1502162 (Refugee)

1502162 (Refugee) [2017] AATA 1959 (2 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1502162
COUNTRY OF REFERENCE:                  India
MEMBER:Rachel Westaway
DATE:2 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 02 October 2017 at 11:42pm
CATCHWORDS
Protection visa – India – Particular social group – Women – Divorced women – Mixed-caste marriages – Family violence – Honour killings – Arranged marriages

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] February 2015.
The applicant appeared before the Tribunal on 1 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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’).
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.
The issue in this case is whether there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if she returns to another country. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant came to Australia as the dependent on her husband’s [temporary] visa [in] July 2012. The marriage broke down around September 2012 and the applicant applied for a protection visa [in] January 2014. The applicant has not departed Australia since arriving here in 2012. [In] December 2015 the applicant married [Mr A]. He is currently in Australia on a [different temporary] visa.
The applicant was not represented and at the time of hearing, the Tribunal asked the applicant whether she had considered other visa options and she said at this point in time she and her husband did not want to peruse other options because she did not want her husband mixed up in her immigration issues. She also said that her husband did not want her to be in the same situation as she was previously in namely dependent on him for a permanent visa. The Tribunal explained to the applicant the legislative requirements to be met for protection visas.
Claims contained within her application
The applicant stated that she is an educated woman from Haryana in India. She entered into an arranged marriage with [name] but after a short time the marriage dissolved because of domestic violence. She fears that her ex-husband’s family will try and harm or kill her. She supplied the following material:
·Copies education certificates and schooling results (f: 55-64);
·Copy letter of employment, undated (f: 68);
·Copy medical certificate, dated [in] September 2012, Dr [doctor’s name] (f: 69);
·Copy letter of complaint, dated [in] December 2013, provided by, [Mr B, Office Bearer], National Commission for Women (f: 70);
·Response to letter of complaint from National Commission for Women, undated, from [Mr C], (f: 71-75);
·Copy affidavit, dated [in] January 2014, provided by applicants father, [named] (f: 76-77);
·Copy Australian intervention order, dated [in] September 2012 (f: 78-81);
·Copy affidavit for e-filing application (divorce), dated [in] November 2013, lodged by [name] (f: 82-87);
·Copy wedding ceremony confirmation from [named hotel], Karnal for [a date in] November 2011, undated (f: 88);
·Marriage Registration Certificate, dated [in] November 2011 (f: 89);
·Copies applicant’s bank statements (f: 101-103);
·Copy Australian intervention order, dated [in] February 2014 (f: 117);
·Divorce Order (f: 118-120);
·Affidavit, dated [in] July 2014, [relative name], relative of applicant (f: 122-126).
Tribunal Submission
Following the applicant’s protection visa application, she remarried. She has supplied the Tribunal with a copy of her marriage certificate to [Mr A], a residential tenancy agreement from [real estate company] for a property in [Suburb 1] which is under hers and her current husband’s name. A receipt for a bond for the same property. A receipt for a reception dinner at the [Venue 1] and several statements of a joint bank account. She also supplied copies of photographs from her wedding.
The applicant also provided a copy of an intervention order which she applied for against [name] her former husband.
She also supplied a submission dated 29 June 2016. She stated the following:
She came to Australia [in] July 2012. She was a dependent on her husband’s visa. She left the relationship in September 2012 due to domestic violence. She believes she needs protection because her in-laws have threatened her. She claims she has suffered depression because of her husband and in-laws. She also stated that she suffered severe physical assaults.
She met and married [Mr A], her current husband. His caste is [Caste 1] and he is from Punjab and the applicant states that she is a different caste. She is a [Caste 2] from Haryana.
She claims that no one in her family accepts the relationship. She also states that her former father-in-law is a [Caste 2] and because she has married out of the caste he can take revenge on her. She claims that women, particularly in Haryana are treated badly and are helpless, defenceless and maltreated in the name of honour and as she has married out of her caste. She claims that she cannot obtain protection from Council or police.
She claims that there is a rule in [Caste 2] barring marriage against social norms and so if she returns she will have no security.
