1504785 (Refugee)

1504785 (Refugee) [2016] AATA 4963 (11 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1504785
COUNTRY OF REFERENCE:                  India
MEMBER:David Corrigan
DATE:11 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 11 March 2016 at 5:05pm

CATCHWORDS
REFUGEE – Protection visa – India – religion – Sikh – Jat caste – particular social group – mixed caste marriage – divorced women – single women – disinherited by parents – fear of killing – threats of violence – honour killing – formal complaint to police – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 16 September 2014 and the delegate refused to grant the visa on 31 March 2015.
The applicant appeared before the Tribunal on 5 January 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
I have before me material which includes:
·Application for protection visa with statutory declaration dated 28 July 2014;
·Agent’s written submission dated 29 July 2014;
·Copy of certificate of marriage of the applicant and her husband, dated [in] May 2014;
·Copies of photos of the applicant and her husband;
·Copy of Gurdwara Prabandhak Committee Caste Certificate of the applicant stating that she is of the Jat caste;
·Copy of Scheduled Caste Certificate, dated [in] 2014, stating that the applicant’s husband is of the Ravidasi Caste;
·Agent’s written submission dated 19 January 2016;
·Translated copy of a statement by the applicant’s mother to the [named] Police Station stating, inter alia, that as the applicant has married within a different caste, people from the community and all relatives are opposed to the matter and if they find her then will kill her as she made them lose face. It is also stated that the applicant has been disinherited and if she comes to India she is danger from relatives and community members.
The applicant’s claims can be summarised as follows. She was born in [year] in [her home town in] Jalandhar, Punjab, India in [year]. She first arrived in Australia in April 2008 on a [temporary] visa and held two further [temporary] visas, the last expiring in November 2011. She lodged a [different temporary] visa on 11 November 2011. This was refused on 8 May 2013 and she became an unlawful non-citizen [in] June 2013. She was granted a bridging visa in conjunction with her first invalid protection visa application on 8 August 2014.
The applicant is a Sikh and of the Jat caste. Whilst in Australia she met her husband in July 2012. She did not inform her parents because he was from a Ravadisi caste. When she told her sister in December 2013 about her husband, her sister told her not to have an inter-caste relationship as their parents would be very angry and would kill her. Despite the warning, they married in May 2014. When she told her family in June 2014 about the marriage they begged her to divorce her husband. They told the applicant they would be socially isolated and ostracised from their community as a result of her marriage. They said they no longer consider her their daughter and they will kill her and her husband if they return to India. The applicant fears she may be killed by her family or extended family including her uncle who is in the police force. She has now separated from her husband and she fears harm as a single and divorced woman in India.
Country of reference
The applicant claim to be an Indian national. Based on the copy of her passport which she has submitted, I find that India is her country of nationality for the purposes of the Convention and that this country is his receiving country under s.36(2)(aa) and s.5 of the Act.
Assessment of claims
I have considered carefully the applicant’s claims but I do not consider her to be a credible witness. I do so for the following reasons:
·The applicant’s evidence was marked by substantial and fundamental inconsistencies. For example, she told the Tribunal that her husband told her that he was a member of the Ravidasi caste on “day one” when they met and that she was “a little upset” when she heard this. However, in her statutory declaration, she stated that a friend introduced her to her husband sometime in July 2012 and that it was in December 2013 that he told her he was of the Ravidasi caste and she was “devastated”. At the hearing, the applicant commented that she knew from the start and that love is blind, however I do not accept that these explanations adequately explain the inconsistencies. The applicant also gave inconsistent evidence concerning when she told her sister about the relationship: at the hearing she said it was in early 2013 whilst in her statutory declaration she said it was in December 2013. The applicant commented she told her when she first started him and that she was bad with dates but I do not consider this adequately addresses this inconsistency. I find these matters detract from her credibility.
·At the hearing, the applicant told the Tribunal that her parents had made a complaint to the police about her marrying a person of a different caste and disowning her and the police had accepted it and signed. She said it was made when she got married and she said her sister obtained the complaint at that time whilst she resided in India. Asked why she was submitting this now, the applicant said it was because of her memory. However, I note that the applicant was legally represented when she lodged her application for a protection visa and has been throughout the process and I do not accept it is credible that she would forget the existence of such a document that was supportive of her claims. I have considered the document which was submitted but I find that it is self-serving and that there is no apparent reason why the applicant’s mother would have made such a report given that it is stated that she had disowned her daughter and did not want her to come to India and given the applicant has claimed her parents have warned her that if she returns to India they will kill her. Nor is it apparent why the police would have accepted it, as inter-caste marriage is legal and not a criminal offence in India.[1] I find the submission of this document detracts from her credibility.
·I’ve had regard to the reports referred to in the agent’s submissions concerning honour killings in India on the basis of inter-caste marriages, however country information indicates that inter-caste marriages are common in the Sikh community in India. According to a 2011 paper, 10.1 per cent of Sikh women interviewed for a 2005 Indian Human Development Survey (IHDS) indicated that they had married outside of their caste. There is also evidence that the Punjab which a majority Sikh population[2] has the highest rate of inter-caste marriage in all of India (12 per cent), more than twice the national average (5 per cent).[3] I find this further detracts from the credibility of the applicant’s claims.
