1506841 (Refugee)

[2016] AATA 4058

1506841 (Refugee) [2016] AATA 4058 (8 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506841

COUNTRY OF REFERENCE:                  India

MEMBER:Tigiilagi Eteuati

DATE:8 July 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 08 July 2016 at 5:11pm

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] December 2014 and the delegate refused to grant the visa [in] April 2015.

3. The applicant appeared before the Tribunal on 1 October 2015 to give evidence and present arguments.

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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 AND EVIDENCE

19. The applicant provided a statement dated 8 December 2014 with his protection visa application which stated:

    “I, [the applicant] of [address] in the State of [name], do solemnly and sincerely declare as follows:

    1.I am an applicant for a protection visa.

    2.As stated below, I am applying for a protection visa because I believe that if I return to India, my life will be in danger, and therefore I seek protection here.

    Brief background

    3.I am an Indian citizen. I was born on [date] in a small town in the State of Punjab, India.

    4.I belong to the Hindu religion and my parents are practicing Hindu. I have [siblings] [number] of whom live in India and one [sibling] lives in [country].

    5.I was married [in] January 2007. My marriage was arranged by my parents.

    6.I came to Australia in July 2009 as a holder of [temporary] visa and my wife was a dependent spouse.

    7.Soon after arriving in [City 1], we started having problems in our marriage. I did not know anyone in [City 1]. I felt very lonely and helpless. It was very upsetting to be abused, threatened constantly by her. I tried to plead with her and tried to make our marriage work but nothing would please her.

    8.It affected me [badly]. Consequently, we started living separate lives.

    9.When it became obvious that our marriage was not going to work, I applied for divorce which was granted [in] 2011.

    10.When I tried to have the divorce application served on her, she made herself scares, and I then had make arrangements to have it served in India. I do not know where she lives.

    Reason for seeking protection in Australia

    11.Since I came to Australia, my life has been full of problems. I do not have any qualifications or training to enable me to get a decent job, and I could not do anything while in Australia because of the stressful situation I have been in.

    12.When I was very stressed and depressed as a result of my wife's conduct, I had spoken to my parents who spoke to her parents. This made her very angry and aggressive. She threatened me that she may not be able to do anything when I am in Australia but the day I go to India I "will be finished".

    13.Her threats were real because her parents and others on their behalf made similar threats to my parents. They wanted to know what was my address in Australia and when was I coming to India. My parents, who are very simple people became extremely stressed and scared.

    14.My parents live about [number] minutes' drive away from her parents place. That is why they are very concerned.

    15.At some stage my parents also were angry with me because they believed I was the reason for their circumstances.

    16.My father even put an ad in the local newspaper in the local Punjabi language [in] 20111. It reads: I am [name] son of [name], [district]. Declare that my son [the applicant] and daughter in law [name]. I have no any officially relation with them because they don't listen to me. Who lives in Australia so if any one give them money he will be responsible on his own risk A copy of the newspaper ad is attached to this statutory declaration.

    17.I was very upset and I did not know what I could not do anything. But gradually I could understand the reason behind it. My parents were too scared and they thought that this way my wife's parents will leave my parents alone and not bother them or threaten them.

    18.The fact that our relationship became very difficult soon after coming to Australia. She started to threaten me that when I go back to India her family will teach me a lesson.

    19.I am aware that life becomes very difficult in Punjab for people who are divorced against the wishes of the other partner.

    20.I have a video in which a man in similar circumstances was brutally killed in a very heinous way. I am very scared that if I return to India it could happen to me too.

    21.It is well known in Punjab that it is very dangerous for a person like me if the parents of the partner are influential because of money or connection with politician and authorities.

    22.In my case, I divorced my wife because it became intolerable for me to live with her because she was abusive, violent and always threatening. After the divorce, her family has made a threat that when I come to India, I won't go back to Australia alive. I am very fearful of returning to India.

