1503868 (Refugee)

[2016] AATA 3237

1503868 (Refugee) [2016] AATA 3237 (2 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503868

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:2 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 02 February 2016 at 4:04pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of India, applied for the visas [in] June 2014 and the delegate refused to grant the visas [in] March 2015.

3. The applicants appeared before the Tribunal on 30 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [their witness].

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujurati and English languages, and in the case of the witness, the Hindi and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the decision, the first named applicant, will be known as ‘the applicant’, whereas the second named applicant  will be known as the ‘second named applicant’.

   RELEVANT LAW

7. 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

8. 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).

9. 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.

10. 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.

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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

    Relocation

18. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

19. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Complementary protection criterion

20. 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’).

21. ‘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.

22. 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.

    Relocation

23. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that 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. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Protection from an authority

24. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Section 499 Ministerial Direction

25. 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

26. 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 spouses.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The Tribunal had before it material including:

    ·     Application for Protection visa including a written statement from the applicants;

    ·     Copies of the marriage certificate of the applicant’s first marriage, and a death certificate recording the date of the death of applicant’s father [in] June 2009;

    ·     Copies of both applicants’ passports and the passport of their [child];

    ·     Medical documentation dated [in] April 2008 of a consultation in India concerning an [injury] and related minor [functioning impairment];

    ·     Letter dated [in] May 2014 from [a doctor] in [Gujarat], stating that the applicant’s [child] is medically fit;

    ·     Copy of the original, and a translation, of an advertisement from the second applicant’s [Relative A] stating that she does not remain under his guardianship, and she married according to her own will. If further states that people should not enter into financial transactions, nor help her in any, or they would carry any liability themselves[1];

    ·     Referral from the applicant’s General Practitioner to a clinical psychologist in relation to the applicant’s mental health dated [in] September 2014;

    ·     Psychologist report from the psychologist dated [in] October 2014 and [in] January 2015;

    ·     A statement in Gujarati from the [Gram] Panchayat stating that the applicants’ [child] is under the care of the applicant’s [Relative B].

    [1] AAT, ff. 21-22

28. The applicants’ claims and evidence to the Tribunal can be summarised as follows. The applicant, [age] years old, and his spouse, the second applicant, [age] years old, are from the same village in Gujarat, India. They married in a ‘love marriage’ in [2008] against the wishes of their families. The applicant’s mother wants dowry from the second named applicant’s family and will not have any relation with the applicant until a dowry is forthcoming. The second named applicant’s family oppose the marriage because the applicant was divorced, and because they are from a wealthy family of ‘business’ whereas the applicant’s family are from the labouring class.  When the second named applicant’s family became aware of the couple’s relationship, her family members beat and harassed the applicant.  They also beat the second named applicant and did not allow her to attend school. After their marriage, the second named applicant’s family publicly dis-inherited her. After coming to Australia in 2009, the couple had a [child], now [age] years old. In 2011, they took their [child] to Gujarat to be cared for by the applicant’s [Relative B] and where they could obtain affordable health care for [him/her]. In 2012 when they returned to visit their [child], the second named applicant’s family threatened them. The family have subsequently discovered that the applicants’ [child] is in Gujarat and they have threatened that [he/she] will be kidnapped and harmed. The applicants fear physical harm to themselves and their [child] from the second applicant’s family because they have married without their consent. The applicants are not able to get protection from the police.

29. The applicant was first married in [2007]. This relationship lasted only a few months because his parents insisted on a substantial dowry and threatened to burn his wife if they did not receive it. His wife left him fearing for her safety.

30. The applicants’ relationship commenced in 2008 when the applicant’s parents were [overseas].  They are from the same street in a village of [number] people and the second named applicant’s parents [and extended family] live in a joint family home [a short distance] from the applicant’s mother.  

31. When the second applicant, advised her family of her relationship with the applicant and that she wanted to marry him, they disagreed and beat her severely (she still has scars) and prevented her from attending school. In April 2008, [a number] of the second applicant’s uncles brutally beat the applicant in response to knowledge of the applicants’ affair. The applicant’s [body part] was injured and [its functioning] was affected in the beating (the Medical Certificate dated [in] April 2008 refers).

32. The applicant went to the police station to lodge a complaint about the beating, but the second named applicant’s family had already gone to the police station complaining about the applicant’s conduct in relation to the second named applicant. The police would not make a First Incident Report (FIR) in relation to his case. The police stated that if the second named applicant was to complain to them, they would break the applicant’s his legs.