She stated that she is worried about honour killings. She stated that she belongs to Bhutana and there have been honour killings in the past and she supplied a Wikipedia link to a case which referenced a killing between Manoj and Babli who both belong to the Banwala gotra.
She summarised by saying that couples are selectively targeted and she believes it is to control women’s sexuality and that possessions remain controlled by men. She claims relocation is not possible.
The applicant stated on her response to hearing form that “I loose words when I nervous in interview it happened to me last time. It’s hard for me to express completely the things”. A Hindi interpreter was requested for the applicant and used for the duration of the hearing.
Evidence at Hearing
[The applicant] confirmed she is [age] years old and is a Hindu. She said she was born in India in Haryana and her parents remain in Haryana. She said she as a younger brother who is [age] years old and is at school. He is studying [subject] at high school and lives with her parents.
Her family have not been to Australia. She said her father in no longer working but was a manager in a [product] company. His responsibility was to [duties specified]. Her mother manages the house. She stated her father had mental health issues so he left his employment.
She said that in 2012 her parents were insulted. They were ostracised in their community. She said her brother was beaten and experienced legal problems and every second day the police would come and arrest him and he had to sign certain documents.
She said that people within the community would say that their daughter (the applicant) was doing bad things in Australia. She said that her father was told by people at his work to bring the applicant back from Australia because she was prostituting herself.
The applicant said her husband’s [relatives] were in power at that time and her in-laws said that they are sorting things out in India but they didn’t. She said that her parent’s in-law would say this to her.
The Tribunal clarified with the applicant whether she meant her former in-laws were spreading rumours about her due to her new relationship. The Tribunal queried this given her divorce and remarriage occurred in Australia.
The applicant said she is not sure how she is going to explain this. She said that her in-laws are angry and ashamed of her. She explained that because of the divorce and the fact that she complained to the police about the domestic violence she experienced and she was successful in obtaining an intervention order they remain angry. After this her former husband would threatened her that she would not be good enough for anything else. She said that her family experienced many problems because of them and her parents changed homes [several] times. She is afraid she will be killed and they will do justice in their own way.
She said that even her parent’s neighbours ask where the applicant is and have threatened that they will not let her live. The Tribunal put to the applicant that a police force is present in India and has broad powers of arrest
The Tribunal has had regard to the DFAT Country Information Report for India, 15 July 2015 which discusses avenues open to applicants in seeking police protection.
“Each state and union territory maintains separate police forces which, according to the National Crime Records Bureau (NCRB), had a combined strength in 2013 of 1.7 million officers of all ranks (although this varied considerably from state to state). The Indian Police Service is recruited and managed by the Central Government and officers are posted to senior positions within state police forces. In addition, the Central Government has oversight of a number of armed police organisations (such as the Assam Rifles, the Border Security Force, the Central Industrial Security Force, the Central Reserve Police Force, the Indo-Tibetan Border Police and the National Security Guards) and others (such as the Bureau of Police Research and Development, the Central Bureau of Investigation, the Directorate of Coordination of Police Wireless, the Intelligence Bureau, the National Crime Records Bureau, the National Institute of Criminology and Forensic Science, and the National Police Academy).
In general, police in India have broad powers of arrest, including arrest without a warrant where they have a ‘reasonable suspicion’ of a connection to criminal offenses. To report a crime, citizens may lodge a First
Information Report (FIR) at a police station. The Supreme Court has recognised the difficulty faced by some victims of crime in having an FIR registered, and has directed that the registration of FIRs should be mandatory for cognisable offences – those serious crimes for which police do not require a warrant to arrest a suspect.
According to a 2009 report by Human Rights Watch and other sources, the capacity of India’s police forces
is limited by poor infrastructure, insufficient personnel, inadequate training, poor living conditions for low-ranking officers, insufficient remuneration and a lack of training and equipment to conduct their duties. India also has relatively few police officers per capita – 129 per 100,000 people, compared to a global average of 350. Only around five per cent of Indian police officers are female, while only six per cent of Indian police officers are Muslim (despite Muslims comprising 13.4 per cent of the population)”.