    23.I recall that before the divorce application was filed, I was contacted by a man who threatened me that if I proceed to divorce her, I will be in serious trouble. I received many other similar calls which I believe that those call were made on her behalf.

    24.I have no doubt that if I return to India, my life will be in danger. The police or other goverment agencies will not be able to protect me because they are all corrupt and work for powerful people or who can pay them a lot of money.

    25.I have not been back to India since I came to Australia because I am very scared. I have not seen my parents or siblings for more than five years.

    26.I therefore ask that my circumstances be taken into account and I be granted a visa.”

20. In answer to the question in his application form as to what the applicant feared may happen if he returned to India the applicant stated:

    “Relationship became very difficult soon after coming to Australia. She started to threaten me that when I go back to India her family will teach me a lesson. Life becomes very difficult for people who are divorced against the wishes of the other partner. It becomes dangerous if the parents of the partner are influential because of money or connection with politician and authorities. In this case I divorced my wife because it became intolerable for me to live with her because she was abusive, violent and always threatening. After the divorce, her family has made a threat that when I come to India, I wont go back to Australia alive. I am very fearful of returning to India.”

21. In answer to the question in his application as to why he thought he would be harmed if he returned to India the applicant stated:

    “It is more than likely that I will be arrested, kidnapped, tortured by her family or police at their behest. I am scared that they may even kill me.”

22. In answer to the question in his application as to whether he thought the authorities in India could protect him if he returned he stated:

    “In Punjab, the police force and government system is corrupt to the core. The only help those who have got money or political connections. I have neither. Police or the government will not protect me.”

23. At the hearing before the Tribunal the applicant claims to have married his ex-wife in an arranged marriage in April 2007. The applicant claimed that the couple lived with his family in India until they arrived in Australia in July 2009. The applicant claimed that he and his ex-wife were both Hindus of the same cast.

24. The applicant claimed that by September or October 2009 his ex-wife had begun drinking and smoking and that this caused arguments between them as the applicant did not believe that his ex-wife should smoke or drink.

25. The Tribunal asked the applicant whether his ex-wife used to smoke and drink at home around him and he said that she would smoke at home but she went out to drink. The Tribunal asked whether she used to drink with other people and the applicant claimed that she used to drink with co-workers. Asked where she worked and what her job was, the applicant answered that he thought she worked in the city but did not know her occupation. He said that she applied online for a job and received a phone call to advise that she had been employed.

26. The Tribunal asked the applicant whether there was any other reason why the couple separated other than her smoking and drinking and the applicant confirmed it was only her smoking and drinking. The applicant said that he had never seen a woman in India smoke or drink and it was against his culture for a woman to do so.

27. The Tribunal indicated that in the Department’s decision, which the applicant had provided to the Tribunal, the applicant had indicated that the reason that the couple split was because the applicant thought that she was lazy. The applicant had told the Minister’s delegate that he was busy studying and while his ex-wife could work she was lazy and did not want to do anything at all.

28. The Tribunal asked the applicant whether he wished to comment on the inconsistent reasons he had given for the couple separating. The applicant claimed that there must have been some miscommunication between him and the delegate. The Tribunal indicated that it was unconvinced that there was miscommunication as the Tribunal could understand the applicant well. The Tribunal asked the applicant again why he had told the Tribunal that his ex-wife was working in the city when he had told the Minister’s delegate that the reason for the couple’s separation was that his ex-wife was lazy and didn’t work. The applicant then said that his ex-wife didn’t really work because she was only working part-time. He then said that she only sought work when she needed money to buy alcohol and that she worked as a [occupation]. The Tribunal then reminded the applicant that he had just told the Tribunal that he did not know what his ex-wife’s occupation was. The applicant said he thought she was doing a [job] and he was unsure.

