1502489 (Refugee)

[2016] AATA 3864

1502489 (Refugee) [2016] AATA 3864 (10 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502489

COUNTRY OF REFERENCE:                  India

MEMBER:Suhad Kamand

DATE:10 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 10 May 2016 at 11:48am

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant, a male national of India[1], first arrived in Australia as the holder of a [temporary] visa as the dependent of his spouse, [name]. He was granted a further [several temporary] visas as her dependent, the most recent being granted [in] October 2011, being in effect until [a date in] April 2013. He lodged a further [temporary] visa application as his spouse’s dependent on [that date in] April 2013, however that application was found to be invalid. He lodged an application for a Protection visa [in] May 2014.  The delegate refused to grant the visa [in] January 2015 and the applicant sought this Tribunal’s review of that decision. On the basis of all the evidence before it, and for the cumulative reasons given below, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

   [1] A certified copy of the applicant’s Indian passport is at folio 28, [File number]

2. Relevant law has been included at Appendix 1.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The applicant was born in [year] in Ahmedabad, Gujurat Province, India. He is a national of India and of no other country.

4. His express claims and those arising on the evidence are that he fears harm in India in connection with the following, including cumulatively: while in Australia with his wife, his wife gave birth to a baby (X) [in] March 2012; his wife informed him that X was the result of an extra-marital affair; the applicant informed his parents in India about this and “in due course their behaviour became very rude with me”[2]; the news of his wife’s infidelity spread in his community and his uncles and other relative’s in India viewed it as an insult to their honour that the applicant “could not control my wife and that I was not a man”[3] and have threatened to kill him if he returns to India; his parents in India are being persecuted by relatives and the community because of the applicant’s perceived shortcomings in not controlling his wife, and they are taunted and hit with stones and vegetables when they are in public. The applicant claims to fear being taunted, stoned and killed by relatives and the “community in general” if he returns to India. He does not think the authorities in India will or can protect him. Rather, he thinks they will “join in the persecution because in our culture this tradition is not acceptable”[4].

   [2] ibid, folio 19

   [3] Ibid, folio 18

   [4] Ibid

   Delegate’s decision

5. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention or under complementary protection. A copy of the delegate’s decision record was provided to the Tribunal by the applicant.

   Issues before the Tribunal

6. The Tribunal must generally assess whether: it is satisfied of the credibility and truth of relevant aspects of the applicant’s claims and evidence; on the evidence before it, it is satisfied that the applicant faces a well-founded fear, based on a real chance, of persecution involving serious harm for a Convention reason, if he returns to India. If the Tribunal is not satisfied that he is owed Australia’s protection under the Refugees Convention, it must then consider whether he is owed complementary protection. That involves an assessment of whether there are substantial grounds for believing that he faces a real risk of significant harm in India for any of the reasons claimed or arising on the evidence.

7. The Tribunal’s assessment is informed by a range of sources including: the Department’s file relating to the applicant which includes his Protection visa application form and documents provided in support, including an audio recording of his Department interview held [in] January 2015, conducted through a Gujurati interpreter, which the Tribunal has listened to. The Tribunal’s assessment is also informed by its detailed exploration of the applicant’s claims when he appeared in person before it on 4 May 2016. During that appearance he communicated with the assistance of an interpreter in the Gujurati and English languages. When asked at the commencement of his Tribunal appearance whether he has any concerns about his capacity to communicate his claims and evidence to the Tribunal, he responded in the negative but added that he feels a little tense The Tribunal has had regard to the above as well as to other material available to it from a range of sources, referred to, where relevant, in its considerations below.

   Assessment of the applicant’s claimed circumstances – credibility

8. Having had the opportunity to discuss: the applicant’s claims and evidence with him during his Tribunal appearance; and reflect on that evidence in the context of all the evidence before it, the Tribunal has significant concerns regarding the truth of central aspects of the applicant’s claims and evidence. While the concerns detailed below are not singularly determinative of the credibility of the applicant’s claims overall, cumulatively, they cast such doubt on his reliability as a truthful witness that the Tribunal cannot be and is not satisfied: that central aspects of the applicant’s circumstances are as he has claimed; and/or that the applicant is a person in respect of whom Australia has protection obligations.

9. The applicant is a national of India and of no other country[5]. There is no evidence before the Tribunal that he is a national of any other country.

