that the situation back home had deteriorated if they were to return. They added that the wife of the [relative] was very scared now since she has also been receiving threats.
[24] AAT Folio 223-227
The applicants attended the second scheduled hearing. They were assisted by an interpreter in the Punjabi and English languages. Again, their appointed representative did not attend as the applicants had asked him not to attend.
The Tribunal asked a number of questions about the second applicant’s visa history. Both applicants emphasised that they had been in Australia for more than eight years and wished to settle here. The first applicant mentioned that he had [a number of pets] for whom both applicants care.
The Tribunal enquired of the second applicant if she feared being harmed if the applicants were to return to India based being a divorced woman or any other reason; the second applicant responded that her divorce had been obtained without permission but the main reasons was because it was an inter-caste relationship and that their respective parents not approved by their respective families.
The Tribunal enquired of the second applicant whether [Mr D], father of mentioned in submitted articles, including one that was translated, who was reported to have killed [Mr E], was her father. The second applicant responded that he was not. The applicants claimed that there was bad blood between the caste communities because of this killing. The Tribunal pointed out there is nothing in the submitted country information to indicate that the killing was linking to an inter-caste marriage, only that that the relationship was adulterous and not approved by [Mr D].
The Tribunal asked whether the change of government in the Indian state of Punjab in which the Sikh dominated party, Shiromanini Akali Dal or (SAD), lost power to the Indian Congress Party. The first applicant claimed that it is not relevant as his father in law remains powerful in Punjab as [an employee of the legal system] and is valuable to all the parties; while the second applicant claimed her step father is valuable to all parties and the police because they [frequently interact with the legal system].
During the hearing, the Tribunal raised country information which quoted a researcher on Indian criminal justice issues, the Immigration and Refugee Board (IRB) of Canada stated in a report of 5 May 2014:
‘[M]ost identity documents in India can be faked and/or obtained by fraudulent means and can be “custom ordered in most parts of the country”.
‘[F]raudulent medical records, school records and police records are prevalent in India.
‘Political party cards are totally fraudulent. Most parties do not have any documentation of their members and generally do not issue membership cards. Some local units may provide one to their local members but there is little authenticity of these.’
The first applicant reiterated that documents he has submitted had not been fraudulent but genuine; and if the documents were fraudulent it was without the applicants’ knowledge. The first applicant further stated that [relative], [Mr H], had assisted them but he was now in jail. When the Tribunal enquired about the types of charges imposed on his [relative], whether he had been charged or whether he was appealing the matter, the first applicant responded that he did not speak to his [relative’s partner] about the offence but they have the suspicion that it connected with the applicants’ marriage. The second applicant said the charges were to do with the marriage and he is now seeking to go to a higher court. The Tribunal asked if the applicants were able to submit a First Incident Report (FIR) either from the courts or the police, the first applicant responded that his [relative’s partner] is now afraid to cooperate with the applicants due to being scared so they were unable to.

During the hearing, it was put to the first applicant under s424A and s.424AA that MRT decision [decision number] from 2014 which concerned the first applicant’s unsuccessful merits review appeal for a skilled graduate visa.[25] This 2014 decision record made a finding that the Tribunal was satisfied that that false and misleading information relevant to a skills assessment had been submitted by the first applicant and that the first applicant had given or caused to be given this material. It is also noted that the first applicant or his representative did not respond to this information when it was put to them as adverse information under s391; that the Tribunal found the first applicant did not satisfy PIC 4020(1) and did not waiver PIC 4020. The Tribunal explained to the first applicant that this may be relevant or partially relevant to its decision making because it would indicate that that the first applicant has submitted bogus documents for a skilled graduate visa (namely a skills assessment) in the past and that such behaviour may invite the Tribunal to consider that the first applicant may have repeated this behaviour in submitting affidavits claiming to be from relatives, court documents claiming to be relevant to this case, hospital documents as well as the first applicant’s critical oral and written claims for protection.
[25] AAT Folio 246-251
Although the Tribunal stated the applicants did not have to respond straight away, the first applicant responded at the scheduled hearing that he has consistently informed the Tribunal, including during the 2014 review of the refused skilled graduate visa, that [his migration agent] submitted documents with a skilled graduate visa about which he did not know.
The second applicant also stated that she did not apply for a protection visa in 2011 based on the advice of her then agent. She also stated that she had health conditions related to [her mental health], including [another condition], and that an ambulance has been required to treat her.
At the end of the second hearing, the Tribunal provided the applicants until 9 June 2017 for any response to adverse information raised during the hearing and any other post hearing submissions. No further submissions were submitted by the applicants or on their behalves, to the Tribunal, right up to the period of writing this decision.
On 31 October 2017, the Tribunal wrote to the applicants’’ representation informing that there was a non-disclosure notice under s.438 of the Act attached to the applicants’ departmental file; that the Tribunal was satisfied that the notice had been validly issued; that the information was not relevant to the Tribunal’s findings; and that the applicants were invited to comment. On 3 November 2017, the second applicant responded to the correspondence stating that the applicants do not want to suffer more but did not address the substantive matter raised in the correspondence.
Country Information
The Tribunal raised aspects of the following country information from the DFAT’s July 2015 report into India about the prevalence of fraudulent documents to the applicants during the first hearing:
Document Fraud
5.27 Forgery, making false documents and using false documents are offences under sections 463-489 of the Indian Penal Code. However, a range of sources suggest that the manufacture and use of fraudulent documents is prevalent in India, including for immigration purposes. Examples of fraudulent documents include civil registry documents, curriculums vitae (CVs), letters of employment, financial documents, educational qualifications, newspaper articles, political party registration, and even websites created specifically to reinforce other documents. According to a report prepared by the Australian Department of Immigration and Border Protection (DIBP) in 2009-10 and released under freedom of information, ‘Identity fraud is a significant risk in the Indian caseload given how easily genuine documents with fraudulent details can be obtained’. The absence of a centralised national identity database compounds this problem.