There were certain things that were said. She claims that her parents obtained legal advice and commenced with legal proceedings but she stated that she is not sure of the outcome. Her father abandoned the proceedings and said you sort yourself out and don’t come back. She said that the case was not heard in court. She said that the High Commission in India called her and told her the results. She asked the Commission in Australia and they said that it is out of their control and recommended that she lodge a case against his family.
She claims that when her brother was beaten up several times and father abused at work the police did not make a report and said that the applicant should listen to what her husband says and know her limits. She claims that she always felt like she was to blame. When her husband initiated the divorce he also removed her from the visa and she said the case officer asked her why she did not initiate it.
She said that she experienced domestic violence. She claimed her husband would sit on her chest and beat her.
She confirmed that she remains in contact with her mother and telephones her but she does not speak to her father or brother. She last spoke to her father about 7-8 months ago.
The applicant confirmed her second husband is kind and doesn’t hurt her. They live together in [Suburb 1] and she works as [an occupation]. He is Punjabi and not Hindu. His parents know he is married to her. They are not supportive of the wedding but he is trying to get them to come around. They didn’t want him to marry a divorcee and someone from another cast. He is on a [temporary] visa and is a [different occupation].
The applicant last spoke to and saw her ex-husband in February 2014. She said that he previously followed her but she has not seen him since early 2014. She knows nothing about him and has no idea if he is still in Australia.
She said that in January 2014 she spoke to her in-laws on receipt of her divorce papers. She said that they were difficult and called her a prostitute during the divorce but she is worried that now they will not spare her and she claims she faces the same issues with her own blood relatives who state that she is divorced and in an inter-caste marriage have said she must leave home or leave us otherwise they will not spare her.
The applicant stated that no complaints were lodged and yet her parents were government employees. She said things have happened. The Tribunal asked the applicant if she has any evidence to support her claims about the court case or the threats she or her family have received or her brother’s bashings. She said that she has no paper evidence.
She said her former husband’s family were politically connected. She said that in 2016 the [specified family members] held senior positions. She said they have significant influence in Haryana.
The Tribunal asked the applicant about her concerns regarding an inter-cast marriage. The Tribunal noted that Khapp Panchayat is the union of a few villages, mainly in north India though it exists in similar forms in the rest of the country and they act in a similar as quasi-judicial bodies that hand out harsh punishments based on old customs and traditions.
The applicant detailed in her submission her fears of an honour killing at the hands of her former in-laws claims due to her inter-caste marriage and their support of the [Caste 2] system and their political influence. She stated she is [Caste 2] from Haryana and her husband [Mr A] is a [Caste 1] from Punjab. She claims that her own family do not accept the marriage and she has stated that she fears harm from her former in-laws as they are [Caste 2] and highly connected politically. She claims that this marriage provides an opportunity for her former father-in-law to take revenge. She stated that [Caste 2] has “severe beliefs” and women are “helpless, defenceless and maltreated in the name of honour” and women are forbidden to marry from the same caste and state protection is irrelevant and the applicant claims she will be subjected to severe rules and punishment. She stated that she belongs to Bhutana and there have been honour killings in the past and she provided media links as evidence.
The applicant confirmed her mother is [an occupation] and her father worked in [an agency] prior to retiring. Her mother has been at the same [workplace] for 2.5 years and because they had to move to escape the threats and problems they encountered it was hard to find new employment. Her brother had to change schools from where he was studying as well. She said her family changed everything but nothing has changed. People know everything. She said even though her parents don’t interact with neighbours people asked questions, even co-workers. She said that her family were ostracised from the [Caste 1] community and they are only safe because they disowned her.
The Tribunal put to the applicant that the issues she seems to be claiming are that she and her family are targeted because she is divorced and because she has married outside of her caste. She agreed and also agreed that she is no longer considered a divorced woman as she has remarried. The Tribunal asked the applicant why she could not return to India with her husband and live somewhere else.
She said that has completed [a qualification] in India which is considered to be the highest level. She wants a job and security. She has no security and nothing in Haryana and will struggle to get a job. There is so much discrimination and [Caste 1] have discriminated against her already and they will inform others and she will struggle to get work. The Tribunal asked the applicant about her husband and whether he would support her financially and whether she needs to look for work. She said that he doesn’t understand Hindi. She said his [relative] lives in Delhi and could look for a place but that is not her concept of survival. The unemployment rate is high and it is hard to survive.

Her current husband’s family live in Punjab and do not accept the applicant. She said that she thought her life would get better after she was remarried but now it is more of a hell.
The Tribunal asked about the harm her brother and father have experienced. She said that her brother was bashed-up on numerous occasions and her father was harassed at work. Said that the incidents were reported. The Tribunal asked what happened when these incidents were reported and she said that the police would pick her father up and take him away and ask him to sign something he had no awareness of. She said that the police did nothing.
She said that the perpetrators would say bad things about applicant. She said that there were at least two fights outside of her family home. She said that her father was picked on outside of the house and her brother beaten when he intervened. He suffered a fracture and had had marks on his body. She said that he also received a facture on his back and he was bedridden for 6-7 months. The Tribunal asked the applicant if she has any or can obtain any medical evidence of the injuries and treatment but she said she has nothing and that she was always blamed.
She stated that even in India she experienced domestic violence at the hands of her husband. She said that her mother-in-law did nothing, the Tribunal asked the applicant if she told her parents what she was going through and she confirmed that she did. She said her father said she could come home. This was when she was newly married. The Tribunal stated that it is contradictory that her father offered to have her back when she was first married and told them about the domestic violence but now she fears harm and he won’t speak to her. She said that this was in the first three months of the marriage and her family had not been targeted by her in-laws or the community then and she had not lost their respect. She said it was a matter of huge shame to them.
She stated her new husband does not want to go back to India. He has been in Australia for 8 years and she does not want to put his life in danger. She said she doesn’t know where she will live tomorrow or if she will die. She is alone today. She has her new family here and a husband who cares for her and she does not want to destroy his life. She said that she has an education and wants to work and do well and they know the language here and have security and they can’t go to any other place in the world. She said she is not going to leave Australia because she knows she will be killed on arrival and we will hear about it in the news.
The Tribunal asked the applicant if she has any connection with Nepal. She said no and she could be safe because it is easy to go from India to Nepal and those that seek to harm her will follow her and will not let her live.
The applicant again stated that her former in-laws are politically powerful and know everyone and everything. The applicant stated that she will send a missing document that includes details of her former in-laws’ political status by the close of business on 6 July 2016. There are three family members involved in politics and one is [an office bearer]. She said that one is the [specified relative] of her former father in law and the other is [a different family member].
On 7 July 2016 the applicant provide further information post hearing about her former in laws and their political connections. She detailed in her letter that [Mr D] is her former father-in-law’s [Relative A] and was standing for the [local] municipal election in 2016 along with her former father in law’s [Relative B]. She also attached a print out of nomination details for council elections and highlighted was [Mr D], the [relative] and [another named relative]. She supplied a link to past elections as evidence that [Mr D] her former father-in-law’s [Relative A] was a council member.
She also stated that she has been receiving counselling from [a welfare agency] for two years and found a job with their assistance but has experienced exaggerated depression and mental disturbances and is forgetful and has backlashes (sic).
The applicant was offered the opportunity to provide further details to support her case and she stated that she had nothing further to add and the hearing concluded.
FINDINGS AND REASONS
The Tribunal finds on the basis of the evidence before it, including the applicant’s passport, that the applicant is a national of India. The Tribunal has assessed the applicant’s claims against India as her country of nationality for the purposes of the Convention and her receiving country for the purposes of s.36(2)(aa).
The Tribunal finds that the applicant at the time of hearing was [an age] years old Hindu female from Haryana. The Tribunal accepts that the applicant is divorced from her first husband and relies upon supporting evidence of her divorce order issued by the Family Law Court in Australia and initiated by the husband.
The Tribunal accepts that the applicant was subjected to domestic violence during her first marriage both in India and in Australia and relies up on the applicant’s oral evidence, submissions and intervention order. The Tribunal has considered independent country information from DFAT Country Information Report, India and dated 15 July 2015, which confirms domestic violence against women has been a criminal offence since 1983 and was strengthened with the Protection of Women from Domestic Violence Act 2005. However, credible non-government organisations in India have described a very high prevalence of domestic violence.