   [5] The applicant’s Indian  passport was sighted by the Tribunal during his appearance before it

10. Early in the applicant’s appearance before the Tribunal the applicant was asked if he has had any difficulty understanding the interpreter. He identified no difficulties.  The Tribunal also asked him about the preparation of his Protection visa application form. He told the Tribunal that he was assisted in completing the form by a friend and that he is confident its contents are correct as he sat with the friend as the friend went through the questions and typed the applicant’s responses into the form.

11. The Tribunal asked the applicant about when he first came to Australia. In responding it was apparent that the applicant was looking at notes. When the Tribunal asked to see his notes he handed up a short list of handwritten notes identifying dates for specific events. He explained that the dates listed include the date of his marriage, the birth date of his wife, the birth date of her child (X) who he initially thought was his own and later discovered was not. There was one date in his notes reading “2012, DNA”. The Tribunal asked the applicant what that date referred to. He responded that this was when he obtained a DNA test for his X and found out that he was not the biological father. He said that he has the DNA report but it is at home and he did not bring it with him or submit it because he was never asked for it and did not know he needed to submit it. He told the Tribunal that he can submit it as soon as he gets home. The Tribunal allowed him until 5pm the following day to submit any such document but explained to him that even if the document verifies that he is not X’s biological father, this is not determinative of his claims for Australia’s protection. By email dated 5 May 2016 the applicant submitted to the Tribunal a DNA report together with an email providing further explanation, detailed and considered further below.

12. The applicant told the Tribunal during his appearance that X was born [in] March 2012. He said that when X was born he felt that he was not his child; two months after X was born he arranged a DNA test and one week later he found out that he was not the father; around ten days after finding this out he and his wife separated. When asked how their separation took effect he said that his wife moved out of their home and into her [sibling’s] home in Sydney. He said that this was in around July 2012. When asked if he and his wife ever lived together again as husband and wife he said they did not. When asked if they ever lived together again in any capacity he said they did not. When asked if he ever looked after X again after July 2012, when X was around two or three months old, he said he did not. He said that he visited his wife on one or two occasions after she moved out but that he is no longer in contact with her. He said that he saw her by chance at the gathering of a friend who is part of the Indian/Australian community in Sydney around one and half months ago and his wife admitted to him that she made a mistake and feels guilty for cheating on him and having a child with another man. When asked who the real father of X is and what he knows about him he said that he does not know anything about him.

13. However, much of the applicant’s evidence detailed in the paragraph above did not accord with the email and DNA report he provided to the Tribunal by email on the following day. The DNA report was from [Provider 1], was addressed to the applicant’s wife, was dated [in] April 2013 and referred to DNA samples submitted [in] March 2013. Contrary to the applicant’s claim that he himself arranged for DNA testing some two months after X was born, the [Provider 1] letter indicates that X together with the applicant’s wife and another man named [Mr A], whose date of birth is specified in the document, were DNA tested when X was around one year old, and the applicant’s wife and [Mr A] were found to be the biological parents of X. That the applicant was in possession of this DNA report which clearly identifies the name and date of birth of the biological father of X does not support his oral evidence to the Tribunal that he does not know anything about the father of the child.

14. The applicant’s email to the Tribunal on 5 May 2016, attaching the [Provider 1] report, states:

    “Please find the attachment of DNA test Results .

    As per you know me and my wife clear the MRT case on September 2013 she is with me but she didn't told me the baby is not mine ... she already did DNA in April but she didn't told me. but in month of October I found the results of DNA in our papers then again she cheat me as although time. after I got the paper she did fight with me and left me because she don't want to stay with me. and I don't know she didn't include my name in her [temporary] visa .. I thought I also had a dependent [temporary] visa but I was wrong .. As you know there was so many confusion between 2012 and 2013 because I had so many stressed in my life and pressured I don't understand what to do.. I know you have my all records with you. Whatever proofs I have I submitting to you . I hope so you will understand my situation and helping me to took out of all this stressed . 