33. The second applicant’s family members continued to harass and intimidate him, e.g. by parking their bikes in front of his house.

34. People in the village also confronted the applicant, including the village Sarpanch who warned the applicant to stay away from the second applicant. The Sarpanch was connected to the second named applicant’s family because the second named applicant’s [relative] was a member of the village Panchayat.

35. The applicants eloped and married in another village with two friends present. When the applicant’s parents, who were [overseas] through this period, were advised of the marriage, they said that the applicant was no longer part of family and for them he was dead. The second applicant’s family contacted the applicant’s family who gave them licence to do whatever they wanted to do to the applicant.

36. The applicant’s father died in the middle of 2008, but his mother, who now lives alone, has refused to re-establish relations with her [child]. She has stated that she wants [an amount of money] from his wife’s family and this will not be provided. The applicant does not know about the current relationship between his mother and the second applicant’s family. He currently does not have contact with his mother. He has hoped that she might eventually accept them as a couple but she believes that she should follow her late husband’s views. The applicant hoped he could return for the wedding of his [sibling] in [2013] but his mother did not agree. While the applicants do not fear harm from her, they can expect no support from her.

1. The second applicant’s family were deeply opposed to her marriage to the applicant because he was a divorcee and also because he was not of high enough class (labour class) whereas they are wealthy business people, owning [businesses], and they trade and distribute [various] produce. They think the applicant has married the second applicant for her money.  As the families live in the same street, the second named applicant’s family think that people will be pointing to them and that the applicants’ relationship is shameful to them.

2. After the couple married, the second applicant’s [Relative A] placed an advertisement in the newspaper, identifying her with a photo and stating that the family no longer have any relationship with the second named applicant, that she was no longer under their guardianship, and married according to her own will. It states that people should not have financial transactions with her or help her. This indicates that the second named applicant has been cut off from inheritance of property.

3. The main purpose of this advertisement (a copy of which was provided to the Tribunal), was for the second named applicant’s family to obtain information about the whereabouts of the second applicant.  The paper has a circulation throughout Gujarat. The second named applicant’s family also burnt all her personal documents, such as her education and [professional] qualifications. She has been able to obtain some duplicate copies.

4. After their marriage, the applicants moved around, going to an number of other cities such as [two named cities], staying in motels with the financial support of his [Relative B]. They stayed with a close friend for a month.

5. The applicant had completed IELTS in 2007 and he obtained a loan to obtain a Student visa. The applicants came to Australia in 2009, the second applicant as the applicant’s dependent. In Australia, the applicant completed an [English] course and commenced [a] course, but he was not able to continue because the second applicant became pregnant, and with no support from India, he ran into financial difficulty. For this reason he started working in [a town]. When their visas were about to expire, the applicant sought the assistance of a lawyer and paid $[amount] for what turned out to be fraudulent advice that he would obtain a temporary visa and then permanent visa in 6 years, if he continued to make regular payments to the lawyer.  Eventually, at the end of 2012, they became unlawful. 

6. The applicants’ [child], now [age] years old, was born in Australia in [year]. In 2011, their [child] suffered some ill health ([he/she] is still quite small and weak) and because medical care was very expensive in Australia, the applicant asked his [Relative B], who lives [a specified distance] from his village, to look after his [child]. He took their [child] to India and has provided the Tribunal with a letter (in Gujarati) from the Gram Panchayat (local village committee) confirming that their [child] lives with [Relative B]. They are in frequent contact with [Relative B] and [family] to talk with their [child].

7. In 2012, the applicant’s [Relative B] advised that their [child] was not well and the applicants travelled to [Relative B’s] village to visit their [child] and celebrate [his/her] birthday. The second named applicant heard that her family had got information that they were in Gujarat. She heard that many family members were coming to the applicant’s [Relative B] house in three cars. Fearing harm because of previous threats from the family, they left this house before they arrived.

8. The applicants’ [child] now goes to school about [number] kilometres from [Relative B’s] home. The second applicant’s [Relative A] lives in a nearby village and his [child] attends the same school. [Relative A] has discovered that the applicant’s [child] is there and on two occasions, he has threatened his [Relative B], saying that she cannot know when the applicant’s [child] will disappear, and suggesting that the applicant’s [child] will be kidnapped, held ransom and killed. The applicants described reported incidents when police have been informed of a kidnap, and the perpetrators have killed the child. They fear that now their relatives know their [child] is there that they will kidnap [and] harm [him/her].

9. The applicants did not apply for a Protection visa earlier, because the applicant hoped that his mother and the second named applicant’s family would accept them and allow them to live peacefully. In 2014, the applicant decided they must apply, especially because nothing had changed and they have been separated from their [child] for so long. His [Relative B] and [family] also experience pressure caring for the applicant’s [child]. The applicant is aware that he would be losing a lot in not being able to return of live in India. He looks at the festivals and cultural life, and that life is very easy there, but he has no option but to stay in Australia because he must care for his family.

10. The applicants are fearful for their own and their [child]’s life because of the threats of the second named applicant’s [Relative A]. They fear that even if the families stated that they accepted them, there would be no guarantee that they will not kill them in the future.  The applicant’s fear that there are reports of families carrying out ‘honour’ killings even years later.

11. As well as Gujarati, the applicants speak, read and write English and Hindi. The applicant undertook [number] years of college education at [a] University in Gujarat in [year].

12. The applicant has been attending a psychologist over the past year to assist him with anxiety and depression. A report and letter from his clinical psychologist dated [in] October 2014, stated that he presented with high anxiety and features suggestive of depression. The psychologist states that the applicant reports that his wife’s family are posing a threat to his and his [child]’s life, that he has not seen his child for two years which makes him upset and very sad. The psychologist states that the applicant’s attention and concatenation is affected due to his mental status. He feels anxious and nervous most of the time and he is provisionally diagnosed with an adjustment disorder, with level of depression (extremely severe), anxiety (extremely severe) and stress (extremely severe). The psychologist reports treating the applicant with counselling (cognitive behaviour therapy).[2]

    [2] AAT, f. 69, 74 - 79

13. In another report dated [in] January 2015, his treating clinical psychologist states that the applicant continues to present with extreme anxiety and depression, and is distressed and overwhelmed about the outcome of his application for review. The report states that the applicant finds it difficult to cope with uncertainty and suggests that an early decision about his case would be beneficial to his mental health and an increase in medication[3].

    Evidence of witness

    [3] AAT, f. 45

14. The applicant introduced his witness as a close friend since they became neighbours when the applicants had arrived in [the town] in 2009. The applicant stated that the witness’s circumstances, although he is Punjabi, are similar to his and he was granted a Protection visa. When the applicant became illegal, his friend advised him about the Protection visa.

15. In oral evidence to the Tribunal, the witness confirmed the nature of his relationship to the applicants and that they spend a lot of time together. His testimony supported the applicants’ account of events, that they entered a love marriage, and that this created problems for him at home. He confirmed that the applicant would like to live with his mother but he has not been able to settle the problems. He confirmed that the families of the applicants live very close by to each other, that the second named applicant’s family are against the applicant and tried to beat him; that neither the police nor the Panchayat would help the applicant. The witness supported the applicant’s account of events in relation to their [child], stating [he/she] was living with the applicant’s [Relative B]. The witness also supported the applicant’s statements about his mental health and the stress and sadness he was feeling, especially in relation to his [child].

16. The witness presented as sincere and genuine and concerned about the stress experienced by the applicants and the difficulty for all of being separated from their [child]. His testimony supported the applicants’ account of events.

    Independent country information

    Marriage practices and honour killings

17. In 2015, the Department of Foreign Affairs and Trade (DFAT) stated in the India Country Report stated that arranged marriages continue to account for the overwhelming majority of marriages across India[4]. DFAT advised that “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 a duty, and may not accept modern marriage practice such as a son or daughter choosing their own spouse. Although the divorce rate has increased in recent years, particularly among affluent middle classes, India has one of the lowest divorce rates in the world at an estimated one in 1,000 marriages.[5]

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

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

18. In 2015, DFAT stated that, “In rural India, village councils have played a role in upholding conservative community views about marriage and relationships….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.”[6]

    [6] DFAT Country Information Report, India, 15 July 2015, p. 13

19. In April 2015, the United Kingdom (UK) Home Office reported that, “Customary practices such as forced and child marriage, violence and killings linked to dowry payments and sex-selective abortion, honour killings, witch-hunting of women, and communal violence perpetrated against cultural and religious minorities continue to be practiced despite laws prohibiting them.”[7]

    [7] UK Home Office, "Country Information and Guidance: India: Women fearing gender-based harm/violence, April 2015, p. 6.