The Tribunal accepts that the applicant’s first marriage was arranged based on her oral evidence and independent country information before the Tribunal. The Tribunal also accepts that the applicant’s divorce from her first husband would be considered against normal social practices. DFAT reports arranged marriages continue to account for the overwhelming majority of marriages across India. Parents and/or significant family members are often solely responsible for making a decision about who children marry, particularly in north India. Many parents consider arranging a marriage for their children a right and duty, and may not accept modern marriage practice such as a son or daughter choosing their own spouse. There is enormous social pressure for women to marry by their mid-20s and men by their mid-30s. Although the divorce rate has increased in recent years, particularly among the affluent middle classes, India has one of the lowest divorce rates in the world at an estimated one in 1,000 marriages. As such, the Tribunal is prepared to accept that the applicant’s family were often asked about her situation and were ostracised in their community and insulted in 2012. Given the conservative nature of Indian society around women, arranged marriages, divorce and inter-cast marriage, the Tribunal accepts that people at her father’s work knew she had left her husband and may have suggested she was doing bad things in Australia and prostituting herself.
The applicant in her initial application stated she feared harm as a single, divorced woman in India. The applicant has since remarried. The Tribunal accepts that the applicant has remarried based on the wedding certificate she has provided. She has confirmed with the Tribunal that she would not be considered as a single, divorced woman any more due to her marriage. As such, the Tribunal has not assessed this claim which was initially made by the applicant.
The applicant claims she does not want to return to India because she will be discriminated against and culturally and economically isolated as a woman. She dismissed the fact that she has remarried by stating that she would have to return by herself because her husband does not want to live in India and that he is on a temporary visa in Australia and she does not want him to return to India for her as he has been living in Australia for many years. There is nothing before the Tribunal to suggest that the applicant’s husband has the opportunity to remain in Australia permanently. This is speculative. However the DFAT India report discusses treatment of women in India. The report states “Section 39 of India’s Constitution recognises certain rights for women, including ‘the right to an adequate means of livelihood’. The Constitution also reserves certain positions for women within reservations for Scheduled Castes, Other Backward Classes and Scheduled Tribes. There are numerous instances of Indian women having achieved high office – including former President Pratibha Patil, and several current and former Chief Ministers. Congress has also had key female members of the Nehru-Gandhi family in senior positions, including as Prime Minister and Party President. There is no uniform civil code in India which means that under India’s system of personal laws, rights for women on issues of marriage, divorce, custody, inheritance and succession can differ between religions and states. This results in persistent discrimination for the majority of women in India. In many parts of India but particularly in the northern states, daughters may be considered a burden, because women often: do not engage in paid work or bring in comparatively less income than men; move with their new husband into his family home; and do not care for their biological parents in their old age”. However, the applicant told the Tribunal that she wants to work and that she is highly educated. The Tribunal acknowledges that discrimination exist in India however it does not accept that the applicant as a female would face discrimination which would equate to serious or significant harm on her return to India because she is highly educated and speaks two languages and is in essence married. Whilst she may not be supported by her own family or her husband’s family, the Tribunal does not accept that she would face discrimination so great that she could not survive and would not be able to find employment, earn a living and find accommodation.
The Tribunal accepts that the applicant and her current husband have entered into an inter- caste marriage. The Tribunal accepts that the applicant is [Caste 2] and her husband is [Caste 1]. The applicant spoke with reasonable knowledge of the [Caste 2] system but provided no evidentiary documentation.