    If you have any quarries please let me know I try to clear .  

    please contact me without any hesitation by email  or phone ( sic)”

15. The above comments relate in part to concerns put to the applicant during his Tribunal appearance, pursuant to section 424AA of the Act, regarding evidence he and his wife are recorded as giving the Migration Review Tribunal (MRT), differently constituted, in September 2013, in respect of the cancelation of the applicant’s [temporary] visa. That information is considered further below. However, at this point the Tribunal notes that the contents of the applicant’s email above do not match his oral evidence to the Tribunal regarding how and when he came to know that X was not his child, that oral evidence being that, sensing that X was not his child, he himself arranged for the child to be DNA tested when the child was around two months old; he received the results around a week later and confronted his wife, and they separated within the next ten days, in around July 2012, and never cohabited in any capacity again after this. He also told the tribunal that he never looked after X again after July 2012. That account differs so significantly from that set out in the applicant’s 5 May 2016 email which is to the effect that the applicant’s wife obtained DNA testing in March/April 2013, when X was over one year old, withheld the results from the applicant and that applicant “found” the results in October 2013, the month after his appearance before the MRT in September 2013 in which he and his wife gave oral evidence that they were living as spouses, that X was their child, and the applicant was caring for X. While noting the applicant’s evidence regarding his stress at the time of finding out that X was not his, and his anxiety about participating in the Tribunal hearing/application process, the Tribunal does not consider those factors, even cumulatively, to overcome the concerns arising from the discrepancies detailed above. Those discrepancies go to the central aspects of the applicant’s claims and raise significant doubts regarding the truth and reliability of the applicant’s claims and evidence.

16. During his appearance before it the Tribunal asked the applicant if X has a birth certificate and whether he knows where it is and who is identified on that document as X’s parents. Initially he said he doesn’t know who is named as X’s parents, but later said that when X was born he was named as the father on the birth certificate.

17. The Tribunal asked the applicant why he came to Australia in 2008. His responses were to the effect that his wife wanted [a temporary visa] and he wanted to “set” his life here. He explained that he intended, at that time, that he would live permanently in Australia and hoped that when he obtained Australian citizenship he would bring his parents to live here also. When asked why, in 2008, he wanted to remain permanently in Australia, he said that he wanted to live a good life. This evidence suggests that the applicant has had, since at least 2008, a desire to remain permanently in Australia.  The applicant is also recorded in the delegate’s decision record as saying that he applied for the Protection visa because his wife became unwilling to include him in her [temporary] visa application and he was left in a situation of having no valid visa to remain in Australia and the Protection visa application was a last resort for him to remain here and his wife did not want to live with him anymore. This evidence was also reflected in his oral evidence to the Tribunal, which was also to the effect that he only sought Australia’s protection after he had no further options once his wife refused to include him as a dependent in her [temporary] visa applications.

18. The Tribunal put to the applicant that, his evidence reveals that he and his wife have been separated since July 2012, which is over three years, with no suggestion that there is any chance of reconciling. The Tribunal asked whether, in this context, he has looked into getting a divorce. His responses were varied, including that: he hasn’t thought about it; he spoke to his mother and father about this but they “don’t want to solve the problem”. When asked what he means by this he offered: his mother and father told him to not come back to India and beyond that they have no concerns for him. When reminded that the Tribunal’s questions was about why he has not looked into getting a divorce from his wife in over three years of separation he repeated that he has not thought about it. He said that he loved his wife and felt so broken by what has happened that he could not even drink water. However, this is difficult to accept with the evidence detailed below indicating that he managed to lodge a further [temporary] visa application, seek review of the cancelation of his [temporary] visa in September 2013, and seek Australia’s Protection since he and his wife separated in July 2012.

19. When asked how he has been spending his time in Australia since arriving in 2008, some 8 years ago, the applicant’s evidence impressed the Tribunal as being vague and not forthcoming. He focused his responses on what he is not doing, repeating a number of times that he does not have permission to work so he is not working. When pressed on what he is doing and how he spends his days his initial response was that he does “nothing”. When asked to detail how he spent the previous day he said that he “goes with friends”. He then said that yesterday he went for a walk, watched TV, saw his friends when they returned back home then went to sleep. While not directly relevant to the applicant’s claims for Australia’s protection, this evidence compounds the Tribunal’s concerns as to whether the applicant has been and is being truthful and forthcoming in his evidence generally.

20. The applicant then offered the Tribunal that he is living with a friend and is paying a reduced rental of $100 a week because he cannot work. When asked how he can afford to pay $100 per week without working he said that his mother and father send him money from India and have been doing so whenever he needs money. When asked why they are doing this given his claims that they have been rude to him as a result of his wife having a child with another man he said that his parents support him because they don’t want him to return to India so they help him financially to stay here whenever he needs money. The Tribunal considers the applicant’s regular receipt of financial support from his parents in India to reflect their ongoing support towards him generally and to reflect that he continues to have close family ties in India. The Tribunal does not consider their financial support to suggest in any way that he faces any risks of harm in India for any reason.

21. Regarding his family in India he said that he is in regular contact with his parents and spoke to his mother around a month ago. His father works as the owner of a small [business] and his mother is a housewife. He has [details of siblings, who are] living with his parents. His parents continue to live in the same home they lived in when the applicant lived in India before coming to Australia in 2008. Their home is known to the applicant’s in-laws, including the parents of the applicant’s wife who the applicant claims have made threats to harm the applicant and his family in India.

22. The Tribunal asked the applicant whether any member of his family in India has been harmed in any way in connection with his wife having a child from an extra-marital relationship. He responded that his parents have been harassed a lot by society and by people who tell them bad things about the applicant. When asked to detail what he means and to give examples he said that people say that he was a coward, did not support his wife and is not a man. When asked if they have experienced any other harm he said that a distant uncle of the applicant’s as well as the applicant’s grandfather have said that the applicant shouldn’t return to India and they don’t need him in the family.

23. He said that his parents’ home is around a [distance] drive from the home of his wife’s parents. When asked if his parents have any contact with his wife’s family he said that they had a big quarrel in around July 2012, when the applicant first told his parents that he is not the biological father of X. He said that at that time his father quarreled with his wife’s father and the two families have had no contact since then. He said that his wife’s family blame him for his wife leaving him and having a child with another man, saying that he did not support her and was not a man and that is why she did what she did. He said that her family have said that if he or his wife return to India they will kill them.

1. The Tribunal asked the applicant about whether he has personally received any direct threats from anyone. He responded that he was directly threatened by his wife’s mother, father and uncle in India who told him to not return to their society or he will spoil the name of their family. He said the threat was delivered to him by phone. When asked to detail what they said to him he responded that they said many things, but mainly they said that he has spoilt their daughter’s life and “don’t come”. They said he did not look after his wife. When asked if they said anything else he added that they said he and his wife should both not come back to India or “we will kill both of you”.  When asked when he last spoke to anyone from his wife’s family he said it was around July 2012. He said that he has not been in contact with anyone from his wife’s family since then, confirming that it has been over three years since he has heard from or about them. He also said that his family have had no interaction with anyone from his wife’s family for around the same period of time and that since July 2012 he has “heard nothing from them”.

2. As explained to the applicant, the Tribunal must assess the applicant’s risks of harm in India now and in the reasonably foreseeable future, and consider whether he faces a real chance of harm rising to the level of serious or significant harm, as contemplated in the relevant law, should he return to India. The Tribunal explained to the applicant that, given that neither he or his parents have heard anything from his wife’s family in India for over three years, it appears highly speculative that he faces any risk of serious or significant harm from them now or in the reasonably foreseeable future. The Tribunal also explained that, given his earlier evidence that his parent’s home is known to wife’s family, and only a thirty minute drive from their home, it appears to the Tribunal that if they had any ongoing desire to threaten or harm the applicant or his family they could easily have done so by now, yet they have not made any contact with them or the applicant in over three years. In response the applicant varied his earlier evidence that his parents have not heard from his wife’s family for over three years, offering instead that they continue to harass them, and that they do so at times including when they see them at the temple. However, this evidence impresses the Tribunal as being introduced by the applicant to address a concern put to the applicant by the Tribunal. It is not consistent with his earlier evidence and the Tribunal does not accept it as true. The Tribunal does not consider the applicant’s evidence regarding his and his family’s recent contact with his wife’s family in India to support his claim that he faces a real chance of any harm from his in-laws or anyone else in the reasonably foreseeable future, including harm rising to the level of serious or significant harm.