29. The Tribunal asked the applicant again why the couple separated and the applicant confirmed that the reason the couple separated was because his ex-wife was smoking and drinking. The Tribunal pointed out that in the statement he made with his application he had indicated that the reason that the couple separated was because she was abusive, violent and always threatening. The Tribunal indicated that the applicant’s various inconsistent reasons for separating from his ex-wife may indicate to the Tribunal that the applicant was being untruthful in relation to his claims.

30. The applicant claimed that when his ex-wife left him he was not well and was anxious and that could be the reason for the inconsistent answers. The Tribunal pointed out that the problem with this explanation was that while the applicant and his ex-wife separated in 2009, the statement was written in December 2014 and his interview with the Department was in April 2015 so any anxiety he felt during 2009 did not explain inconsistent answers given in December 2014, April 2015 and at the hearing in October 2015. The Tribunal asked again whether the applicant wished to explain the inconsistency in the reasons he had given for his separation from his ex-wife and noted that his separation and divorce from his ex-wife appeared to be central to his claims for protection. The applicant declined to comment.

31. The applicant claimed that his ex-wife left him in December 2009. He said that he had never spoken with her face-to-face after she left. At first he said that they had spoken on the phone every year since the separation. However, he then said that he had only spoken to her twice since the separation, once in December 2010 and once at the end of 2011 after he had filed for divorce. The applicant said that in 2010 the conversation was short and involved him trying to reconcile with her, asking her why she had started drinking and smoking.

32. The applicant said that his ex-wife called him again at the end of 2011. The applicant claimed that the divorce papers had been served on her family in India and she called him once her family had informed her that they have been served with divorce papers.

1. The applicant claimed his ex-wife was very angry when she called and asked him why he was divorcing her. The applicant claimed that he told his ex-wife that he was divorcing her because she had left him and they were no longer together. The Tribunal asked the applicant whether his ex-wife had threatened him and he said that she had. The applicant said that she had said words to the effect “It is very easy for us to do anything with you”. The Tribunal asked the applicant to tell the Tribunal what, specifically, his ex-wife had said. The applicant then claimed that his ex-wife said “My parents are in the power so your life can be over or can be worse”.

2. The applicant claimed that his ex-wife’s family wanted revenge for the applicant divorcing his ex-wife. The Tribunal asked how the applicant knew this and he said that he thought his dad had said his ex-wife’s family had called him once. He said his father told him that his ex-wife’s parents called his father after his ex-wife called him at the end of 2011. He said that his father said “They are very angry and can do something worse for our family.” The Tribunal asked the applicant to repeat what he had said and he claimed that his father had said “it can be worse with you when you come back”.

3. The applicant claimed that his ex-wife’s father had previously served in the army and his ex-wife had other family members who were officers in the police and the military.

4. The applicant claimed that he finished a [course] in [certain studies] in 2009 and had not studied or worked since. The Tribunal asked him what he had been doing since 2009 and he said that he had been staying at home. The Tribunal indicated that it was difficult to believe that the applicant had never worked in Australia. The applicant said that he had AUD$[amount] in his account when he came to Australia. He then said that it was not in his account but rather he brought $[amount] in cash from India. The Tribunal asked whether the applicant had declared the cash when he entered Australia and he said that he had not. When asked where the applicant had obtained the $[amount], he said that he had taken out a loan. He then said that this was incorrect and said that his [relative] in [country] gave him the money. He said that he had survived the whole time on that $[amount] alone. The applicant then said that his parents had sent him another $[amount] in 2015. He then said that his parents had sent him $[amount] in 2013 or 2014 but he could not remember which year. The applicant indicated that he was currently paying $[amount] in rent for the house that he currently resided in with his new wife. He said that he met his wife in November 2014 and married her in May 2015. The Tribunal notes that in the Minister’s delegate’s decision, the applicant stated during the interview [in] April 2015, the month before he was married, that he was not in a relationship. The Tribunal indicated that it was very hard to believe that the applicant had survived in Australia on $[amount] or $[another amount] for over 5 years. The applicant said he had been living a difficult life in Australia.