[1] Lawyer’s Collective, Inter-caste marriages in national interest:SC, The Tribune, Migration may have led to decline in Sikh count, 27 August 2015,
[3] The data is taken from the Indian Human Development Survey (IHDS) of 2005. The IHDS interviewed 41157 households. Singh, D & Goli, S 2011, ‘Exploring the Concept of Mixed Marriages in Indian and selected states: First Time Evidences from Large Scale Survey’, Population Association of America 2011 Annual Meeting Program, Princeton University website, pp.3,5,13 < Accessed 19 March 2012.
Given these highly significant concerns about the applicant’s credibility, I do not accept that she did not inform her parents about her relationship and marriage because her husband was from a Ravadisi caste. I do not accept that the applicant and her husband are of different castes. I do not accept when she told her sister about her husband, her sister told her not to have an inter-caste relationship as their parents would be very angry and would kill her. I do not accept that when she told her family about the marriage they begged her to divorce her husband. I do not accept that they told the applicant they would be socially isolated and ostracised from their community as a result of her marriage. I do not accept that they said they no longer consider her their daughter and they will kill her and her husband if they return to India. I do not accept that her mother lodged a report to the police, saying amongst other things, that she has disinherited the applicant and that she is in danger from relatives and community members. I do not accept that the applicant is or was of any adverse interest to her family (including her uncle), members of her community, the police or anyone else.
In making my findings, I have taken into account the Tribunal’s Guidelines on the Assessment of Credibility and the Department’s PAM3 – Asylum claims – assessing credibility guidelines (including the effects of anxiety on applicants and the passage of time). However, these do not overcome the highly significant concerns I have about the applicant’s credibility that are set out above. In making my findings, I have taken into account the submitted caste certificates, however, these do not overcome the highly significant concerns I have about the applicant’s credibility that are set out above
I accept that the applicant is a Sikh woman who is married to an Indian man and she has now separated from him. However based on my findings about her credibility set out above, I do not accept that she is or has been the subject of any disproval from her family or community members and I find she would be able to return to her home area in India with the support of her family (she had indicated in her statutory declaration that when she first came to Australia she was financially dependent on her parents and after her marriage in May 2014 she was dependent on her husband). Whilst I accept that she will be returning there as a single woman who is separated or divorced, I find the chance or risk of her being seriously harmed or significantly harmed is remote.
Country information indicates that many Sikhs still regard divorce as shameful and that there may be stigma attached to divorced people, particularly women. It also indicates that a woman who seeks a divorce may risk social disapproval and rejection by her community”.[4] However, I do not accept the applicant has suffered social disapproval and rejection by either her family or the community as she had claimed. Whilst she is married and is likely to divorce, her marriage was conducted in Australia and within a short period of time after the marriage began the relationship ended. Whilst I accept that the applicant may suffer some level of stigma and social disapproval, I do not consider in all the circumstances of her case that this would amount to either serious harm or significant harm. I do not accept that she would be forced to live alone and I note that she has obtained qualifications in Australia ([specified qualifications]) and has had work experience [that] will assist her to obtain employment upon her return.
[4] Brown, E 2006, ‘Ritual and Religion’ in The Oxford Textbook of Palliative Care for Children, eds Goldman, A, Hain, R & S Liben, Oxford University Press, Oxford, pp. 204-230, p. 220.
I have taken into account the submitted country information concerning rape and domestic violence against Indian women, however as I do not accept that the applicant has any been rejected by her family and she has not claimed to have been harmed by them in the past and given she would not be with her husband, I find the chance of her being subject to domestic violence is remote. Furthermore, whist I accept that rape is a serious issue in India, I find the chance of this occurring to the applicant is remote. The applicant’s agent has submitted country information from the US Department of State that there were 24,923 cases of rape nationwide in 2012 and that observers considered this an unreported crime. In a post-hearing submission, the agent submitted that there are approximately 36 million single women and that the rape statistics do not distinguish the age of the victims. I have considered these statistics and that the crime is under reported; however I do not accept that they indicate that the chance or risk of this happening to the applicant is anything more than remote. In making this finding, I note that the applicant will not be returning without family support and she has not made any claim to have suffered this treatment (or any other act of serious harm or significant harm such as being targeted for sex and prostitution) in the past. I accept that there is discrimination against women and single women in India, but I do not accept that the submitted country information and her individual circumstances would mean that this would constitute either serious harm or significant harm to the applicant.

Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that she does not face a real chance of persecution in the reasonably foreseeable future for any Convention reason (including membership of particular social groups consisting of single women in India or divorced women in India) or any non-Convention reason. I do not accept that she is a member of particular social groups consisting of Punjabi women marrying outside their caste, Punjabi women marrying lower caste men or Punjabi women marrying without family’s approval or that she faces a real chance of persecution in the reasonably foreseeable future for these reasons. Her fear of persecution is not well-founded.
Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that she will suffer significant harm.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
David Corrigan
Member

[2016] AATA 4963

11 March 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction