1505395 (Refugee)

[2015] AATA 3235

1505395 (Refugee) [2015] AATA 3235 (24 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505395

COUNTRY OF REFERENCE:                  India

MEMBER:Sean Baker

DATE:24 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 24 July 2015 at 6:17pm

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant, who claims to be a citizen of India, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] May 2014.  The Tribunal, previously constituted, affirmed that decision.

3.    The Federal Circuit Court remitted the matter by consent on the basis that the Tribunal did not address the claim that the applicant feared harm from people in the community generally.

4.    The applicant appeared before the Tribunal on 27 May 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [the] applicant’s spouse, an Australian citizen. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6.    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).

7.    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.

8.    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’).

9.    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.

Claims

1. The issue in this case is whether the applicant will be harmed in India because he has married a divorced woman from a different caste who has [children] from her previous relationship. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The applicant was born on [date]. He arrived in Australia on a student visa [in] December 2007. He applied for a partner visa [in] April 2010 on the basis of a de facto relationship and subsequently married his spouse [in] January 2012. He was refused a partner visa and the Migration Review Tribunal affirmed that decision on 1 May 2013. The Minister refused to intervene [in] May 2013. The applicant’s spouse was granted a protection visa in 2009.

3. The applicant has provided a copy of his passport. The Tribunal is satisfied that the applicant is a national of India and has assessed his claims against India as his country of nationality and his receiving country.

4. The applicant is from Ambala Cantt, a twin city (along with Ambala) in Haryana State. His religion is Hindu and he claims to be from the Haryana Jatt caste. He was married to his wife [in] January 2012. His wife is also Hindu but is from Gujurat and claims to be from the Hindu KP Patel caste.

5. The applicant’s claims can be summarised as follows:

• He comes from a conservative and strictly religious family who will harm him for marrying a ‘tainted widow’, a divorced woman with [children] from a different caste and province and linguistic group to his family and older than him;

• His wife has been rejected by Indian society because she is a class of persons – a target of domestic violence, rejected and divorced, and for marrying her he too will be rejected and abused;

• He also fears harm from her family in India for abandoning her in Australia;

• He also fears harm from society ‘goondas’ and people in the community generally who will harm/mistreat him for flouting prejudices and social norms of class and caste.

• His wife cannot return to India as she has experienced harm there, she is in danger even here and he has to stay and look after her and her [children].

• If he is forced to desert his wife and leave her this could lead him to acts of violence or self-harm. If he goes back his behaviour may be aggressive.

• He has not been forgiven by his parents and their social circle for marrying his wife, and he has disregarded many Indian taboos. He will be treated with ridicule and rejected as a pariah.

• Indian society would say that he was treated with discrimination by Australia. If he then defended Australia he might end up in prison or be killed by a mob.

• His  uncle [was] beaten to death by other uncles before the applicant came to Australia for marrying a divorced woman;

• The khap panchayat (village caste council) in his district may also order that he be beaten and killed because of his marriage and the police will not assist him;

• Inter-caste marriage and marriage to divorcees is not acceptable in Indian society and parties to such marriages suffer violence and discrimination across India;

• Both men and women have been killed as a result of such marriages and the families of both men and women are the perpetrators of such harm;

• The police protect the caste system in India and will turn a blind eye to punishments meted out.

1. In further submissions is a letter of support for the applicant’s spouse visa application, and a submission provided by the applicant’s representative sets out his immigration history, history of his relationship, and also claims that the applicant and his wife are of different subgroups within the Hindu religion, the legal framework for grant of a protection visa, and the Convention grounds under which the applicant claims to fear persecution (df. 92-91), and sets out country information.