5. The Tribunal pointed out that in his statement he had said that before the divorce papers were filed, a stranger had called and threatened him and asked why he hadn’t mentioned this during the hearing. The applicant said he had forgotten and only remembered when the Tribunal had raised it.

6. The applicant said that either one or two strangers called him on a number of occasions. He then claimed only one stranger had called him once after the divorce and that this occurred after his ex-wife had called him at the end of 2011. The applicant claimed that the stranger asked why he wanted a divorce and swore at him. He said that he swore back at the person. He then said that when the stranger had asked why he wanted a divorce he told the stranger that he just wanted a divorce. The applicant confirmed that the stranger had not threatened him. The Tribunal then pointed out that in his statement the applicant had stated “before the divorce application was filed, I was contacted by a man who threatened me that if I proceed to divorce her, I will be in serious trouble. I received many other similar calls which I believe that those call were made on her behalf. “

7. The applicant then said that when the stranger called he said that he was calling on behalf of the applicant’s ex-wife. He said that the stranger had not threatened him and that it was not true that the stranger said that if he proceeded with the divorce he would be in serious trouble. The applicant said that it wasn’t true that he was called by the stranger a number of times, that he may have called once or twice but he couldn’t remember.

8. The Tribunal indicated that the inconsistencies in the applicant’s evidence may cause the Tribunal to find that the applicant was fabricating his claims. The applicant said that the last five years had been messy for him and that he had been anxious.

9. The Tribunal indicated that even if it were to accept the applicant’s evidence of the two conversations that he said he had with his father and his ex-wife it may be difficult to find that the applicant would face a real chance of suffering serious harm if he returned. The Tribunal indicated that according to his claims nobody had told the applicant that there was any problem in India since 2011. The applicant said that his parents did not tell him that there was any problem in India because they cared for him and were concerned that he would be negatively affected if they gave him bad news. The applicant then said that his parents did tell him not to return to India but did not tell him why.

10. The Tribunal put to the applicant that it had no information that indicated that men in India who had been divorced were persecuted for having divorced. The applicant indicated that this information was incorrect and that he seen a video where a man in his position had been killed in India. He said that a woman who had been divorced would find it difficult to remarry, that she would have to live with her family and that her family may get angry and act violently.

11. The Tribunal asked the applicant whether he could relocate on return to India to avoid harm. At first the applicant said that he could not afford to live away from home in India. He then said that it would be better if he could live in his home town. The applicant then said that if he relocated, he would eventually be harmed once his ex-wife’s family found him.

12. The Tribunal said that it was difficult to accept that the applicant could not return to India in circumstances where no one had told him it was dangerous for him in India since 2011 and he had not even asked his family whether it was safe to return. He then said that his father had told him not to call his ex-wife’s family as they would get angry with him. The Tribunal indicated that the applicant was claiming that his ex-wife’s family were already angry with him and that it did not seem to make sense not to try and placate his ex-wife’s family or to ask his family whether it was safe to return. The applicant said that he knew his ex-wife’s family and knew they would still be angry with him.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

15. The Tribunal finds the applicant is a national of India. He provided a copy of the identity information pages of his Indian passport to the Department. The applicant made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against India for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the village in which he last lived to be his home region. As the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious or significant harm, if he returned to India, it is unnecessary to determine whether the applicant has a right to enter and reside in Nepal under the India-Nepal Treaty of Peace and Friendship.

16. The Tribunal notes that in his statement and in the court documents the applicant provided relating to his divorce his marriage date is recorded as [in] January 2007 whereas at the hearing the applicant said that he was married in April 2007. The Tribunal also notes that the Minister’s delegate indicated that that it was unusual that the applicant did not appear to be sure of his ex-wife’s religion or caste and did not know her level of education. Similarly at the hearing before the Tribunal the applicant said he did not know what his ex-wife’s occupation was. This evidence may raise questions about the level of familiarity between the applicant and his ex-wife and the level of contact they had before arriving in Australia. However, the Tribunal is willing to accept that the applicant married his ex-wife at some point in 2007.