5.28 Although there are no classes of documents which are not open to fraud, some types may be more reliable than others. Passports are generally relatively more difficult to forge than other types of identity documents. However, genuine passports can be issued using fraudulent information. For example, in May 2013, India’s Ministry of External Affairs revoked 127 passports issued to Sri Lankan nationals residing in Tamil Nadu. The passports were issued on the basis of false supporting documents.
5.29 Document fraud is a significant industry in India. Complete packages of fake documents can be arranged and provided by an organised network of professional agents. For example, a Special Investigation Team from the Chandigarh Police arrested four people in March 2012 for their involvement in a large-scale document fraud operation which had been operating since 2003. The operation allegedly produced fake bank statements, life insurance policies, property documents and income tax returns which were used to support hundreds of applications for travel abroad, including to the UK and Canada.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of Reference
The applicants claim to be citizens of India and provided copies of their passports to the Department with their application and which were sighted by the Tribunal at the scheduled hearing. The Tribunal finds that the applicants are citizens of the Republic of India, that India is the applicants’ country of nationality for the purposes of the Refugees Convention, and that India is their receiving country for the purposes of complementary protection.
Under sections 36(3), (4), (5) and (5A) of the Act, the Tribunal can consider that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, in a country apart from Australia, including countries of which the non-citizen is not a citizen.
However, in this decision, the Tribunal’s assessment of claims and its findings has not been decided against these provisions and have been restricted to ss.36(2)(a) and (36(2)(aa).
Member of the Same Family Unit
The Tribunal has considered if the applicants are in a spousal relationship. If the couple are not in a spousal relationship then the second applicant may not be eligible to satisfy s.36(2)(b) or (c) because he is not a member of the same family unit as the first applicant.
There was testimony which invited the Tribunal to consider the spousal relationship was not genuine at the time of their application for protection visas in Australia. In this regard, the Tribunal notes that the applicants were formally married in [in] 2014, as the submitted marriage certificate indicates, after the applicants had jointly lodged for protection visas in April 2015. The Tribunal is also concerned that the second applicant’s divorce occurred in 2013 but the applicants did not marry until [2015].

100. There are other concerns which were raised in the delegate’s decision record: This includes that that the second applicant claimed the separation with her former husband had begun in 2009 and that the cause had been adultery while the court document for the divorce indicates that the second applicant’s husband claimed the separation had occurred later than 2009 and that he had accused his wife of abandonment and not adultery. The delegate also took issue that neither applicant took steps to inform the Department of their changed circumstances as required and partially drew adverse credibility findings that the applicants had not lived in a de facto relationship per the period of time claimed.
101. As discussed during the hearing, the timing of the formal marriage which occurred after the written claims that the couple in this review application were in a ‘love marriage’ towards which both their parents were not supportive because their families follow a strict caste system.[26] It is further noted that the first applicant stated in his 866C form that he has never been married, engaged or a de facto relationship, while the second applicant claimed her marital status to have been ‘divorced’.
[26] [file number] - DIBP Folio 13
102. With regards to this relationship being genuine, the Tribunal has considered the totality of the evidence before it. Whereas the delegate drew a negative inference from the second applicant seeking her marriage certificate in April 2010 through a Freedom of Information (FoI) request because the second applicant had not submitted an application for divorce (her former husband had in 2013),[27] the Tribunal has provided the applicants with the benefit of the doubt. This is on the basis that such as a FoI request indicated that the second applicant had been informally separated within a reasonable amount of the time that the applicants had claimed the relationship had begun between the applicants in 2009. The applicants have provided the plausible claim that the second applicant’s husband had been negligent, absent and financially abusive. The Tribunal has placed some favourable weight on the statutory declarations submitted by former tenants of the applicants. The Tribunal notes that the applicants submitted copies of photos of the applicants to support their claim that they are formally married. With regards to the questions provided by the applicants in their 866C forms, these answers appear to reflect to a lack of diligence on the part of both the applicants and their representative at the time of lodgement. With regards to the formal marriage that occurred a considerable amount of time after their claimed romantic and de facto relationship had begun in 2009 and after the lodgement of their applications for protection visas, the Tribunal has not drawn a negative inference that they were not in a genuine de facto relationship as formal marriages frequently do take place after considerable time after co-habitation is initiated. The Tribunal has also considered the demeanour of the applicants towards each during the scheduled hearing to be relevant and found them to be mutually supportive to each other and genuinely wanted to begin a family in Australia.
[27] [file number] DIBP Folio 120
103. The Tribunal is satisfied that there was sufficient evidence the couple are in a continuing spousal relationship since in 2009, at the time of their applying for protection visas and at time of this decision. The Tribunal finds the applicants are in a spousal relationship, satisfying the s.5(1) of the Act. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouses. The Tribunal is satisfied that the second applicant is a member of the same family unit as the first applicant as they live in a spousal relationship.
Disclosure Notice
104. On departmental file is a non-disclosure notice issued by the Department under s.438(1)(b) of the Act directing the Tribunal not to disclose a number of folio pages to the applicants or their representative. It is dated 7 January 2015.[28] The Department has provided the reason for non-disclosure is due to the information relating to other applicants. The Tribunal has examined the disclosure file and it is satisfied that it was correctly issued and there is no adverse information arising from this information. The Tribunal corresponded with the applicants in writing on 31 October 2017 to bring it to their attention and seek any comment by 3 November 2017. A copy of the non-disclosure notice was attached. The applicants did respond but did not raise the substantive issue raised in the correspondence.
[28] [file number] DIPB 208
105. The Tribunal accordingly finds that it is satisfied the notice in question was validly issued; that there was no adverse information arising from this information and that the non-disclosed information was not relevant to the Tribunal’s findings.