20. The UK Home Office also noted that the UN Special Rapporteur noted in her report of 1 April 2014, stated that, “’Honour crimes’ are usually perpetrated by family members, often with the complicity of community leaders. Reasons range from a woman’s refusal to be forced into marriage and retaliation for marrying the man of her choice, to refusal to follow prescribed and expected dress codes. Women and girls suffer a wide range of physical and psychological abuse and the denial of basic freedom of movement and expression, and are sometimes killed in the name of ‘honour’”.[8]

    State protection

    [8] UK Home Office, "Country Information and Guidance: India: Women fearing gender-based harm/violence, April 2015, p. 27

21. In May 2011, India’s Supreme Court ruled that the perpetrators of honour killings should be given the death penalty[9]  and the Law Commission of India and Ministry of Justice have drafted The Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act, 2011, to outlaw honour killing.[10]

    [9] ‘Call in India for stronger stand against honour killings’ 2011, ABC News, 20 May < 01105/s3222944.htm> Accessed 2 June 2011 <Attachment>

    [10] Chowdhury, S 2011, ‘Arranged marriages in India encourages the culture of honor violence’, Women News Network, 26 October <Attachment>

22. In 2015, the UK Home office advised that, “Although there are over 1.5 million police personnel in India, the number of officers per capita of the population is relatively low. Each of the 29 states and seven ‘union territories’ in India has its own, separate police force. Police effectiveness and conduct therefore varies to an extent from state to state. Certain reports have characterised officers at police-station level as being overworked, demoralised and working in poor conditions with inadequate training and equipment, subject to corruption and political influence.”[11]

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

23. In 2011, the United States, Department of State (USDOS) stated that Indian law which could provide protection against religiously oriented violence such as ‘honour killings’ is not always effectively enforced by police. In 2010, USDOS reported that “due to a lack of sufficiently trained police and elements of corruption, the law was not always enforced rigorously or effectively in some cases pertaining to religiously oriented violence”.[12]

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

24. In 2015, the UK Home Office advised that, “In general, a person is likely to be able to access effective protection from the state.”[13], but indicated that  in view of the information above, assessment of whether effective protection is available in relation to the particular circumstances and profile of the person.  

    Relocation

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

25. According to its most recent 2011 census, India's population was approximately 1.21 billion[14] in some 27 million towns and settlement, and the largest 8 cities have between 4 and 12 million people in each.[15]

    [14] DFAT Country Information Report, India, 2015, p. 4.

    [15] - accessed 20 August 2015

26. In 2013, USDOS stated that Indian law provides for freedom of movement within the country, and the government generally respects this in practice. In late 2010, the government repealed the requirement for nationals to apply for special permits to travel to Manipur, Mizoram and Nagaland. Such permits, however, are still required to travel to Jammu and Kashmir.[16]

    [16] US Department of State 2013, Country Reports on Human Rights Practices for 2012 – India, 19 April, Section II  <Attachment> 

27. In 2015, the UK Home office stated that, “India is a vast country with a population of 1.2 billion. It comprises 36 states and ‘union territories’. There are seven cities which have populations of over 5 million and over 600,000 towns and villages. There are no legal restrictions preventing relocation to most parts of the country, including to all the major cities.”[17]

    [17] UK Home Office, "Country Information and Guidance: India: Background information, including actors of protection, and internal relocation", 6 February 2015, p 5

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

    [18] UK Home Office 2010, Country of Origin Information Report – India, 21 September, p.95 <Attachment>

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

    [19] UK Home Office, "Country Information and Guidance: India: Background information, including actors of protection, and internal relocation", 6 February 2015, p 5.

30. Hindi, one of the two official languages, the other being English, is the majority language in India spoken by 41 per cent[20]. Hindi is spoken by a majority in eight northern states[21] According to the Encyclopaedia Britannica Online, Hindi is spoken as a first language by approximately 425 million people across India, and as a second language by an additional 120 million[22]. Although only a relatively small number speak English as their first language, an estimated 125 million people speak English as either a first, second or third language.

    [20] DFAT Country Information Report, India, 2015, p. 4.

    [21] Univeristy of Illinois at Urbana-Champaign – Linguistics Department (n.d.), a Brief Profile of the Hindi Language

    [22] Encyclopaedia Britannica Online (n.d.), Hindi language

31. In 2013, it was reported that 4.5% of the Indian population speak Gujarati. [23]

    [23] Sandra Küng (6 June 2013). "Translation from Gujarati to English and from English to Gujarati - Translation Services". wwt-services.co.uk.

32. In 2015, the World Bank reported that the Indian economy grew 7.4 per cent in 2014 and is likely to grow at 6.4 per cent in 2015.[24] The Times of India reported on 23 June 2013 that overall Indian unemployment rate was 3 per cent.

    [24] - accessed 21 August 2015

33. In 2015, DFAT assessed that in general, there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence, and reported that there is a very high rate of internal mobility in India.[25]

    [25] DFAT Country Information Report, India, 2015, p. 21.

    Country of reference

34. The applicants submitted Indian passports. On the basis of these documents and the applicants’ oral evidence the Tribunal is satisfied that applicants are citizens of India. The Tribunal assesses the applicants’ claims against India as their country of nationality and receiving country.

    Assessment of claims

35. The issue in this case is whether the applicants faces a real chance of serious harm or a real risk of significant harm at the hands the second applicant’s family because they married against her family’s approval and has humiliated them now or in the foreseeable future.

36. The applicants presented in a consistent, genuine and spontaneous manner about their circumstances in India and Australia at the Tribunal hearing, and the Tribunal found them overall to be credible witnesses. In reaching this conclusion, the Tribunal also gave weight to the credible testimony of their witness. The Tribunal also noted the documentation, assessed as genuine, provided by the applicants in support of their claims. The applicants’ evidence is broadly consistent with the country information set out above, that indicates that severe friction in intra-family relations may occur where there is contravention of traditional marriage practices such as independent choice of marriage partner. Their evidence is also broadly consistent with country information which indicates that the north of India has a relatively high rate of punitive behaviour in such cases, including ‘honour killing’, often perpetrated by family members in response to perceived shame arising from contravention of traditional marriage practices.

37. For the reasons above, the Tribunal accepts the applicants’ claims that they are from the same village in rural Gujurat. The Tribunal accepts that the applicant’s first wife left him because his family threatened in relation to dowry and that they subsequently divorced. The Tribunal accepts that the applicants formed a relationship which does not have their family approval, because the applicant’s family wanted a large dowry, and because the second applicant’s family, who are wealthy business people, do not consider the applicant a suitable match for their daughter, and consider themselves shamed because of the relationship.

38. On the basis of the applicants’ evidence and country information cited above, the Tribunal accepts that when the second named applicant’s family learned of their relationship, members of her family beat the applicant as punishment and to deter the applicant from continuing with the relationship. The Tribunal accepts that the applicant sustained injury from this event such that he required some medical treatment. The Tribunal further accepts that, as a result of learning about her relationship with the applicant, the second named applicant’s family severely beat her and did not permit her to go to school.

1. On the basis of the applicants’ consistent evidence, the Tribunal accepts that the applicant sought to raise an FIR with the local police but that they did not do this, taking instead the part of the second applicant’s family. The Tribunal also accepts that the Sarpanch, head of the village Panchayat, was connected to the second named applicant’s family because the second named applicant’s [relative] was a member of the village Panchayat, accepting this as plausible given that the second named applicant’s family are successful business people in the area.

2. On the basis of the applicants’ consistent evidence, the Tribunal accepts that they eloped and entered a ‘love marriage’. Taking into account country information above, the Tribunal accepts that the applicant’s mother will not accept the couple and will have no relationship with them until she receives dowry.

3. The Tribunal accepts that the second named applicant’s family have dis-inherited her and advertised this action in a Gujarati newspaper because the second named applicant married according to her own will.  When exploring this matter at the hearing, the second named applicant stated that her [Relative A], rather than her father (who was travelling at the time), placed the advertisement in the paper because he had contacts at the paper, and the Tribunal accepts this. At the hearing, the applicants’ also stated that the advertisement which appeared in a newspaper which circulates across Gujarat was intended to get someone to locate them. The Tribunal has considered this claim but finds on the face of the evidence of the advertisement which does not request that anyone with knowledge of their whereabouts contact the family or provides contact details of the family, does not support this claim. The Tribunal does not accept that the advertisement was intended to locate the applicants. 