2. The applicant attended an interview with the delegate in which he expanded on his claims. The application was refused by the delegate and the applicant applied to the Tribunal, including a copy of the delegate’s refusal. A submission from the applicant’s representative was provided on 28 November 2014 which expanded on the previous submission. This sets out that the applicant claims to fear harm as a member of the following particular social groups:

   ·People involved in inter-caste marriage;

   ·People involved in inter-religious marriage;

   ·People who marry against the wishes of family;

   ·People who marry a divorcee;

and urged the Tribunal to consider these individually and cumulatively, as well as setting out that his marriage constituted ‘substantial grounds for believing’. The submission addresses state protection and relocation before addressing credibility findings made by the delegate. The previous Tribunal held a hearing at which the applicant and his wife presented evidence and it was agreed that the applicant would provide further evidence after the hearing. This dealt with caste, religion and particular social groups, and argued that the applicant could not access effective third country protection in Nepal. The previous tribunal affirmed the decision.

1. On remittal from the Court, a set out above, I set the matter down for a hearing. The representative provided a submission on 26 May 2015 which covered the matters accepted by the previous Tribunal, relocation, and a clarification in relation to his statutory declaration dated 14 May 2014 in which he claimed his uncle married a widow who had children from a previous marriage and was beaten to death by other uncles of the applicant and their relatives. The submission noted this to be a mistake of wording and that he had been beaten severely, and that the applicant’s oral evidence to the delegate and the previous tribunal had been consistent on this.

2. A hearing was held at which I took evidence from the applicant, his wife and his brother about the claims, and explained issues and concerns I had with his claims which in some respects differed from those of the last Tribunal.

3. I provided time after the hearing for further submissions. A submission was received dated 24 June 2015 which did not include any further claims but urged that the case be referred to the Minister.

Consideration of claims

1. In considering the applicant’s claims I note that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.) The Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

2. The applicant has not claimed to have been harmed in the past. However, he fears harm on return to India. His fear of harm centres on his relationship with his wife. From this relationship it is claimed that the applicant is a member of several particular social groups.

3. I accept that the applicant is married to a divorced woman with [children] from her previous relationship. I accept that he is from a different caste, province and linguistic group to his wife and is younger than she.

4. I do not accept that the marriage is or would be considered an inter-religious marriage – both of them are Hindus and there is no evidence before me to indicate that distinctions are drawn between marriages of Hindus on that basis. I do not accept this claim.

5. I accept that this marriage is against a number of Indian taboos, including marrying a divorcee, marrying a divorcee with children from the previous relationship, marrying someone from a different caste, marrying someone from a different province and linguistic group, and marrying a woman who is older.

6. I accept on his consistent evidence that if he is forced to return to India he will return alone, without his wife and her children.

7. The applicant claims that for the above reasons, he will be harmed on return to India. I do not think he will be. This is because I do not accept certain aspects of his claims and because I do not believe that the country information combined with the claims I do accept about him leads to a real chance or a real risk of him suffering serious or significant harm.

8. The applicant has claimed that he comes from a conservative and strictly religious family from whom he fears harm – honour killing or other serious or significant harm on the basis that he has contravened the honour of his family. He claims that there is a real chance or real risk of this occurring because his family are socially conservative and his extended family have harmed his uncle for substantially the same ‘crime’ against the family honour. I do not accept that his family are conservative and strictly religious as claimed for the following reasons.

9. Firstly, the applicant has given only vague and undetailed specifics of his assertion that his family are conservative and strictly religious. At the first hearing he gave evidence that he only attended temple on religious festivals and that his family did not mind him attending a Sikh temple which indicates to me that his family did not impose any strict religious behaviour on him. He claimed at the hearing before me that his parents beat him really bad when he did not study well when he was a student. Even if I accept this occurred, I do not accept that this behaviour of his parents, when he was a schoolboy, without further evidence, indicates that his parents are conservative and strictly religious.

10. Secondly, other evidence the applicant has provided strongly indicates that his family are not conservative and strictly religious. The applicant stated that his parents both work, his father in [a certain industry], [and] his mother has a home based [business]. He stated that his parents had agreed for him and his brother to come to Australia to study. I noted to him that his parents live in a ‘twin city’ (Ambala city and Ambala Cantonment) of approximately 400,000 people[1], and he agreed. As noted in country information below, honour killings and crimes are predominantly perpetrated in rural areas, and urban areas are considered less socially conservative. The applicant argued at the hearing that [Ambala] has many small villages around it. Even if this is the case, he lives within the urban area, and I consider that this is significant to an assessment of the risk. He said if his parents both working meant their thinking was changed why did they oppose his helping his wife before they were married, and why did they stop speaking to him. As noted below, I accept that they may disapprove of the relationship, but this does not indicate to me, without more, that his parents are socially conservative and strictly religious, nor that they would seek to harm him, and nor do I accept that they stopped speaking to him.

    [1] and

11. Thirdly, and most significantly, the applicant claimed in his statutory declaration dated 14 May 2014 that his uncle’s ‘own real brothers and relatives beat him [the applicant’s uncle] to death for his got married to that woman [a widow who had children from her previous relationship]. This incident with my uncle happened a few months before I left my country’ [at paragraph 18], and he goes on to state that ‘As I mentioned my uncle who is beaten to death because of, he got married to woman who was widow and had kid from previous marriage’ [at paragraph 31]. At the interview with the Department the applicant said that he had meant his uncle was beaten almost to death or close to death and was hospitalised. He repeated this claim at the previous Tribunal hearing and at the hearing before me. In submissions as noted above the representative flags this discrepancy and clarifies that the applicant meant his uncle was beaten severely or close to death and then hospitalised. It was further argued by the representative at the hearing that the phrase was used incorrectly in the statutory declaration and that if this was what the applicant meant he would have said killed or murdered. I am not convinced by any of these explanations, when I consider the good level of the applicant’s English, and the way this phrase is used twice in the statutory declaration, which was prepared with the assistance of the representative, I do not believe that this phrase means anything but what it states. However, it was the additional inconsistency between the applicant’s evidence and that of his brother that, in addition to my above concerns, leads me to find that this event has not ever happened.

12. The applicant has been consistent that this beating of his uncle, either to death or close to death and requiring hospitalisation, happened a few months before the applicant left India in 2007. He repeated this date at the hearing with me. However, when his brother gave evidence at the hearing before me he said that their uncle was beaten because of his marriage to an inter-caste girl a year to a year and a half ago, and when I clarified this he said that it had happened in 2013 or 2014. I put this considerable inconsistency in the date of this event to the applicant at hearing. He elected to respond but also reserved the right to respond in writing. He said that the event was true and this happened and he was not sure why his brother said 2013 and 2014, this happened in 2007. His brother said that he had messed up with dates but that this had happened for sure. The applicant said that in his statutory declaration he had meant they had beat his uncle close to death. I note that in the applicant’s brother’s statutory declaration provided at the hearing he claims this event occurred but does not provide a time. The representative said that she had spoken to the applicant’s brother and that he had indicated this had happened before he arrived in Australia, and he arrived in 2009 or 2008. I have considered these explanations but I do not find them convincing, I checked the date with the applicant’s brother during his evidence and confirmed this evidence. When I combine this with my concerns with the applicant’s statutory declaration it leads me to find that the applicant’s uncle was not ever beaten for marrying a woman who was a widow and had children from her previous marriage, or was intercaste. I find that this event did not happen.

1. For all of these reasons, on weighing his evidence, that he has been unable to provide more than vague evidence of why he claims his parents are socially conservative and strictly religious, the fact that he has been untruthful about the event with his uncle, which I consider was an attempt to portray his family and extended family as conservative and strictly religious, and as inclined to commit honour crimes, the fact that his parents reside in a town, which is referred to as a twin city, that they both work, and that they were willing and able to send both of their children to study in Australia leads me to the view that they are not, in fact, socially conservative and strictly religious. The applicant claimed that their remarks when his uncle was beaten demonstrated that they were socially conservative, with them not engaging in the beating but expressing approval. However, for the reasons above I do not believe that this beating ever took place, and so I do not believe that his parents have expressed these views, in that context or any other.

2. Whilst I do accept that the applicant’s parents may be upset or even angry if they learn he has married without telling them, and I note that he claimed at the hearing that they had stopped taking to him, I also note that he then said that they did speak but not about his marriage, and so I do not accept that his parents have stopped speaking to him. I consider that if he returned to India, his parents may be upset and disappointed to learn he has married, but that is all that they will do. I do not accept that such treatment amounts to serious or significant harm.

3. There are additional reasons why I do not accept his family, relatives, or others will harm him. I note country information that inter-caste marriages are increasing, particularly in urban areas. [2] Country information put to the applicant indicates that the situation in relation to honour crimes in Haryana is more complex than the applicant and his representative have portrayed it. Haryana is one of the worst states of India in terms of honour crimes, with NGOs estimating that in 2013 at least 900 such killings occurred in Haryana, Punjab and Uttar Pradesh alone.[3] There was a suspected honour killing of a young couple in the Murthal area of Sonepat district recently in April 2015.[4] However, what I consider more relevant country information in relation to the applicant, dealing as it does with the situation specifically in Haryana and analysing actual honour crimes and where and to whom they occur, which I put to him at hearing, indicates that:

   Positively, the districts with mixed population are much tolerant towards love-marriages, including the inter-caste, inter-religious marriages and marriages in same gotra. Occurrence of only 3 per cent incidents of honour killings in these districts confirms the fact. These districts are more urbanized, reasonably connected to the major cities and even Union territories, i.e. Panchkula, Ambala, Yamunanagar, Faridabad and Gurgaon. These districts comprise comparatively more urban population, the literacy rate here is much higher and more people are engaged in organized public and private sector professions. Thus, the attributes of the socio-cultural modernization have reasonably modified their psychological mind set and in general. The literate and urbanised people of these districts have adopted the process of abandoning the local conservative value system and have started adapting themselves to the modernized, westernized universal value system.[5]

   [2] Singh D and 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

   [3] United States Department of State, Country Reports on Human Rights Practices for 2014 – India, section 6,

   [4] Bhatnagar, G., 2015, ‘Honour killing in Haryana?’, The Hindu, 7 April,

   [5] Deol, S. S., 2014, ‘Honour Killings in Haryana State, India: A Content Analysis’, International Journal of Criminal Justice Sciences, Vol 9, issue 2 July – December 2014,

4. Further:

   In Haryana also, honour based killings emerge out as more gender-specific crime as envisaged in the society generally. The analysis of the 100 sample cases discloses that the girl alone is killed in 52 per cent cases while the boy alone is killed in 10 per cent cases. In 38 per cent cases, both the girl and the boy are killed. [6]

   [6] Deol, S. S., 2014, ‘Honour Killings in Haryana State, India: A Content Analysis’, International Journal of Criminal Justice Sciences, Vol 9, issue 2 July – December 2014,

5. I explained this information to the applicant at the hearing. I explained that I considered this study to be very useful because it dealt with the situation of honour killings specifically in Haryana, and was an analysis, rather than just news reports, which analysed the circumstances around a representative 100 cases of honour killing in Haryana. Whilst it deals with honour killings, I consider the findings to be applicable generally to all honour crimes. I note that this study is in line, although more specific to Haryana, than other country information which indicates that honour crimes are committed with much greater frequency in rural areas and hostility to unconventional marriages is less likely in urban areas.[7] In response to this country information and other country information set out below, the applicant said that he was not sure about this as these papers were not what he had seen when he went online and saw what was happening in Delhi and Bombay. I pointed out that the information I had shared with him was in relation to Haryana and Ambala specifically. He said that Ambala is small. I said that it was described as a twin city and had a sizeable population, and that it was identified in the articles as being urban rather than rural. He said this was the municipality and [Ambala] is covered all around with little villages. I noted to him that the country information may indicate to me that there was a very small risk of an honour crime being committed in Ambala as an urban area with a mixed population, as set out in the country information (including other country information referred to below).