Based on the country information available, the Tribunal accepts that inter-caste marriages are not common in India and that a small amount, in comparison to the overall population have resulted in honour killings. The DFAT India report outlines “Caste is an enormously important factor in Indian society. While predominately associated with Hinduism, caste also applies to other religions in India. The caste system is a system of social stratification which separates 14 communities into hereditary groups. Four principal groups exist within the system’s hierarchy, consisting of thousands of subgroups. There is also significant social pressure for individuals to marry within their own caste and/or religion. While statistics for inter-caste and inter-faith marriages can be variable, an India Human Development Survey conducted in November 2014 reported that just five per cent of Indian women had married a husband from a different caste, with inter-caste marriage being most common in Gujarat and Bihar (over 11 per cent) and rarest in Madhya Pradesh (less than one per cent). Since the election of the Modi government in May 2014, Hindu right-wing groups that claim proximity to the BJP have stepped up social pressure and violence against inter-faith marriages involving Hindus. In rural India, village councils have played a role in upholding conservative community views about marriage and relationships. In January 2014, the Supreme Court intervened after a woman in West Bengal was allegedly gang-raped on the orders of a village council as punishment for having a relationship with a man from a different caste. So-called “honour killings”, committed by the families and communities of those involved in inter-faith and inter-caste relationships, are particularly prevalent in villages and small towns in north India. It is estimated that at least 1,000 honour killings take place each year in India. Members of lower castes are vulnerable to violent reprisals if they are perceived to have entered relationships with members of higher castes”.
The Tribunal accepts that the applicant’s former in-laws have family members who are politically connected and who have run for local election but does not accept that this increases the applicant’s chances of being harmed in these circumstances. Despite the applicant being unable to provide clarity around her former in-laws political connections at hearing she subsequently supplied links to websites indicating the names of people she claims are her in-laws and who had stood for local council election. If these people had any ongoing interest in the applicant, they had plenty of opportunity to approach her family in India from 2012 when they separated, 2014 when the divorce came through or since her marriage in 2015. They have not done so and the Tribunal does not accept that they will in the future should the applicant return to India.
The applicant claims her former in-laws will harm her due to the shame she has brought their family and hers due to the divorce, the intervention order and her inter-caste marriage. She claims that the inter-caste marriage has increased the risk of her being targeted because it provides justification for a potential honour killing by her conservative former in laws who are [Caste 2]. For the following reasons the Tribunal does not accept that if the applicant were to return to India her in-laws would try and seek revenge and harm her. Firstly the Tribunal has considered the divorce order which details that the applicant’s former husband initiated divorce proceedings. It is contradictory that the applicant’s former husband was the one who initiated the proceedings if his family were so opposed to divorce. Secondly the applicant said her father offered to have her return home when she told him of the domestic violence she was enduring in the early days of her marriage. It is inconceivable that he would offer this if he believed that this would further jeopardise her safety at the hands of her former in-laws. Thirdly the applicant has had no contact or threats since early 2014 with her former in-laws. This significant period of time without event suggest they have no interest in pursuing her. Whilst he Tribunal acknowledges that she is in Australia and she claims her own family have moved to avoid being ostracised, if her in-laws were as motivated and connected as she claims then the Tribunal would expect that her own family would have experienced harm by now. For the reasons outlined above the Tribunal does not accept that the applicant and her family are of adverse interest and at risk of serious or significant harm for any reason from her former in-laws.
The applicant fears she will be the victim of an honour killing in India. She has supplied media articles to support her claim that they occur in India. The Tribunal accepts that honour killings occur in India and more often in conservative rural parts of India. The applicant and her former in-laws come from Haryana. As of 2011 census of India, the state is the eighteenth largest by population with 25,353,081 inhabitants. Haryana is one of the wealthiest states of India and has the third highest per capita income in the country. The applicant, her family and her former in-laws are educated and come from a large city. Whilst they hold conservative views there is nothing before the Tribunal that gives weight to the fact that they would use their political weight and connections to harm the applicant. They have done nothing to date to the applicant’s family in India and a significant amount of time has passed. The applicant remains in contact with her mother. Whilst she did state that she does not speak to her father or brother anymore she stated that she last spoke with her father 7-8 months ago. This is well after her second marriage. The regularity of contact and how recent it has been do not support the applicant’s claims that her family are likely to kill her. The fact that the applicant’s father offered to have her return home after she suffered domestic violence is not indicative of a family who would kill because a family member entered into an inter-caste marriage. There is a lack of any evidence to support the applicant’s speculative concerns that her family, extended family or members of the community will harm her if she does not leave the family unit due to her inter-caste marriage.