4. The Tribunal has considered the evidence that the applicants’ families remain hostile to them. The applicants were vague in relation to the threats against them from the second named applicant’s family in 2012. They did not know how the family heard that they were visiting the applicant’s [Relative B] and were vague about how they knew that that her family were coming to the house or about their intentions. The Tribunal also considered the nature of the applicants’ evidence about threats to their [child] made by the second named applicant’s [Relative A] to the applicant’s [Relative B] - i.e. that “she cannot know when the applicant’s [child] will disappear”. The Tribunal considers this to be a very vague threat. The Tribunal assessed that these threats could be interpreted as general in nature, rather than specific to their [child]. The Tribunal also notes that the family has now been aware of the applicants’ [child] presence [number] kilometres away from them for some time now, and there has been no incident.  However, based on the applicants’ overall credible evidence in relation to the past conduct of families against them , the Tribunal accepts that the second named applicant’s family threatened harm against the applicants when they returned in 2012, and more recently, has threatened harm against their [child] because they remain opposed and shamed about the applicants’ relationship.

5. At the hearing, the Tribunal enquired why the applicants had waited so long after their arrival in Australia, before making claims for protection. The applicant explained that he when he sought advice about long term stay in Australia he received what turned out to be fraudulent advice and remained unlawfully in Australia. He delayed many years before making an application for protection because he hoped that eventually his mother and his wife’s family would accept him and that they could live peacefully in India. The Tribunal accepted these facts and the explanation, noting that the applicant appeared genuinely distressed about his estrangement from his mother and his wife’s family’s lack of acceptance of him.

6. Considering the totality of the applicants’ claims, and considering independent country information outlined above concerning the situation of young people who marry in contravention to marriage norms in northern India, the Tribunal accept that the applicants are at risk of harm from the second named applicant’s family.

7. Based on the overall credible evidence of the applicants, the Tribunal accepts that the second named applicant’s family have threatened to harm and possibly kill the applicants, and the Tribunal finds this amounts to serious harm for the purpose of s.91R(1) of the Act.

8. Given the threats of the second named applicant’s family and related past events because they have entered an unacceptable, inter-caste marriage, a claim pertaining to religion, and considering independent country information concerning reports of violence and honour crimes involving couples who have entered such marriages against religious edict, the Tribunal finds that the applicants face a real chance of serious harm at the hands of the second named applicant’s family in the reasonably foreseeable future in their home area of Gujarat on account of their religion.

9. Based on the credible evidence of the applicants, and having regard to s.36(2)(aa) of the Act cited above, the Tribunal finds that the applicants face a real risk of significant harm. However, the Tribunal also needs to consider whether  s.36(2)(B) applies to determine if there is taken not to be a real risk.

   State protection

10. The independent country information set out above, indicates the law may not be enforced rigorously or effectively in some cases where there is violence associated with upholding ‘honour’ in matters relating to traditional marriage practices because of the high level of corruption, inefficiency and in some cases collusion and sympathy to uphold traditional values with violence. Considering this information and the circumstances of the applicants’ marriage and local family connections, the Tribunal finds that the applicant would not be able to access a level of state protection in their home area in accordance with the principles of MIMA v Respondents S152/2003.

11. Considering the conduct of the second named applicant’s family towards the applicants, and the threats of harm made in relation to the applicants’ [child], and the country information, the Tribunal finds that the applicants could not obtain protection from the authorities in their home area of Gujarat such that there would not be a real risk that they will suffer significant harm, MIAC v MZYYL [2012] FCAFC 147.

    Relocation

12. Having found that the applicants face a real chance of serious harm for reasons of their marriage without family consent if they return to their home area of Gujarat, the Tribunal must consider relocation to another part of India. The High Court has confirmed as a general proposition that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[26] Similarly, it may be reasonable for an applicant to remain in a place in that country where he or she will be safe.[27] 

    [26] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.

    [27] MIBP v SZSCA (2014) 314 ALR 514.

13. The Tribunal considered whether, it may be reasonable for the applicants to relocate elsewhere in India, such as one of India’s urban centres, several of which have populations in the millions or another area of India, where objectively, there is no appreciable risk of the occurrence of the feared harm and the applicants would be safe from harm from the second named applicant’s family. The Tribunal considered country information set out above, and put to the applicants for comment at the hearing, that India is a vast and populous nation, and the country information does not support a finding that the second named applicant’s family or anyone else would be able to find them in a new location in another area of India.