   [7] Department of Foreign Affairs and Trade 2011, DFAT Report No. 1285 – India: RRT Information Request: IND38682, 30 May;  Jayaram, V n.d., ‘Hinduism and Marriage’, Hinduwebsite.com >

   I do not accept that the applicant’s family are socially conservative. I have found above that his uncle was not beaten (to death or beaten and required hospitalisation) and have found that this incident did not occur. I have had regard to the country information but prefer the specific information which indicates to me that only 3% of honour killings occur in mixed areas of Haryana such as Ambala, and that men alone, or men and their partner, are killed in less than half of the surveyed honour killings. The country information indicates that this is because attitudes to social norms are more liberal and less conservative in urban areas, which I consider [Ambala] to be. When I consider all of this information it leads me to the conclusion that there is no real chance or real risk that the applicant’s family, relatives or any other family members will harm him for reasons of his marriage or for his membership of any of the particular social groups claimed. I find that the incidence of such a low rate of honour killings in urban areas including Ambala, in the country information, and my findings on his family lead me to this conclusion. The applicant has further claimed that he has not told his family about his marriage as he is afraid of their response. I do not accept this, given my findings in relation to his family, and find that even if this is true that he could tell his family and they would be disappointed and disapproving, may be upset and angry but would not harm him in any manner.

6. He also claims to fear harm from the khap panchayat or village council of his district which may order that he be harmed for reasons of his marriage which goes against social norms or his membership of the one of the particular social groups identified. I do not accept this. Khap Panchayat are a rural phenomenon, with one article specifically indicating that Ambala district (in which Ambala cantonment/Ambala city are) is a ‘non-Khap Panchayat district.’[8] The applicant claimed that there was a khap panchayat in Ambala, as did his brother. On the basis of this country information I find that this is simply untrue, and on the basis of the country information I do not accept that khap panchayat’s have any authority or sway in non-Khap Panchayat districts including Ambala.[9]

   [8] Singh, S., Singh, D., 2013, ‘Identifying The Centripetal And Centrifugal Forces Through Khap Panchayats In Haryana-An Analysis’,  IOSR Journal Of Humanities And Social Science, Volume 16, Issue 4 (Sep. - Oct. 2013), PP 109-116 - Singh, S., Singh, D., 2013, ‘Identifying The Centripetal And Centrifugal Forces Through Khap Panchayats In Haryana-An Analysis’,  IOSR Journal Of Humanities And Social Science, Volume 16, Issue 4 (Sep. - Oct. 2013), PP 109-116 - >

   He also claims to fear harm from society ‘goondas’ and people in the community generally and society who will harm/mistreat him for flouting prejudices and social norms of class and caste. At hearing he said that he feared comments and physical harm if he told them he was married to a divorcee. I noted to him that there would be no requirement on him to tell people he was married to a divorcee, and it had been his consistent evidence that his wife and her children would not return to India with him. I do not accept that the applicant will tell people in the community that he is married to a divorcee with children. However, if this information is shared by his parents or family, which may occur, I do not accept that the community generally in Ambala cantonment/Ambala city will harm the applicant on the basis of the country information set out above that indicates that honour crimes are committed with much greater frequency in rural areas and hostility to unconventional marriages is less likely in urban areas. I also note country information explained to the applicant from the article above that in Haryana, of the cases studied, only 10% involved ‘other associates’, identified as family accomplices, friends of girls’ brothers, and only 3% involved contract killers.[10] When I consider this information with the other country information about the situation in urban areas, which I consider his home area to be, I find that there is no real chance or real risk of the applicant being seriously or significantly harmed by society ‘goondas’ or people in the community generally and society or anyone else in Ambala cantonment/Ambala city for flouting prejudices and social norms of class and caste or for any other reason. I accept that he may experience disapproval, and may even face some forms of discrimination from some elements of his family, wider social circle and the community, but on the country information and what I accept of his claims I do not accept that this will reach the level of serious or significant harm, given information that urban areas are less socially conservative and more accepting of marriages against social norms.