The Tribunal has considered the applicant’s claims that her family have suffered at the hands of her former in-laws and the community due to her divorce and inter-caste marriage and does not accept them for the following reasons. She stated her brother was beaten and that every second day the police would come and arrest him and he had to sign certain documents. She claimed her family engaged in legal proceedings which were ultimately abandoned by her father and the High Commission in India called her and told her the results of the proceedings and that the Commission in Australia told her it is out of their control and recommended that she lodge a case against her former in-laws. She said her family had to changed homes [several] times and her parent’s neighbours threatened that they will not let her live. The Tribunal would expect that the applicant would have access to medical evidence to support her claim that her brother was beaten. If her brother was arrested by police every second day then the Tribunal would expect that the applicant would have access to paper work to support the arrest. Whilst he Tribunal notes that the delegate made mention of court documents pertaining to the court proceedings in regards to the dowry, the Tribunal does not think it unreasonable that the applicant would be able to obtain documentary evidence of the court proceedings relating to her brother and an explanation of why the High Commission in India took an interest in the case. Furthermore the applicant is in contact with her mother and the Tribunal does not think it unreasonable to expect that the applicant would seek assistance from her family to obtain evidence of their [several] moves in order to avoid neighbours and seek protection. The applicant has made serious claims to support her concerns for her own safety should she return to India. She has provided no evidence to support these claims in spite of the fact that these type of claims lend themselves to some form of official, third party documentary evidence. Whilst it is not for the Tribunal to make the applicant’s case for her, it did prompt the applicant as to whether she had any evidence and she claims she did not. The Tribunal has no evidence before it on which to accept that the applicant’s family have suffered any adverse effects of her divorce or inter-caste marriage as claimed here. Therefore the Tribunal does not accept that the applicant brothers was beaten and that every second day the police would come and arrest him and he had to sign certain documents. The Tribunal does not accept that the applicant’s family engaged in legal proceedings which were ultimately abandoned by her father. The Tribunal does not accept that the High Commission in India called her and told her the results of the proceedings and that the Commission in Australia told her it is out of their control and recommended that she lodge a case against her former in-laws. The Tribunal does not accept that her family had to changed homes [several] times and her parent’s neighbours threatened that they will not let her live.
The Tribunal has considered the applicant’s claim that she has been receiving counselling from [a welfare agency] for two years and found a job with their assistance but has experienced exaggerated depression and mental disturbances and is forgetful and has backlashes (sic). The applicant provided no detail about the impact this may have on her returning to India and has provided no medical evidence to support this claim. The Tribunal has considered the DFAT report and finds that the applicant would have access to medical treatment in India. The report details that “according to the World Health Organisation, India’s health indicators have improved over the last decade. Whilst total public and private health care expenditure in India in 2010 was only four per cent of GDP, compared with an average of 5.7 per cent of GDP in comparable lower middle income countries. Many people lack access to affordable public health care and out-of-pocket health expenses are high. Overall, the quality and affordability of health care varies across the states”. Whilst the applicant would find that health care is not of the same standard as in Australia, she would have access to it. She is educated and would be able to obtain employment and as such she could afford and have access to medical services.

The Tribunal has considered independent country research from DFAT and finds that the applicant would have access to state protection should she require it on her return to India and the police have broad powers of arrest.
The Tribunal has considered country information, the lack of any documentary evidence which would be reasonable to expect the applicant to obtain to support her claims and the amount of time that has passed since 2012 when the applicant separated from her former husband. The Tribunal is not satisfied that there is a real chance of the applicant facing serious or significant harm for any of the reasons claimed, or for any other reasons.
In summary, in relation to the refugee criterion, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criterion reason, for any of the reasons claimed, or for any other reasons.
In summary, in relation to the complementary protection criterion, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will suffer significant harm for the reasons claimed, or for any other reasons.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rachel Westaway
Member

[2017] AATA 1959

2 October 2017

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Immigration

Statutory Interpretation

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Judicial Review

Procedural Fairness

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