17. Because of the various inconsistent reasons provided by the applicant for the couple’s separation, the Tribunal does not accept his explanations as to why the couple separated. The applicant’s explanations were thoroughly unconvincing. Indeed, much of the evidence given by the applicant during the hearing was vague, inconsistent, implausible and unconvincing. Much of the time the applicant appeared to be creating a false story as questions were asked of him. For example when he was asked how he had supported himself in Australia since arriving in 2009 he said that he had $[amount] in a bank account when he arrived in Australia, then changed this to say he travelled to Australia with $[similar amount] in cash which he kept in his room at a share house. When asked where the money came from he said he took out a loan in Indian and then changed this to say his [relative] in [country] gave him the money.  He said that he had survived the whole time in Australia on that $[amount] alone. The applicant then said that his parents had sent him another $[similar amount] in 2015. He then said that his parents had sent him $[a separate amount] in 2013 or 2014 but he could not remember which year.

18. Notwithstanding the concerns the Tribunal has with the applicant’s evidence generally, the Tribunal relies on the court documentation provided by the applicant and accepts that the applicant and his ex-wife were divorced in 2011. However, the Tribunal does not accept that the applicant has ever been threatened for divorcing his ex-wife or for any other reason relating to his ex-wife. The applicant’s evidence about threats he received was inconsistent and implausible and is not accepted.

19. At the hearing the applicant claimed he separated from his ex-wife because she began drinking and smoking. He claimed that he received a threat only once from his ex-wife. This was said to have occurred at the end of 2011, after he had served her with divorce papers. He said that he had served the papers on his ex-wife’s family in India and once they informed his ex-wife she called him and threatened him saying words to the effect “It is very easy for us to do anything with you”. The Tribunal asked the applicant to tell the Tribunal what, specifically, his ex-wife had said. The applicant then claimed that his ex-wife said “My parents are in the power so your life can be over or can be worse”.

20. The applicant said that after he was called by his ex-wife his father was called by his ex-wife’s family. He said that his father said “They are very angry and can do something worse for our family.” The Tribunal asked the applicant to repeat what he had said and he claimed that his father had said “it can be worse with you when you come back”.

21. In his statement to the Department the applicant said that he had separated from his ex-wife as she was abusive, violent and always threatening. He said that soon after coming to Australia she started threatening the applicant telling him that as soon as he went back to India her family would “teach me a lesson.” The applicant repeated this claim in answer to a question in his application form. These claims are inconsistent with those made at the hearing. The Tribunal notes that they are also inconsistent with the reason given by the applicant to the Department at the interview for his separation from his ex-wife, namely that she was lazy and refused to work.

22. In his statement, the applicant had stated that he spoke to his parents about his ex-wife’s conduct and they in turn spoke to his ex-wife’s parents. The applicant had claimed that this angered his ex-wife who threatened “the day I go back to India I ”will be finished””. The applicant had claimed in his statement that his ex-wife’s parents and “others” had threatened his parents. He stated that “they wanted to know my address in Australia and when I was coming to India.” These claims are all inconsistent with the claims made at the hearing.

23. In his statement the applicant claimed that his ex-wife’s family “made a threat that when I come to India, I won’t go back to Australia alive.” Again, no such threat was mentioned at the hearing.

24. The applicant also claimed in his statement that before the divorce application was filed he was contacted “by a man who threatened me that if I proceed to divorce her, I will be in serious trouble” and that he “received many other similar calls which I believe that those calls were made on her behalf.” At the hearing the applicant did not mention this claim until he was reminded of it by the Tribunal. The applicant then said that either one or two strangers called him on a number of occasions. He then claimed only one stranger had called him once after he had filed the divorce papers. The applicant claimed that the stranger had not threatened him and that it was not true that the stranger said that if he proceeded with the divorce he would be in serious trouble. He said that the stranger had not called a number of times but that he may have called once or twice but he couldn’t remember. Due to the inconsistencies in the applicant’s evidence that Tribunal does not accept that he was ever called by a stranger, or strangers in relation to his divorce.