Credibility
106. 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.

107. 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.

108. 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.
109. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicants 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).
110. 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.)
111. The Tribunal has also considered the published guidelines of the Administrative Appeals Tribunal in relation to credibility[29]:
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.3 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.4 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.
[29] AAT - Migration & Refugee Division, Guidelines on the Assessment of Credibility July 2015

Accepted Personal Circumstances
112. As mentioned above, the Tribunal has accepted he Tribunal accepts the following claims about the first applicant’s circumstances:
·The first applicant was born in the Indian state of Punjab and was brought up in a small village in [district] in the same Indian state;
·The first applicant lived in [district] with his father, [occupation], and his mother, a home maker, until his departure for Australia
·The first applicant had completed secondary education while in India; he can speak and read and write in English and Punjabi; and he belongs to the Sikh faith tradition;

113. The Tribunal accepts the following claims about the second applicant’s circumstances:
·The second applicant was born in the Indian state of Punjab and was brought up in [a village] in Bathinda district in the same Indian state;
·The second applicant had completed her second education while in India, she can speak and read and write in English, Hindi and Punjabi; and she belongs to the Sikh faith tradition;
·The second applicant’s biological father had passed away when she was very young and that her mother remarried and that [Mr D], aged about [age], has since become her step-father and that she has a step brother; and
·The second applicant lived in Bathinda district with her step-father and her mother until her initial departure for Australia;

114. It is also accepted that the second applicant’s relationship with her former husband occurred around 2009 and early 2010 when the second applicant had contacted to the Department to request that her then husband be removed as a dependent on her student visa. It is accepted that the reasons for this relationship breaking down was, in part, due to the neglectful and financial abusive manner he had treated the second applicant when they first arrived in Australia. It also accepts that the marriage was arranged as claimed.
115. It is claimed by the first applicant that he belongs to a lower or backward caste known as [Caste 1]; while the second applicant claimed to belong to the higher [Caste 2] community. The Tribunal notes that the delegate has reasonable suspicions that the applicants were not in a genuine inter-caste spousal relationship. The delegate noted that a caste certificate identified the first applicant at the top of the page as ‘[a misspelling of Mr A’s given name]’ and as ‘[a misspelling of Mr A’s family name]’ at the end of the form; that the date was handwritten and the year illegible, while every other detail had been typed. The delegate placed no weight on this caste certificate as it was found to be not genuine. The applicants have attempted to address this matter by submitting a notarised affidavit from the relevant clerk admitting to a clerical error and restated that the first applicant to be a genuine backward caste member. The Tribunal also noted that the first applicant was able to provide some oral evidence about the history of his caste and that he has provided affidavit from his local Sarpanch and Lambardar who claimed to belong to the same caste as claimed by the first applicant, namely [Caste 1]. Available country information indicates that the [Caste 1] community in Punjab is listed as an ‘Other Backward Class’. [30] The Tribunal notes that the second applicant’s caste membership as a [Caste 2] was not questioned by the delegate and that a submitted copy of her caste certificate is on departmental file.[31]

[30] [Source deleted].
[31] [file number] DIBP Folio33
116. In weighing up the available evidence, the Tribunal, on this occasion, has provided the applicants the benefit of the doubt in making the following findings: The Tribunal is satisfied that the first applicant belongs to the caste community in Punjab known as [Caste 1]; it is satisfied that the second applicant belongs to the caste community in Punjab known as [Caste 2]; it is satisfied based on the available evidence that the first applicant belongs to a caste that is considered in Punjab as backward or lower than the caste to which the second applicant belongs. Accordingly the Tribunal accepts that the applicants belong to different castes and that they are in an inter-caste spousal relationship.
Second Applicant’s Travel and Visa History
117. While the Tribunal accepts that the applicants are in a spousal relationship and that they belong to different castes, the Tribunal has considered whether the credibility of their claims that will have a real chance of serious harm or a real significance based on their respective families’ hostilities towards their inter-caste spousal relationship. In this regard, the applicants have invited the Tribunal to consider that a number of specific claims for protection had been either embellished or fabricated.
118. Of particular concern to the Tribunal is the evidence that [in] April 2014 has informed one of its departmental officials that she intended to depart from Australia for India[32] and her responses during the scheduled hearings in this regard.
[32] [file number] DIBP Folio 133
119. The departmental file note that summarised the conversation indicates that the second applicant had overstayed her visa because she had been afraid that her arranged marriage had broken down while in Australia and that she was fearful of what her former husband had said to her parents and how they would react. The second applicant, it is recorded, then elaborated that her relationship with her parents had now been repaired and prepared to depart Australia and return home. There is no specific mention of her relationship with the first applicant or her fears about her parents’ reaction to her being an inter-caste marriage. This information strongly indicates that, at the time of her applying for protection visas with the first applicant two weeks later, the second applicant did not have a personally held fear of harm arising from her parents’ religious or traditional views about failing to maintain an arranged marriage, divorce with her first husband or any other reasons, including that she was in an inter-caste spousal relationship. The Tribunal discussed with the second applicant this record as the delegate had drawn a far more negative inference from this evidence that the applicants were not a spousal relationship at all. During the first hearing, the second applicant said it was a lie. In the second hearing, the Tribunal notes that the second applicant did not dispute that the departmental record was incorrect and added that she decided to marry after her protection visa had been lodged to feel safe. During the second scheduled hearing the second applicant claimed she applied because she was not eligible for other visas based on migration advice. Had the second applicant held an urgent or genuine fear of being harmed for breaching a taboo around marital relationships, it would be reasonable to expect the second applicant to have mentioned her fears arising from her inter-caste relationship. Based on the second applicant’s response, the Tribunal finds that the departmental record is an accurate reflection of the second applicant’s conversation in the weeks prior to her application of a protection along with the other applicant in this review and that this evidence undermines the applicants’ overall claim that they have either a genuine personally held fear or well-founded fear of persecution or there are substantial grounds for believing that they faced a real risk of significant harm, at the time of application. Based on this finding, the Tribunal has considered whether there is other evidence that undermines the credibility of the applicants’ claims.