14. The applicants stated that the second named applicant’s family could find them even if they were to relocate to another area because they have a large [business] (growing and distributing) and have dealings in many [states].They stated that family members will find them if they relocate elsewhere because they travel extensively in connection with the trade and distribution of [various] produce and that they have contacts in many places who could provide information to them.  The applicants stated that there could be no guarantee that they will be safe even if they move to an area such as Delhi, where the family does not have business. The applicant stated that his first priority is to keep his [child] safe and that even if they were to relocate [very] far away, he would always be worrying about the safety of his family. Even with the passing of time, he would be worried and he observed that when his [child] was spotted at school in 2014 (a number of years after their marriage), threats against his [child] commenced. The applicants stated that, in India, a person’s past always goes along with them because the social life and society are so woven together and it is very difficult not to run across someone who recognises you.  Once recognised, it is easy for someone to go missing in India because it is such a huge country and population.

15. The Tribunal has considered these comments and accepts that the second named applicant’s family has a large [business] and has dealings in many states and that family members travel extensively, giving them contacts in many places. However, the independent country information set out above, and put to the applicants, indicates that India has a massive population and enormous cities. As put to the applicants, there is no registration system for Indians and even information sharing between police forces is very limited. On the basis of the country information above, the Tribunal considers the possibility of the applicants being located in another area of India by the second named applicant’s family and harmed by them, or anyone else, as very remote.

16. In considering whether it may be reasonable for the applicants to relocate elsewhere in India where objectively there is no appreciable risk of the occurrence of the feared harm, the Tribunal also took into account that the local police did not raise an FIR for the applicant’s case when he was beaten by members of the second applicant’s family. The Tribunal considers that while this may indicate that the police at a local level support the second applicant’s family, the country information does not support a finding that the local police through their own networks could locate the applicants at the behest of the second applicant’s family.

17. The applicants stated that they would be unable to give information about themselves to anyone, e.g. when applying for a job, for fear they would be recognised. In considering the applicants’ concern in this respect, the Tribunal has considered the country information above and finds that given the massiveness of India and its population, and the lack of information sharing across states, the possibility of the applicants being recognised in this way by someone who will inform the family of their whereabouts leading to their harm, is remote.

18. Given the totality of the independent country information and considering their individual circumstances, the Tribunal finds that the applicants could relocate to other Indian states where there is no appreciable risk of the occurrence of the feared harm.

19. The Tribunal has considered whether the applicants would be able to reasonably relocate to another area of India such as one of India’s urban centres. The applicants said they would be looking over their shoulders their whole lives in fear of being found by the second named applicant’s family. The applicant stated he would rather be in a detention centre in Australia. The second named applicant stated that she will fear for her safety when her husband is working. The Tribunal considered the applicants’ comments but given its finding that there is no appreciable risk of the occurrence of the feared harm in areas outside their home area of Gujarat, it does not accept that it would not be reasonable for the applicants to relocate to another state in India where there is no appreciable risk of ham.

20. There are a number of factors (put to the applicants for comment at the hearing) that strongly indicate that it would be reasonable for the applicants to relocate to another state of India where there is no appreciable risk of harm. At the hearing, the applicant stated that he understood that India has a fast growing economy and that employment opportunities exist.  The applicant also stated that he is aware that if you can get a good job, life is cheaper and better than life here. The Tribunal noted that the applicants are educated and speak read and write Hindi and English as well as Gujarati. The applicant stated that he did not have concerns about employment, only the safety of his family. The Tribunal accepted that the second named applicant may experience some obstacle in obtaining work because she does not have all her documents, but given the country information about the growth economy and employment opportunities, and noting her evident language skills, the Tribunal considers that she will be able to obtain employment in spite of this.

21. In assessing whether it would be reasonable for the applicants to relocate to another state of India where there is no appreciable risk of harm, the Tribunal considered the applicants statements at the hearing that relocation would be very difficult because they have no family support in India. The Tribunal accepts that they will not have the benefit of general family support in India in another area of India. However, the Tribunal assesses that they will be able to sustain themselves through employment. The Tribunal also notes that the applicant’s [Relative B] has provided him with very strong support to date, caring for his [child] since 2011 and communicating regularly with him on the telephone from India. The applicants will continue to have her emotional and social support, even if she is not physically located in the same area. The Tribunal has also taken into account that the applicants have shown themselves to have the ability to adjust to new environments in establishing themselves in rural Australia.