   [10] Deol, S. S., 2014, ‘Honour Killings in Haryana State, India: A Content Analysis’, International Journal of Criminal Justice Sciences, Vol 9, issue 2 July – December 2014, >

   The applicant has also claimed to fear harm from his wife’s family for abandoning her in Australia. However, he has given evidence that her parents did not oppose their marriage, and Gujarat is over 1,000 km from his home. I do not accept on his scant evidence that his wife’s family will seek to harm him, or would choose to travel to find and harm him for this reason or any other.

7. On the basis of the above findings I do not accept that if the applicant returns to India now or in the reasonably foreseeable future, that he will face a real chance or a real risk of suffering serious or significant harm on return to [Ambala] for reasons of marrying a divorcee, marrying a divorcee with children from the previous relationship, marrying someone from a different caste, marrying someone from a different province and linguistic group, marrying a woman who is older, or a woman from a different sub group of Hinduism, a person considered a ‘tainted widow’, as a member of a particular social group involving people involved in inter-caste marriage, people involved in inter-religious marriage, people who marry against the wishes of family or people who marry a divorcee, or for any other reason, from his family, his relatives, the Khap Panchayat or people on the orders of the Khap Panchayat, society ‘goondas’, people in the community generally or society, his family-in-law or anyone else.

8. For the above reasons I also do not accept that the rejection of his wife by Indian society as a target of domestic violence, rejected and divorced, and for marrying her, means that he too will be rejected and abused by Indian society. He has provided no more than a general statement that this will occur, and as above whilst I accept he may experience disapproval from some elements of the community, I do not accept that this will reach the level of serious or significant harm. I do not accept his claims that desertion of his wife will lead him to commit acts of violence – he will have migration options to return to Australia open to him and I simply do not accept that he will suffer such a lack of control that he would perform acts of violence or self-harm – there is no evidence of him behaving in this manner in the past or evidence that he would do this in the future if he returned. Similarly, I do not accept his claimed scenario that Indian society would say that he was treated with discrimination by Australia and that if he then defended Australia he might end up in prison or be killed by a mob. He has provided only this vague statement and has not explained how this would occur, in what context, why he would end up in prison or be killed by a mob for defending Australia. I find this completely implausible and far-fetched.

9. I accept that his family and their social circle may be disappointed in his marriage and consider that he has rejected many taboos, but I find that they will be disappointed and will not express this disappointment in a manner which causes serious or significant harm to the applicant. For the reasons above I do not accept that he will be treated with ridicule and rejected as a pariah.

10. I accept that his wife cannot and does not wish to return to India. I do not accept on his scant and undetailed evidence that she faces harm in Australia, where she has been granted protection and is now a citizen. I accept the applicant has a strong wish to remain and look after her and her [children], which I have taken into account in making a recommendation below, but I do not accept that the applicant will suffer any form of serious or significant harm if he has to return to India and would therefore be unable to stay and look after her and her [children].

11. For the reasons set out above, I do not accept there to be a real chance that the applicant will be subjected to serious harm for reasons of his membership of a particular social group or for any other reason.

12. Moreover, 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 he will suffer significant harm arising from his claims above. He has made no claims to fear harm on return for any other reason and on the evidence before me I do not accept that any other claims arise.

13. 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).

14. 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).

15. As indicated above, the applicant’s wife was granted a protection visa. However, she is now an Australian citizen and I find therefore that the applicant cannot satisfy 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).

Ministerial referral request

1. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

2. Having considered the submissions and attachments, including the harrowing statutory declaration of the applicant’s wife, an Australian citizen granted protection, I consider that on the grounds of harm to the Australian citizen wife and her children, and the best interests of those children, the applicant should be considered by the Minister on the basis of his spousal relationship and his evident care for and relationship with her children.

3. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ and will refer the matter to the Department.

DECISION

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

Sean Baker

Member