3. The Tribunal also explored with the applicant whether he fears harm from and/or has been directly threatened by anyone else in India. In response he offered that he fears Indian society generally, as well as members of his own family. He said that Indian society does not accept extra-marital affairs and he will be physically harmed and mocked by Indian society for letting his wife cheat him like this. However, while claiming to fear Indian society generally, the applicant’s earlier evidence was that he saw his wife by chance around a month and a half ago while at the birthday party of an Indian/Australian friend. His evidence was that some, but not all, of the Indian/Australian attendees at that party know that his wife had a child to another man. That the applicant continues to immerse himself amongst the Indian community in Australia does not support his claims that he fears being abused, harmed and mocked by the Indian community in India should he return there.

4. Regarding threats of harm from his own family, he told the Tribunal that a distant uncle of his father has threatened the applicant. When asked to detail the nature of the threat he said that the uncle said “I won’t kill you but I will break your arms and legs as you have not looked after your wife”. He repeated that the threat was to break his arms and legs, and not to kill him. He said that this threat was communicated to the applicant two or three times, with the uncle continuing to as the applicant’s parents if he has returned to India or not. He said that other than this uncle, no one else in his family has threatened to kill him. However, as explained to the applicant, the above differs from the claims set out in his Protection visa application form which are that “my uncles and other relatives took it a big insult on their honour and told my father that I should not return back to India. They also threatened that they will kill me if I return back to India” and “my relatives have threatened me that I will be killed if I return back to India”.[6]

   [6] Ibid, folio 18

5. The Tribunal put to the applicant it’s concern that, according to his evidence, the threats to harm him in India were communicated to him in mid-2012, yet he delayed in seeking a Protection visa until mid-2014. The Tribunal put to the applicant that, while this is not determinative of the genuineness of his claims to fear harm in India, it does raise questions as to why he delayed so long if he was truly fearful for his life in India. In response the applicant told the Tribunal that: it was a difficult time in his life; he was not aware he could apply for a Protection visa until mid-2014. When asked whether he made any enquires with the department or migration agents as to what options he had for seeking Australia’s protection in or around 2012, he said that when his wife refused to include him on his [temporary] visa his friend mentioned the Protection visa. He repeated that he was so stressed when his wife cheated him that he could not even drink water.

6. At this point the Tribunal put to the applicant under section 424AA of the Act that it has before it a copy of a decision by the MRT, differently constituted, dated 26 September 2013, which records the following information in respect of his application for review of a decision by the Department to cancel, [in] November 2012, the applicant’s [temporary] visa.

   ·The delegate’s decision to cancel the applicant’s [temporary] visa was made on the basis that the applicant was no longer a spouse or member of the family unit of his wife, [name].

   ·The applicant appeared before the Tribunal on 26 September 2013 together with his wife and X;

   ·Both the applicant and his wife gave oral evidence to the Tribunal on that occasion;

   ·At the Tribunal hearing held on 26 September 2013:

   i.the applicant’s wife is recorded as saying that while she was pregnant and following the birth of X she had a very difficult time and her mother was only able to visit her for 2 months; she believes that her mood and state of mind were affected and, although she and the applicant had arguments, they did not stop living together at any time; she and the applicant attempted to telephone the Department to advise of their reconciliation but the applicant’s visa had been cancelled by that time.

   ii.the applicant is recorded as saying that he is currently caring for their baby full time. His wife confirmed his evidence.

   iii.The applicant and his wife provided the MRT with several photographs of them with X; a Medibank letter which included the applicant, his wife and X; bank records; a birth certificate for X and a certificate of their marriage in India in August 2006.

7. Pursuant to section 424AA of the Act the Tribunal explained to the applicant that the above information is relevant to the review because it indicates that, in September 2013, around 15 months after the applicant told the Tribunal that he obtained DNA test results confirming the X was not his child and after he stopped living with his wife and X,  both he and his wife were representing to the MRT that they are still living together as husband and wife, that X is their child and that the applicant is continuing to care for X. The Tribunal explained that this information appears inconsistent with his oral evidence to the Tribunal, given in respect of his protection visa application, that by July 2012, when X was aged around 3 months, he and his wife separated, never again cohabited, and he never again looked after X. The Tribunal explained that if it relies on the above information it might find that he has not been truthful in his evidence to the MRT in 2013, and/or in his evidence in support of his Protection visa application. The Tribunal informed the applicant that it has not made up it’s mind about this evidence and that it is put to him as he may have an explanation to offer. He was information the he has a right to request additional time to comment and respond or that he may do so immediately.