120. Relatedly, the Tribunal notes that in the statutory declaration signed by the first applicant [in] October 2014. It stated that on the second applicant’s return from India in 2009, that she informed her parents that she was in a relationship and that her parents were disappointed. The Tribunal notes that the second applicant in her statutory declaration of the same date does not mention she mentioned to her parents about their relationship at any point; however she does mention that when she returned to India in 2009 that she was having serious marital problems and that she was pressured to give the power of attorney so her step-father could control her property; and that she was afraid she would not be allowed to return or become an honour killing victim. The Tribunal notes that during the scheduled hearing, the second applicant claimed that she informed mother directly and her step-father indirectly about the relationship and that her step-brother verbally abused her in a disrespectful manner but the second applicant did not state that any of her immediate family members had directly or indirectly threatened her with harm. When asked about her extended family members, the second applicant stated that her step-father had been pressured by others because she had set a bad example. The Tribunal provided the second applicant multiple opportunities to elaborate on specific threats; however her testimony in this regard was evasive and non-specific. The Tribunal also notes that in this statutory declaration and her oral evidence she had felt that her parents might have known about her illicit relationship with the second applicant because they had blamed her for marital problems or that her former husband might have complained about her. These various claims about when the second applicant’s parents may have gleaned about her broken marriage and her adulterous or illicit relationship with the second applicant are inconsistent and speculative. Moreover the second applicant was unable to explicitly elaborate that she had been directly threatened in the past by any immediate or extended family member at all. The second applicant’s overall claims were also undermined in the context of the Tribunal’s credibility finding about the [April] 2014 file note indicating that the second applicant was willing to return to India and that she had no fear of her parents regarding her inter-caste relationship or her divorce from her first husband at the time of the applicants’ protection visas. Given these credibility concerns, cumulatively considered, and with particular emphasis on the department’s file note, the Tribunal does not accept that the first applicant had an ongoing fear since 2009 or at the time of application of her parents for the reasons claimed.
121. The second applicant’s delay in lodging the protection visa since their claimed inter-caste marriage is of serious concern to the Tribunal. The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). The second applicant became an unlawful non-citizen [in] April 2011 after her bridging visa had expired. Prior to that the applicant’s student visa application had been refused by the department [in] June 2011 Between April 2011 and April 2014, the second applicant only approached the department to demonstrate her intention to depart Australia for India. When the Tribunal sought an explanation for the second applicant not applying for a visa at a considerably earlier point in time given the seriousness of her claims that Australia owes her protection obligations or even seeking advice, the second applicant responded that she had tried to remain lawfully in Australia but realised she did not have the right documents; she did not want to be separated from the first applicant and that she did not have enough money for a legal advice. When the Tribunal noted that the applicants had enough money for a wedding in [2014], the second applicant changed her testimony that migration agents and lawyers ‘gave me dodgy ways’. The Tribunal does not accept that the applicants was unable to afford legal advice about protection visas and the second applicant’s oral evidence strongly indicates that she tried to regularise her migration status. The departmental file note from [April] 2014 indicates that the second applicant had been unlawfully working in Australia so was generating some income to access migration advice and assistance in a timely manner. In the context of the Tribunal’s earlier adverse credibility findings, the Tribunal does not accept the second applicant was unable to apply for a protection visa for the reasons claimed. The Tribunal also notes that she claimed to be greatly distressed during this period of time during which she was divorced and [underwent multiple medical procedures] and she lived with great uncertainty. Again the Tribunal notes that during the second scheduled hearing, the second applicant stated she applied because she was not eligible for other visas based on migration advice. Had the second applicant as a genuine or actual personally-held fear of harm from her parents based on her spousal relationships and wanted to better regularise her migration status then it would be reasonable to expect that she would have lodged for a protection visa soon after the second applicant had been become an unlawful non-citizen. For these reasons, the Tribunal does not accept that the second applicant’s explanations for her delay in applying for protection.
122. The Tribunal notes that the timing of the applicant’s visa applications for protection occurred one month after the first applicant had been unsuccessful in appealing to the Tribunal, differently constituted, with regards to his refused skilled graduate visa [in] March 2014. This strongly indicates that the first applicant had jointly applied for protection visas because both the applicants’ migration options to lawfully remain in Australian had considerably narrowed. In the context of the Tribunal’s considerable credibility findings about the second applicant, the Tribunal makes a further finding that the second applicant made her very late claim for a protection application not because she had any genuine or personally-held fears of persecution based on her protection claims to have breached one or more marital taboos valued by her Sikh parents back in in the Indian state of Punjab, either at the time of application, now or into the reasonably foreseeable future.
123. Furthermore, in cumulatively considering these considerable adverse credibility findings, the Tribunal finds that the second applicant has embellished and fabricated many elements of her claims about her Sikh parents and her personal circumstances. Accordingly, the Tribunal is not satisfied that the second’s applicant had ever been threatened with any harm, outside parental or familial disappointment and personal embarrassment, in the past for breaching any marital taboos since arriving in Australia, including divorce, adultery, living in a de facto relationship, being in a marriage that was not arranged or being in an inter-caste or even inter-religious marriage, that would constitute a Convention reasons, including membership of a particular social group or religion, either at the time of application, now or into the reasonably foreseeable future.