25. In his statement the applicant claimed that his parents were angry with him because they believed that he was responsible. Again, at the hearing the applicant did not say that his parents were angry with him. In fact, the applicant said that he has kept in contact with his parents, that his parents love him and were supportive of him and would not tell him about any problems they encountered in India because they did not want to upset the applicant. The applicant said that his father had placed an “ad” in the local newspaper which he said stated:

    “I am [name] son of [name], [district]. Declare that my son [the applicant] and daughter in law [name]. I have no any officially relation with them because they don't listen to me. Who lives in Australia so if any one give them money he will be responsible on his own risk .

26. The applicant provided an untranslated page from what appears to be an Indian newspaper with a certain portion highlighted. The applicant asserted that the applicant’s father must have placed the ad so that his ex-wife’s parents “will leave my parents alone and not bother them or threaten them.” Given the concerns that the Tribunal has with the applicant’s credibility, the Tribunal is not prepared to accept that the untranslated document reads as the applicant has asserted. What brings further doubt to the applicant’s claimed translation is that the name [name] appears at the end of the highlighted Punjabi text, whereas the translation of the text itself provided by the applicant in his statement claims that his father’s name is [another name]. The Tribunal further notes that the date of the newspaper is [in] June 2011 which is well before the applicant claimed that his ex-wife and her parents were notified of the divorce in late 2011. The Tribunal does not accept that the applicant’s father placed an ad in a newspaper as claimed by the applicant. The Tribunal notes that even if the Tribunal accepted that he had and accepted the translation that the applicant had provided, the ad simply indicated that the applicant’s father was not responsible for any debts incurred by the applicant and his ex-wife as they did not listen to him.

27. The Tribunal notes that many other aspects of the applicant’s claims are implausible. For example, the Tribunal considers it implausible that the applicant would never ask his parents for details of what his ex-wife’s family had said and that no details were proffered by his family. The Tribunal finds it implausible that the issue was discussed very briefly once with his father in 2011 and that despite the applicant keeping in touch with his parents, they have never spoken about whether it is safe to return to India and whether any threat remains from his ex-wife’s family.

28. Having rejected the applicant’s claims to have ever been threatened for divorcing his ex-wife, either by his ex-wife, her family or by anyone else, the Tribunal also does not accept that the applicant would face a real chance or serious harm or a real risk of significant harm from his ex-wife’s family or from anyone else on account of divorcing his ex-wife or being a divorced man in India generally, or in the Punjab in particular. The Tribunal accepts the applicant’s claim that divorced women in India can find it difficult to remarry and there is can be social stigma attached to being divorced. However independent information indicates that the divorce rate has risen in India and that divorce and remarriage have slowly been gaining acceptability (see, for instance, Robinson, S 2007, ‘Divorce and Remarriage – Indian-Style’, Time, 5 July 2007, Mahmood, S & S Sengupta 2008, “As Mores Evolve, India’s Divorced Seek Second Chance”, The New York Times, 14 February 2008, . As the Tribunal put to the applicant, the Tribunal has found no information which suggests that Indian men are persecuted for being divorced.

    Conclusions

29. After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively. For the reasons mentioned above, the Tribunal finds that there is no real chance that the applicant would suffer serious harm if he returned to India. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to India. Therefore, the applicant does not satisfy the requirements of s.36(2)(a).

1. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.  

2. For the reasons set out above, the Tribunal is not satisfied, on the evidence before it, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant does not meet the requirements of s.36(2)(aa).

3. 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

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

   Tigiilagi Eteuati

   Member