22. The applicants have not claimed that they will encounter any difficulties in relocation on account of their castes, religion (they are both nominally Hindu) or cultural factors.

23. In considering whether it would be reasonable for the applicants to relocate to another state of India where there is no appreciable risk of harm, the Tribunal has taken into account the applicants’ general concerns about their [child]’s health. In this regard, the Tribunal notes that the applicants stated that they opted to return their [child] to India when [he/she] was [a certain age] because they could access and afford paediatric treatment for [the child] there. The Tribunal has also taken into account country information that many people in India lack access to affordable health care and that the quality of health care is variable across the states[28]. The Tribunal considers that the applicants are educated and employable, and in settling in Australia and accessing services there, they have demonstrated they have the skills and knowledge to find and engage with health services if required. On the evidence before it, the Tribunal considers they will be able to access health services for their [child] if these are required.

    [28] DFAT Country Information Report, India, 2015

24. In considering whether it would be reasonable for the applicants to relocate to another state of India where there is no appreciable risk of harm, the Tribunal has also taken into account matters related to the applicant’s health. At the hearing the applicant stated that he has [a medical condition] which need to be [treated], however, he has lost weight because he is stressed and the doctor has advised that he is not strong enough at the moment for this procedure. As above, the Tribunal has noted that country information indicates that many people in India lack access to affordable health care and that the quality health care is variable across the states[29]. However, as also noted above, the Tribunal has considered the applicants’ overall circumstances and considers they will be able to access health services for the applicant if required.

    [29] DFAT Country Information Report, India, 2015

25. On the basis of the applicant’s oral evidence and the documentation from his General Practitioner and clinical psychologist, the Tribunal accepts that the applicant was initially diagnosed by his GP as having generalised anxiety and anger management issues, for which the GP referred him to the clinical psychologist, recommending counselling. The Tribunal accepts that the applicant has been receiving psychological therapy and medication to reduce the symptoms and increase his functionality.  The Tribunal accepts the psychologist’s statement that the applicant is stressed, sad and anxious about his circumstances, and that he presented with extreme anxiety and depression. The Tribunal also accepts the psychologist’s assessment that the applicant is distressed and that he finds it hard to cope with the uncertainty associated with his visa status, and that his anxiety and stress is not helping him physically or mentally, noting that an early decision on his visa status may be beneficial.

100.   The Tribunal acknowledges that the applicant faces difficult circumstances because his parents and his wife’s parents do not accept the applicants’ relationship. The Tribunal acknowledges that he and his wife have been separated from their [child] for a long period and that this has made the applicant sad and anxious. In this regard, the Tribunal has noted, and taken into account the applicant’s recent telephone advice to the Administrative Appeal Tribunal that he thinks about killing himself because he is concerned about something happening to this [child]. The Tribunal also acknowledges that the applicant has not been able to resolve his visa status over a protracted period, and this has led to uncertainty. The Tribunal also acknowledges that the prospect of relocating to another state of India where there is no appreciable risk of harm, may present some anxiety. However, the Tribunal finds that the applicant’s current anxiety and depression do not render relocation unreasonable. In reaching this conclusion, the Tribunal has taken into account that the applicant will have the support of his wife and will be reunited with his [child], and that uncertainty related to his visa status will be resolved.  The Tribunal notes that while the quality of health services in India is variable the level of support he is currently requiring to manage his mental health is not extensive and on the evidence before it as mentioned above, the Tribunal finds that the applicants will be able to access services if required.

101.   Considering all of the individual circumstances, and the country information, the Tribunal finds that it would be reasonable for the applicants to relocate to another state in India where there is no appreciable risk of harm. Accordingly, the Tribunal finds that the applicants do not have a well-founded fear of persecution in India.

102.   Considering the independent country information and the applicants’ individual circumstances, the Tribunal finds that it would be reasonable for the applicants to relocate to an area of the country where there would not be a real risk that they will suffer significant harm and that 36(2B)(a) applies to their cases, namely that there is taken not to be a real risk. Accordingly, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India that there is a real risk that they will suffer significant harm.

Conclusion

103.   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). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

104.   The Tribunal affirms the decision not to grant the applicants Protection visas.

Amanda Paxton
Member