124. In making these adverse findings, including about the second applicant’s delay in applying for protection, she has invited the Tribunal to consider that any of her residual protection claims are not credible and she has invited the Tribunal to consider that the first applicant has embellished or fabricated some or many elements of his specific claims that he is owed Australia’s protection obligations.
First Applicant’s Travel History
125. Of particular concern to the Tribunal regarding the first applicant’s credibility has been his travel history and the relevant documentary, written and oral evidence. In this regard, the Tribunal has considered the evidence in the context of its adverse credibly findings about the second applicant’s claims.
126. The first applicant arrived in Australia while holding a student visa in 2008; although he has not successfully applied for a further substantive visa, he has remained in Australia as a lawful non-citizen. During that time the first applicant has made two return trips to India: between [April] 2011 and [May] 2011; and between [October] 2012 and [November] 2012. According to the first applicant’s written evidence in his statutory declaration and his oral evidence at the scheduled hearing, the first return trip was to visit his family while the second occasion was to be part of his [sibling]’s wedding. (Although, as the delegate’s decision records that the first applicant advised the department that his parents were unwell).[33] According to the first applicant’s the April 2014 statutory declaration, he returned to India because his parents had:
[… ] asked me to come back and not marry [Mrs B] because they were aware that honour killings are very common in India and [Mrs B]’s family will create trouble eventually. Out of anger my parents stopped my school fees after that and I just went to some other schools but could not continue my studies. I was so disheartened. I had to go through very hard time. I went to India in 2011 April. (sic)
They did not want me to go back but I kept my travel documents that my friends place so my parents can’t stop me to come back. I talked to them but they took me to my [relative’s] place and told me that whatever had happened with my [relative] that will happen with me too. They were horrified wit that incident and had deep fear in their hearts. My [relative’s] mother was upset with me that I wish to marry the girl who belongs to same caste by whom her son was killed. She tried to make me understand that his cannot be repaired and should not do it again within the same family / cast members. (sIc)
Also [another relative] was very sas after known about my relationship. He said they will never let the girl come to this family who belongs to the case which killed their family member. (sIc)
[33] [file number] DIBP Folio 138

127. These written claims indicates that the first applicant’s immediate and extended family had only expressed their severe disappointment in the first applicant being in an inter-caste marriage with the second applicant’s whose caste had been associated with an honour killing of the first applicant’s [relative]. It also indicates that the first applicant had been financially penalised and warned that his wife would not be allowed to visit. There is no indication of threats of harm or honour killings. During the first scheduled hearing, the applicants’ claimed that the first applicant is estranged from his parents but that he had fears of any serious or significant harm from them. He also stated that his [relative] spoke positively about honour killings in the past and believed he was involved in an honour killing of a girl. As discussed during the first scheduled hearing, the first applicant appears to have embellished his claims between what was written and what had been presented at the hearing.
128. What was claimed is that there are members of the first applicant’s extended family have made thinly veiled threats about killing the applicants, if they return to India. Members of the extended family include the first applicant’s [relatives]. Noting that the first applicant claimed that he had been warned in 2011 about an inter-caste relationship, it was discussed during the first scheduled hearing that the first applicant returned a second time between October 2012 and November 2012. The first applicant had advised the Department of Immigration that his parents were unwell as the reason for his return trip. According to the delegate’s decision record and the first applicant’s 866 form, the first applicant mentions on file that he returned to India to attend his [sibling]’s wedding. The applicants also submitted wedding invitations for the first applicant’s [sibling] to support his claim. In his oral evidence, the first applicant insisted, during this second trip, that members of his extended family members have killed family members in the past for breaching marital taboos and he understood his [relative]’s words to be a threat to both his wife and himself. Based on the submitted evidence, the Tribunal accepts that the first applicant returned to India for the purposes of his [sibling]’s wedding as claimed. However, accepting this specific claim does not diminish the Tribunal’s concerns that the first applicant needlessly deceived the department and this deception has further invited the Tribunal to consider that the first applicant has provided other misleading or false information to either the Department or the Tribunal for migration purposes.
Furthermore, the Tribunal is concerned with the credibility of the first applicant’s specific claim that he had a personally held fear of being harmed if the applicants were to return to India is undermined by the claim that he had a fear of being harmed in 2011 and then returning the following year. Had the first applicant’s parents actually discontinued with his tuition fees and feared they would not allow him to return to Australia in 2011, he would not have returned in 2012 for any purpose. Had the first applicant held a genuine or personally-held fear of harm or had been threatened by any member of his immediate or extended family for the claimed reasons, he would not have returned to Indian in 2012 after he had been ostracised and had threats conveyed by family members in 2011. Overall the applicant’s travel history and oral testimony seriously undermined the first applicant’s credibility that he had ever been ostracised or threatened in the past or that his and the second applicant would face any serious or significant harm in the foreseeable future and it further invites the Tribunal to consider whether there are other inconsistencies that undermine the applicants’ overall claims.
First Applicant’s Visa History
129. In the context of the first applicant’s travel history and the Tribunal’s findings about the second applicant’s travel and visa history, the Tribunal has considered the available evidence about the first applicant’s visa history.
130. Had the applicants a genuine fear of persecution arising from their respective parents or community members knowing the couple were in an inter-caste relationship then the Tribunal would have expected the applicants not to have returned to India. In this respect the applicants have consistently claimed that they were waiting for their respective parents to accept their inter-caste marriage. They did not claim they were unaware of protection visas. However the Tribunal has considerable credibility concerns about the reasons for the lateness of his claims.