8. Opting to respond immediately the applicant said that he was not aware of the DNA results when he appeared before the MRT in September 2016. He thought the baby was his at that time and what he told the MRT about him and his wife still living together was true when he appeared before the MRT. The Tribunal asked how it could be true if what he told the Tribunal today, about knowing X was not his and separating from his wife by July 2012 is also true?  The applicant responded only that he did not know, in September 2013, that X was not his; a long time has passed and it is difficult to recollect everything; his brain has been affected by stress; even though he was successful at the MRT in September 2013, after that his wife refused to include him in her [temporary] visa application. While the Tribunal has considered the applicant’s evidence that a long time has passed since the events surrounding the birth of X and the applicant’s separation from his wife, as put to the applicant, the Tribunal considers it relevant that, on his account to the Tribunal X would have been aged only  3months when the applicant found out he wasn’t his and stopped living with him, and on the account offered in response to the section 424AA information put to him, X would have been aged around 18 months when the applicant found out and stopped living with his wife and X. The Tribunal does not accept that such a significant discrepancy is explained by the passage of time or the applicant’s stress. The Tribunal considers the discrepancies to be significant and: to raise concerns about the applicant’s reliability as a truthful witness; to raise concerns that he has given differing accounts regarding the same claimed events, raising concerns as to the truth of those event; and to suggest that he gave evidence to the MRT which he thought would secure a [temporary] visa outcome, regardless of the truth of that evidence. These concerns cumulatively raise concerns regarding the truth of his claims and evidence to face or fear a real chance of serious or significant harm in India for any of the reasons claimed or arising on the evidence. 

9. These concerns are compounded further by the email and DNA report sent to the Tribunal by the applicant on 5 May 2016. That evidence is detailed in paragraphs 14 to 16 above. The Tribunal repeats its concerns that the applicant’s email to the Tribunal dated 5 May 2016 does not match his oral evidence to the Tribunal regarding how and when he came to know that X is not his child, how and when he separated from his wife, and when he stopped looking after X. That account differs so significantly from that set out in the applicant’s 5 May 2016 email which is to the effect that the applicant’s wife obtained DNA testing in March/April 2013, when X was over one year old, withheld the results from the applicant and that applicant “found” the results in October 2013, the month after his appearance before the MRT in September 2013 in which he and his wife gave oral evidence that they were living as spouses, that X was their child, and the applicant was caring for X. While noting the applicant’s evidence regarding his stress at the time of finding out that X was not his, the passage of time and his anxiety about participating in the Tribunal hearing/application process, the Tribunal does not consider those factors, even cumulatively, to overcome the concerns arising from the discrepancies detailed above. Those discrepancies go to the central aspects of the applicant’s claims and raise significant doubts regarding the truth and reliability of the applicant’s claims and evidence.

10. The Tribunal has also considered the reports submitted by the applicant to the Tribunal on the day of his hearing, detailing instances of honour killings in India[7]. Those reports detail a range of honour killings in India in which people, predominantly women, have been killed by relatives for bringing dishonour to their families. None of the reports provided detail men in India being killed or harmed in any way as a result of their wives cheating on them or having a child with another man. No such reports could be located by the Tribunal.

    [7] Folios 69-74.

11. Based on all the evidence before it the Tribunal finds that it cannot rely on the applicant as a witness of truth. While mindful of the independent DNA report identifying a woman bearing the name and date of birth of the applicant’s wife as the mother of X, and naming the father of X as a third party named [Mr A], the Tribunal cannot be satisfied that the implications of that report or it’s revelations in respect of the relationship between the applicant and his wife, X, his in-laws and his family in India are as he has claimed. Nor can the Tribunal be satisfied on the evidence advanced that the applicant has been threatened with harm or death by anyone in India, including any members of his wife’s family, his family, or the Indian community more generally. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of any harm in India in connection with his relationship with his wife and/or X, or for any other reason, including harm rising to the level or serious or significant harm, as contemplated by the relevant law, in India in the reasonably foreseeable future.

    Conclusions

12. 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).

13. 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).

14. 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

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

    Suhad Kamand
    Member

    
    

    RELEVANT LAW

16. 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

17. 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).

18. 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.

19. 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.

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

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

1. 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

2. 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’).

3. ‘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.

4. 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

5. 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.