131. Firstly the Tribunal notes that at no stage did the first applicant between 2008 and 2014, submit information regarding a fear of returning to his country, despite leaving the country twice. As the Tribunal’s above findings about the first applicant’s travel history state, had the first applicant held a genuine fear of harm he would not have returned to India a second time in 2012, he would have made at least lodged an earlier application for protection soon after his return. Secondly, based on the first applicant’s own earlier admissions that he departed Australia for India a second time, he told the Department the reason was due to his parent’s health and not because of his [sibling]’s nuptials. Having provided false information provided to the Department in the past indicates that the first applicant has submitted further false information. Thirdly, the Tribunal has considered an earlier Tribunal finding that the first applicant has given or caused to be given false and misleading information in relation to his earlier skilled graduate visa application in the past. Pursuant to s424AA, this information was put to the first applicant to which he replied that his previous agent had been responsible. The Tribunal notes that he has been consistent in making this claim since his merits review application for the refused skilled graduate visa decision. However the Tribunal finds the consistent claim to be unpersuasive given the first applicant had knowingly provided his signatures to application forms and therefore had given cause to submitting false information. This finding also undermines the first applicant’s claim that he believed he had a strong expectation of being successful during this appeal. Fourthly, the Tribunal notes that both applicants lodged a protection visa after the Tribunal, differently constituted, in April 2014 following the decision to affirm to refuse to grant the first applicant’s skilled visa application. The skilled graduate decision as his agent had told him he would be successful on appeal. Fifthly, the first applicant also inconsistently argued that he was not made aware of protection visas by his agent even knew his friends had used protection visas in the past. In this regard, the Tribunal notes that the first applicant’s claim during the second hearing that protection visas was the only option for them because they could not satisfy the criteria for any other visas. This particular testimony has invited the Tribunal to consider in the context of other credibility concerns that the only reasons the applicants applied for protection visas was because their migration options had seriously narrowed in 2014 and not because of any genuine personally held fears of persecution in returning to India. These specific inconsistencies are of significant concern to the Tribunal regarding the applicant’s overall credibility.

132. In context of the Tribunal’s earlier concerns and findings about the second applicant’s travel and visa histories and the first applicant’s own travel history, the Tribunal finds that the first applicant did not apply for a protection visa, either individually or with the second applicant, because he had any urgent fear of persecution based on his inter-caste marriage with the second applicant, should he return to India. Based on these findings that the past conduct of the first applicant has entailed in providing false documents and information for migration purposes, the Tribunal does not accept that the responsibility with the quality or the timing of previous migration advice and assistance lay with the applicants’ previous agents or lawyers. The Tribunal accordingly finds that the first applicant is not a reliable witness providing consistent evidence as he has submitted fraudulent documentary evidence to Australian authorities in the past for migration purposes. This specific finding about the reliability of the first applicant has further invited the Tribunal to consider that other oral, written and documentary evidence submitted by the applicants has been unreliable, embellished or fabricated for migration purposes.
Credibility Concerns about the ‘[Mr E]’ incident and related claims
133. The applicants have claimed that they face a real chance of serious harm or a real risk of significant harm due to their inter-caste relationship harm if they return to India, due to the inter-caste relationships between [Caste 1] and [Caste 2] had deteriorated since the 2009 [Mr E] incident.
134. During the scheduled hearings, the first applicant provided oral testimony at the hearing and submitted to the Tribunal indicated that [Mr D] and cousins (not his own) killed a young man named [Mr E] who was distantly related and known to the first applicant. [Mr E] was allegedly killed by [Mr D]. The killing was motivated, according to the applicants, due to an inter-caste relationship. According to the second applicant, this [Mr D] was not her father. The first applicant was unable to describe how the first applicant was related to [Mr E] and vaguely recounted that he knew [Mr E] as a child. Key to the first applicant’s claim is that [Mr E] belonged to the same caste community as his own while [Mr D] belonged to the same caste as the second applicant. It was relatedly claimed that the killing created a great deal of bad blood between the applicants’ respective caste communities and has heightened the chance or risk of the applicants being seriously or significantly harmed or even killed if they return to India. The applicants submitted an article dated [in] September 2009 which was accompanied by translation (not certified by an NAATI registered translator) to both the Department and the Tribunal. The Tribunal examined the translation of the article and discussed it with the applicants during the second hearing. The Tribunal notes that both the delegate in the decision record and the Tribunal during the second hearing raised the matter of the translation not being certified by a NAATI registered translator The Tribunal further noted during the second hearing that there was no mention of the relationship which led to [Mr E]’s tragic death and the prosecution of [Mr D] for the killing as being an inter-caste relationship.
135. The Tribunal accepts that such an honour killing of [Mr E] occurred and that it was motivated because [Mr E] had breached a marital or religious taboo within the Sikh community when he tried to arrange a love marriage with [Mr D]’s daughter who was betrothed into an arranged marriage. The Tribunal accepts, based on the applicants’ own testimony, that this [Mr D] reported in the article was not the same [Mr D] who is the second applicant’s father. The Tribunal also notes, as raised in the hearing, that the authorities took this incident seriously as there was the prosecution of [Mr D] and other involved in this actual honour killing. Although the first applicant did not accept this and suggested there was something faulty with the translation of the article he submitted, there is nothing in the submitted media reports to indicate that [Mr E] had been killed due to an inter-caste relationship or even to indicate to which caste [Mr E] may have had membership.
136. However, in the context of the Tribunal’s earlier credibility concerns, it does not accept that the first applicant, who was unable to clarify how he knew or was related to [Mr E], was actually known or related to [Mr E] based on the first applicant’s very vague testimony in this specific regard.
137. Related to this specific claim, the applicants have submitted a number of documents to indicate that [Mr E] incident was relevant to the applicants’ claims. In this respect, the applicants claimed that [a relative] of the first applicant, [Mr H], had assisted in providing a number of documents to the Tribunal in 2016, including [Mr E]’s death certificate, a 2009 First Incident Report about the [Mr E] incident court reports, and affidavits from community leaders who had spoken to the second applicant’s father about the applicants’ love marriage. As discussed in both hearings, obtaining fraudulent documents claiming to be from Iocal courts, the police or medical professionals in India and obtaining affidavits with false information for migration purposes is a widespread practice and this country information has invited the Tribunal to have a responsible suspicion that these documents are unreliable.
138. In the context of its earlier finding as outlined about the first applicant’s past conduct in providing false documents and the country information about the prevalence of fraudulent documents emanating from India for migration purposes, the Tribunal has significant doubts about the reliability of documentary evidence pertaining to the [Mr E] incident, related to the applicants’ claimed fears.
139. In the same context the Tribunal has considered the late written and oral claims for the 2017 hearing that [Mr H, relative] of the first applicant had been spuriously charged and jailed as the second applicant’s father became aware that the [relative] had been passing information to assist the applicants in their love marriage. However, the applicants were unable to explain to the Tribunal how [Mr D] became aware of [Mr H’s] assistance or what charges had been placed on [Mr H]. Neither were they able to provide a First Information Report (FIR) from the courts or the police related to this claim. Nor had they ask the wife of the first applicant’s [relative] about the charges and that providing an FIR would be difficult because the [wife of the relative] who told them about the recent charges is too frightened to assist the applicants any further. The second applicant said [Mr H] was going to appeal the matter which further invites the Tribunal to consider the ready availability of a FIR pertaining to these specific claims. Based on the Tribunal’s considerable earlier adverse credibility findings and the evasive responses to the Tribunal’s specific question about this specific claim, it does not accept that the applicants’ claim that the first applicant’s [relative] had been falsely or actually charged or imprisoned and it finds this specific claim to have been fabricated for the purposes of augmenting their otherwise weakened claims for protection.
Cumulative Credibility Findings
140. In this review application, the applicants have provided considerable written and documentary evidence as well as extensive oral testimony in order to substantiate their claims that they are owed Australia’s protection obligations. Despite the absence of a representative to attend the hearings and in acknowledging that appearing before a Tribunal can be stressful, the Tribunal is satisfied that they were given a real and meaningful opportunity to give evidence, to present arguments and to submit further evidence in relation to the issues arising from the decision under review in a manner that was consistent with s.425 of the Act.
141. However, having considered all the available evidence and the Tribunal’s specific findings above as well as the country information, the Tribunal finds that the applicants’ overall written, documentary and oral evidence has not been strengthened by the volume of their evidence, fraudulent or otherwise, and has been seriously undermined by the accepted history of the first applicant in providing fraudulent documents, as well as both the applicants’ overall travel and visa histories. It is in this context that the Tribunal makes the following adverse credibility findings against the applicants facing a real chance of serious harm for a Convention reason or for the Tribunal to have substantial grounds for it to believe that the applicants will face a real risk of significant harm if they are removed from Australia:
142. While the Tribunal accepts that the applicants belong to separate caste communities and that they are in a genuine spousal relationship, it does not accept that their respective parents back in Punjab have ever ostracised, shunned, rebuked or threatened to harm either of the applicants when they travelled back to India since first arriving in Australia, as claimed.
143. It does not accept that the first applicant had ever had any tuition fees cancelled by his parents because of a suspicion or knowledge that he was in an illicit or unapproved inter-caste relationship in 2011; it does not accept that he was ever threatened, indirectly or otherwise, by any immediate or extended family members. Because the first applicant is such an unreliable and deceitful witness, the Tribunal does not accept that the first applicant encountered any difficulties with his parents and extended family members on his second return or that he feared family members would try to stop him from returning to Australia during these visits. Neither does the Tribunal accept that any immediate or extended members of the first applicant’s family had ever been involved in honour killings in the past or had approved of such practices.
144. With particular emphasis on the second applicant indicating to the Department in 2014 that she would depart and in not mentioning her fears about her inter-caste relationship, the Tribunal does not accept that when the second applicant had earlier returned to India, she had experienced any difficulties with her parents or that her parents had disapproved of the applicants’ relationship because the relationship was inter-caste or taboo or for any related reason, as claimed. It does not accept that the second applicant’s characterisation regarding any of her family members that they were motivated to harm either the applicants, if either of them returned to specifically to their home state of Punjab, or India more generally, now or into the reasonably foreseeable future. In particular, it does not accept that the second applicant’s father was in any way influential or well-connected as [an employee of the legal system] back in Punjab, as claimed or that the person in question will in any way target the applicants or direct serious or significant harm towards the applicants for the claimed reasons.
145. There has been a strong element in the applicants’ claims that they have tried to thread a fabricated narrative around the prevalence of honour killings among Sikhs in Punjab. They did this by evoking a specific, albeit tragic, honour killing from 2009 with their own circumstances. From this starting position, the applicants have subsequently provided embellished and fabricated written, oral and documentary evidence to augment their otherwise very limited written claims at the time of application. Accordingly, the Tribunal finds that that the 2009 [Mr E] incident had no connection to the applicants’ personal circumstances beyond being an actual incident that occurred in Punjab and that it involved an honour killing. There is no independent country information or submitted translated reports to indicate that the [Mr E] incident was an inter-caste honour killing; neither is there is any credible or reliable written or oral evidence from the witness or from third parties that [Mr E] was related to the first applicant or they were mutually aware of each other in the past as claimed.
146. With particular emphasis on the adverse findings above that the first applicant had previously provided fraudulent documents to the department, the Tribunal has consider that the specific testimony of both applicants about harm in the past, about harm caused to others based on their inter-caste relationship or the real chance or real risk of harm arising from their claims that that their relationship was not approved or was outside of orthodox or widespread Sikh marriage practices to have been embellished or fabricated. In this regard, the applicants have submitted a great deal of documentary information about their personal circumstances to support their critical or dispositive claims. When considering the applicants’ overall evidence, the Tribunal is unable to provide the applicants with any benefit of the doubt about its otherwise reasonable suspicions they knowingly submitted fraudulent material. Accordingly the Tribunal finds that the applicants did provide fraudulent documents including a FIR, affidavits, court documents and hospital reports to deceive the Tribunal and to augment their otherwise weak written claims for protection for migration purposes. In particular, the Tribunal finds that the more recent incidents of harm regarding [Mr H] to have been fabricated to strengthen their otherwise weak claims for protection.
147. As stated above, the delay in lodging the protection visas since their claimed inter-caste marriage, in the context of the applicants’ travel histories is of serious credibility concern to the Tribunal. The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). Of the greatest credibility concern to the Tribunal has been the recorded evidence by a departmental official that the first applicant did not have any genuine fears in returning to India in the days prior to applying for protection visas. During the first hearing, the second applicant had claimed the departmental official had lied. In the resumed hearing, she said the account was correct. Of course the official had no reasons to mislead and the oral evidence had been inconsistent. The Tribunal accordingly does not accept the second applicant’s original account based on this inconsistency and in the context of its considerable credibility concerns.
148. In cumulatively considering all the adverse findings as outlined above, the Tribunal finds that the applicants did not have genuine or urgent personally-held fears of persecution, either at the time of application, now or into the reasonably foreseeable future. Based on the Tribunal’s adverse credibility findings, cumulatively considered, the Tribunal finds that the applicants applied for protection visas because their migration options had considerably narrowed and accordingly presented considerably embellished and fabricated protection claims for migration purposes and not because they had any genuine claims that Australia owed them its protection obligations.
149. Furthermore, based on these extensive adverse credibility findings, the Tribunal finds that the characterisations of immediate and extended family members, including the applicants’ parents, either in the past, now or into the foreseeable futures, being motivated to harm the applicants based on their inter-caste marriage or that their marriage was not approved or for any related claim to have been a fabrication for migration purposes. Based on the same reasons, neither does the Tribunal accept there is any credible evidence to believe the second applicant feared any family members over a property dispute in the past or into the foreseeable future.
150. Based on the same credibility findings, the Tribunal finds that there is no credible evidence, individually or cumulatively considered, that the applicants experienced any ostracism or threats, indirect or otherwise, of serious or significant harm in the past by any family member as claimed for the reasons claimed. For the same reasons, it does not accept that the applicants will face a real chance of serious harm from any member of their own immediate families, their extended families or any members of their respective caste communities if they returned to the Indian state of Punjab or anywhere within India, which is a vast, populous and diverse nation.
151. Accordingly, having considered all the applicants’ claims, accepted or otherwise, individually and cumulatively, the Tribunal does not accept that they face a real chance of serious harm for any claimed reasons relating to their membership of a particular social group, their religion, their political opinion, imputed or otherwise, or any related Convention reason if they return to India in the foreseeable future, based on these claims and that that the applicants do not have a well-founded fear of persecution for a Convention reason and do not satisfy s.36(2)(a), in this regard
152. Based on the same extensive adverse credibility findings, the Tribunal finds that there is no substantial reasons for it to believe that the applicants, as a necessary and foreseeable consequence of being removed from Australia to anywhere in India, will face a real risk of significant harm at all, pursuant to s.36(2)(aa).
Additional Findings
153. During the scheduled hearings, the applicants argued that some harm will arise in them returning to India because of the length of time they have spent in Australia where they feel settled, that they will also have to be separated from their [pets] and that they were not mentally well and that they have little to show for their time in Australia by way of qualifications and work experience.
154. The Tribunal finds that the applicants will face some distress in returning to their home country, including departing to India without their pets and by leaving behind their new social networks in Australia. It accepts they have not achieved academic and employment goals since arriving in Australia. The Tribunal also accepts that the applicants have some treatable mental health problems arising from the prospect of returning to their country of nationality and, as the second applicant had claimed, ‘that they had been wasting their time doing this’. The Tribunal notes the applicants did not provide any medical information to support this claim. It is also noted they have each other for material and emotional support.
155. The Tribunal does not accept that there is a real chance of serious harm for any Convention reason arising from these claims, as there are no Convention reasons related to these claims and because the harm, individually and cumulatively considered, does not amount to serious harm that would satisfy as defined non-exhaustively by s.91R(2) or by operation of s.91R(1)(b). Accordingly, the applicants do not satisfy s.36(2)(a) for these reasons.
156. In considering the complementary protection provisions of the Act, the Tribunal finds there is a real chance of harm based on these same specific claims. However the Tribunal finds that the harm arising from these concerns, individually and cumulatively considered, does not amount to any significant harm, including being subjected to degrading treatment or harm. Accordingly the Tribunal finds that there is no substantial grounds for it to believe the applicants, as a necessary and foreseeable consequence of being removed from Australia to India, will face significant harm, pursuant to s.36(2)(aa), in this regard.

Cumulative Findings
157. Accordingly, having considered all the applicants’ claims, accepted or otherwise, individually and cumulatively, the Tribunal does not accept that they face a real chance of serious harm for any claimed reasons relating to their membership of a particular social group, their religion or any related Convention reason or, indeed, any other reasons at all, if they return to India in the foreseeable future.
158. The Tribunal finds that the applicants do not have a well-founded fear of persecution for a Convention reason and do not satisfy s.36(2)(a).
159. Having considered all the applicants’ claims, both individually and cumulatively, the Tribunal finds that there is no substantial reasons for it to believe that the applicants, as a necessary and foreseeable consequence of being removed from Australia to anywhere in India, will face a real risk of significant harm at all, pursuant to s.36(2)(aa).
Conclusion
160. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c).
DECISION
161. The Tribunal affirms the decision not to grant the applicants protection visas.
Brendan Darcy
Member

[2017] AATA 2732

8 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction