1506994 (Refugee)

1506994 (Refugee) [2015] AATA 3684 (19 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1506994
COUNTRY OF REFERENCE:                  India
MEMBER:Rachel Westaway
DATE:19 November 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 19 November 2015 at 4:07pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of India, applied for the visas [in] October 2014 and the delegate refused to grant the visas [in] May 2015.
The applicants appeared before the Tribunal on 27 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [the] brother of the primary applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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 into account policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent child.
Country of Reference
The Tribunal accepts on the evidence before it, namely copies of the applicants passports, that the applicants are nationals of India and it has assessed their claims against India as their Country of Nationality for the purposes of the Convention and as their returning country for the purposes of s.36(2)(aa).
CONSIDERATION OF CLAIMS AND EVIDENCE
The primary applicant arrived in Australia [in] October 2007 as the holder of a subclass 573 higher education visa. It was valid until [date] December 2009.
[In] December 2009 he lodged a subclass 572 visa which was approved [in] December 2011 and valid until [date] May 2012. He applied for an extension and it was granted until [date] February 2014.
[In] February 2014 the applicant became illegal.
[In] February 2013 the applicant’s wife came to Australia. She is the secondary applicant on the application that is the subject of this review. Her visa was valid until [date] July 2014. She did not enrol in a course and the last course noted for enrolment was dated [in] March 2013.
[In] 2014 the applicant’s daughter was born and a BVA granted. She is also a secondary applicant on the visa that is the subject of this review.
[In] July the applicant’s wife applied for a subclass 572 which was refused [in] September 2014.
[In] October 2014 they lodged a protection visa, the subject of this review.
The following claims were made to the Department in the initial visa application:
·     The primary applicant and his wife met on a social networking site in March 2010.
·     His parents were not happy because her family could not afford a suitable dowry.
·     They managed to convince the parents and were married [in] December 2010.
·     A large dowry was requested otherwise they would destroy the marriage
·     The applicant’s wife started to advise her husband his family were still demanding money.
·     They returned to India to settle the matter and the applicant’s wife was slapped by her mother in law and threatened to be killed. She tried to throw her out of the house and accused her of robbery.
·     When the wife came to Australia and gave birth to a girl and her mother-in-law was unhappy and wanted a boy.
·     The mother wanted the applicant to divorce the wife and have her killed. He claims this is why he has not returned to India
·     The authorities will not protect his wife as his parents are rich and will bribe the police.
On 27 October 2015, the applicants attended a hearing at the Administrative Appeals Tribunal. The following evidence was taken.
The primary applicant stated he is [age] years old. He is a Sikh.
Both of his parents are Sikhs.
He claimed his wife is also from a Sikh family.
He stated that they are both from the same caste which is [name].
The applicant confirmed he came to Australia to study.
The applicant was born in [a location] in northern India
The applicant’s wife was born in [another location].
The applicant has only lived in the village he was born in and Australia.
He confirmed his wife has lived all of her life in the one place as well.
Their two villages in India are very close - approximately [number]-[number] kilometres apart.
He confirmed that his marriage to his wife was partially arranged and partially love. He stated that they met on an internet dating site and after they convinced their parents to accept the relationship, his parents arranged everything regarding the wedding.
The applicant stated his mother is [age] years old and his father is [age] years old.
He also has a [brother] who lives in India with his parents. His brother was born in [year]. He runs his own business it is a [certain] company.
The applicant’s parents are [occupation]. They specialise in [details deleted].
His father-in-laws was [occupation]. About a year ago he stopped and is now doing [another job]. He specialises in [details deleted]. He has a small amount of land.
The applicant’s father has [number] acres.
Both mothers are house wives.
He stated his grandfather is still alive – he used to work in [industry] but he lives with the applicant’s uncle now.
The applicant’s village has a population of approximately [number].
The applicant’s brother-in-law and friends support the applicants when in Australia.
He claims his father supported him and the applicant worked part time when he was studying.
The applicant has only spoken with his brother 4-5 years ago. They do not get along.
The applicant spoke with his grandfather 6 months ago and then two years ago.
He was trying to go home and convince them to accept his marriage so he speaks to them every 1-2 weeks by telephone.
They have never come to Australia to visit and there have been no visits from his wife’s family.
They have no mutual friends in India but the applicants brother in-law lives with them in Australia.
The applicant confirmed he has travelled to India 4 times 2009, 2010, 2011 and 2012.
He was married in 2010 in India and in 2011 he went back again for 3 weeks because his wife was living with his parents and she called her husband because she was not happy. She said they were asking for money. The applicant stated that he doesn’t believe in taking money and dowries but his parents do.
The applicant stated he did not want his in-laws to give money for a dowry so they didn’t.
[The second applicant] lived with her in-laws for 1 year from the time they were married [in] December 2010. He claims that after 6 months he returned because his wife wasn’t happy. She moved back to her parents later that year. She would go to her parents for a week or 10 days.
He said that you could tell everything was different she was sad when she was living at his family’s home in India.
The applicant stated that his parents told him nothing was wrong.
He claims that his parents were harassing his wife and asking for money. The applicant stated that he didn’t know why they wouldn’t tell him but still asked her for money. He said that they just targeted her. When he approached his parents they said his wife was making up stories.
He confirmed that his parents in-law are not rich so can’t afford a dowry. He said they don’t have enough to survive. He said he was not sure how much his parents wanted. His in-laws live in basic conditions.
The Tribunal asked how they can afford to send his brother-in-law, sister in-law and wife on a student visa overseas. He said it was priorities; they have to afford other things as well.
The applicant’s brother is also married and he too married someone from the same caste. He said that his parents received a dowry from her family. He knew this because after the wedding they bought a new car and bought luxury items.
The applicant confirmed that he doesn’t speak with his brother very often and they don’t really like each other.
He stated his wife is ok with his brother.
The Tribunal asked the applicant why he doesn’t know exactly how much his mother has asked for or wants. He stated that he has not asked her. She hides things from him and made up stories about his wife. The applicant’s parents deny that they have said anything to the applicant’s wife.
The Tribunal put to the applicant that it seems implausible that his mother would not say how much of a dowry she wants or deny that she wants money yet she threatens the applicant’s wife with death. The applicant stated that she denies she wants money in front of family to avoid looking bad.
The Tribunal asked the applicant to explain why they accepted the marriage but then she changed her mind after a few weeks. He stated that it is human nature and he can’t explain.
The Tribunal put to the applicant that it is implausible that his mother would agree to their marriage then changed her mind almost immediately and encourage them to divorce with the threat of violence and death. It is not a logical sequence. The applicant did not comment.
He stated that in 2012 she moved back to live with her family. He said that these issues happened behind closed doors.
He said it all started when the applicant’s brother was married. He was there in July 2011 and the following December. He said when he asked they did not want to tell him anything.
The applicant confirmed he has not spoken to his father about this as the father agrees with his mother. He said that his mother said to him over the phone that if he agrees, he can get a divorce and she will arrange something else. However he has no idea what she was thinking. He doesn’t want to divorce his wife.
When asked if his parents celebrated the birth of his first child, he confirmed that his parents did not send anything but his in-laws sent clothes.
He said that his mother spoke to his wife.
The applicant stated that his mother never said to him that she would kill his wife she just said this to his wife.
The applicant stated he felt something like his partner was in trouble.
He said that at first he refused to divorce his wife so then his mother would threaten to kill his wife. He said that the problems began to get worse when his brother was getting married.
The applicant confirmed that his wife said her mother-in-law was bad so she moved home and the applicant arranged a visa for her to come to Australia.
The Tribunal asked why she didn’t apply for protection immediately. The applicant stated that his wife wanted to return to India to see her parents and she wouldn’t be able to if she applied for protection immediately.
The applicant stated that his wife doesn’t feel she can go back. However the Tribunal put to the applicant that his wife actually went to her parents and felt safe.
The applicant confirmed and said that you can escape when you are not living with the person you are being threatened by. He said his wife was safe in her own village. He stated that it was small and nothing could happen to her because the neighbours would know. Everyone knows everyone.
The applicant stated he could not return though as he could not provide any financial help. He stated that this is the issue – even if they were to go home this would be a problem.
The applicant claims he is not allowed to live with his in-laws. The Tribunal stated that you can live with them – there is no law preventing this. He said he would be seen from a different perspective if he lived with them. The applicant stated he would need time to get a job and establish himself. He said it won’t happen overnight he needs to find a job and it is very hard to survive. He claimed that in Australia his brother in-law and friends support him. They wouldn’t support him in India and they won’t send him money.

The applicant was unable to explain on what grounds he believes his mother would actually kill his wife or child. He claims he would receive no protection from police as they are all corrupt. He claims it just takes A$100 - A$200 to bribe them and his family have money to bribe them.
The Tribunal then took evidence from the secondary applicant. She stated that she is [age] years old and she came to Australia to study but she discontinued when she was pregnant. She stated that she is from a village called [name] in India and it is approximately 10 minutes distance from husband’s family. She confirmed that the two families did not know each other prior to the marriage and that they met through the internet.
The secondary applicant stated that the issues have arisen because her husband’s family are angry because they were greedy and they thought they would receive more money from the dowry. She stated that her parents gave some dowry but her in-laws were not happy. She confirmed it was around 3 Lakhs.
The Tribunal asked how much do they want and she stated that whatever is demanded should be paid. They want household goods, furniture and money but mainly money.
She said her mother in law tortured the applicant. The Tribunal asked her what she meant by this. The applicant stated that she threatened to kick her out of the home unless she received money. She stayed with her own parents for 24 days. She claimed that her father took a loan out for 3 lakhs and her husband knew this.
When she returned back to their home they continued to demand money.
He stated that on one occasion when her mother-in-law was complaining that the applicant had not sent her money from Australia she threw hot water on her and she has bruises on her leg from this. The Tribunal asked if she reported this incident and she said no.
She claims not to have been harmed in any other way but they threatened her and she did house work and worked on their farm.
She confirmed her brother in law lived in the same house and started work at 7pm and returned at 9pm. They were not on talking terms because he was rude to her.
The secondary applicant stated that although they accepted the marriage, they started to turn on the applicant before the marriage. Her mother in law called her parents and asked for money. It was close to the time of the marriage and it is shameful to break the marriage. She claims her mother in law started to ask the applicant to get up at 4am and work.
She confirmed after a year her brother in law was also married. His wife lived in the house too. Her behaviour is totally different. They were always comparing the two daughters in laws but the other daughter in law was allowed to sleep until 8am and did not have the same expectations on her. She was treated differently. Her brother in law stated that she was to be protected because her family was rich.
The applicant said that her mother-in-law stated that she wouldn’t allow her to go abroad and she was not allowed to go outside. She confirmed her parents funded her trip to Australia. She also confirmed that her family is not as financially secure as her in-laws.
She stated that her mother in law said she will kill her many times because they wanted a daughter-in-law who is rich. She stated to the applicant that she will not know how she will come to be killed. The applicant informed her husband and he said he will bring her to Australia.
When asked why she cannot get police protection, she stated that police can be bribed so they won’t listen.

100. The applicant said she is alive because of her parents. They helped her and they got documents and arranged for her to be sent to Australia.
101. The Tribunal asked the applicant how she protected herself when waiting for her visa. She said that sometimes she lived with her parents and did IELTS. Her in-laws did not come to her parents to hurt her. They called her and said they will send divorce papers to her if she does not return. They did not threaten or do or say anything else.
102. The applicant confirmed her husband has not returned to India
103. She confirmed she speaks with her parents nearly every day. Her parents are planning to come to Australia to visit her.
104. She also confirmed that her in-laws have not threatened her parents but they do not have good relations.
105. The secondary applicant confirmed she has no contact with her in-laws since she has been in Australia. She has tried to patch up the problems but they yell at her over the phone. She offered to send money to them however she confirmed they have never sent money to them.
106. She also said that she called them when she was pregnant and they were not happy with the fact that she had a daughter. They suggested she have an abortion if it was a girl. They gave them no gifts. She stated that they would kill her and her daughter. Her mother-in-law threatened if they return back she wants the couple to divorce. She claims that her in-laws agreed to the wedding because of the money. Now there is no more money and her mother-in-law is not happy.
107. She stated her father is [occupation] and they don’t have money. The Tribunal put to the applicants that they had money to send two children overseas. She claims that her father took a loan – 6 lakhs and another loan for her brother which they are trying to repay.
108. The Tribunal asked how much money would make her happy, given she was happy with the other daughter in law. The applicant claimed that is because that brother is the favourite child of hers.
109. The applicant stated she is worried about her child. She confirmed she didn’t apply for a protection visa straight away. They were on student visas and she was thinking they would get jobs and another visa but the visa was rejected and she didn’t have any information.
110. It seems implausible that a family can approve of a marriage and then so shortly after try and persuade their son to divorce his wife and threaten to kill her. It is implausible given they approved of the marriage and the claimed change of heart happened so quickly. The applicant stated that it was clearly a “change of mind and it is hard to predict human nature and people react differently”.
111. The Tribunal put to the applicant’s that the primary applicant confirmed that he speaks with his family every week or two weeks. Such regularity of contact between applicant and his family does not suggest he has a fear of the people he claims may want to kill his family. The secondary applicant stated that they are in contact because the applicant’s family have given all of their land to the other son and they are worried that should they return to India they will have no land and nowhere to live.
112. The Tribunal also noted that given the serious nature of the claims and the fact that they revolve around a dowry, it seems implausible that the primary applicant did not know that his wife’s family gave a dowry of 3 lakhs. The applicant stated that he simply wasn’t aware. His wife stated that her father-in-law and a middle man agreed on nothing but mother-in-law wanted it. The mother-in-law said not to disclose this to anyone. The Tribunal put to the secondary applicant that it does not appear logical that she is prepared to tell her husband that his mother is threatening her life but did not disclose the dowry.
113. The Tribunal put to the secondary applicant that she has told the Tribunal that she had free and regular movement between the two homes hers and her in-laws. This seems to suggest that she was not restricted in her movements and felt safe enough to leave her in-laws. The secondary applicant stated that she was allowed but she must finish all jobs. She stated that her mother-in-law was worried what she would tell people if she didn’t allow her daughter in-law to return.
114. The applicants were invited to comment on why they can’t substantiate how much money the mother-in-law wants, given the claimed threats are about providing more money than has previously been provided. They claim that she is two faced and they simply cannot explain what she wants. They said that she would tell her son and daughter in-law two different things.
115. Relocation was discussed and the Tribunal put to the applicants that the population of India is over 1 billion and there is freedom of movement and you do not need to register your address. They could safely live in another part of India or with the secondary applicant’s parents where they have confirmed that the in-laws have never targeted and is safe because of the small village and the fact that everyone knows everyone else. The applicant stated that it is not socially acceptable to live with in-laws and that he cannot live in India because they have no money to survive there. He stated that it requires money and he has no money and cannot get a job and they have no property. He stated that no one will help him.
116. The Tribunal put to the applicants country information from the Department of Foreign Affairs and Trade 15 July 2015 which confirms that there is an established police force and judicial system and that although the Tribunal accepts that bribery does occur in India, serious crimes and events are taken seriously and there are processes in place such as registering a FIR and that police protection is available.
FINDINGS AND REASONS
117. The issue in this case is the credibility of the applicants’ claims. A further issue is then whether the applicant’s face a real chance of serious harm or a real risk of significant harm if they return to India. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
118. The Tribunal accepts that the applicants are citizens of India. The Tribunal accepts this on the basis of sighting the applicant’s passports.
119. The Tribunal accepts that the applicants are in a married relationship and have a daughter based on the evidence on the Department and Tribunal file.
120. The Tribunal accepts based on the consistent information provided by the applicants at hearing that they entered into a love marriage that was also approved of by their respective parents.
121. The Tribunal accepts that the primary applicant’s parents do not like the secondary applicant and that they would prefer a grandson rather than a granddaughter based on the consistent information provided at hearing.
122. The Tribunal does not accept that the applicant’s parents were not happy because his wife’s family could not afford a suitable dowry. This is not consistent with the applicant’s parents agreeing to the marriage initially or with the 3 lakh dowry which was apparently provided and accepted. Further, the fact that applicants’ evidence was contradictory – the primary applicant stated no dowry was provided and the secondary applicant stated that a 3 lakh dowry was provided leads the Tribunal to conclude that the claims regarding a suitable dowry are not credible.
123. Given the finding above, the Tribunal consequently does not accept that the applicant’s parents stated that if a large dowry was not provided they would destroy the marriage.
124. The Tribunal does not accept that the primary applicant’s mother wants to kill the secondary applicant and their child and that the applicant had her face slapped. The Tribunal finds these accounts lack credibility. The Tribunal can accept that the mother-in-law may have a preference for a grandson, based on DFAT country information report for India dated 15 July 2015 that there is an ongoing cultural preference for male children in India. However, the applicants were unable to provide a consistent account with detail as to why the applicant’s mother would accept the marriage initially and then completely change her mind to the degree that she wants to hurt and kill her daughter-in-law and granddaughter. Further, given that neither applicant was able to provide any detailed information on how much money she wants yet she is happy with her other daughter in-law because she received a large dowry does not seem plausible to the Tribunal. The Tribunal has also considered that the applicants stated the mother would not prevent her daughter-in-law from going to her parent’s home because she would worry what people might think, the Tribunal finds that she would also be worried about trying to murder her daughter-in-law for the same reasons.
125. The Tribunal does not accept that the secondary applicant was tortured or that she had hot water thrown at her and told that she was not allowed to travel abroad. This behaviour is not consistent with the secondary applicant being allowed to return back to her parent’s home to reside with them and the freedom of movement afforded to the secondary applicant as she moved between her parent’s home and her in-laws home as described by both applicants.
126. The Tribunal has given consideration to the fact that the primary applicant and secondary applicant confirmed that they were safe in their in-laws village and home but could not return for financial reasons, standard of living and because of the social stigma of living with in-laws. The Tribunal finds that these statements detract from the credibility of the applicants’ claims that they face a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm if they return to India because the Tribunal does not accept that financial reasons, a lower standard of living or the social stigma of living with in-laws meets the threshold of serious harm or significant harm.
CONCLUDING PARAGRAPHS
127. Based on the findings above, the Tribunal finds that the Applicants do not face a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm if they return to India.
128. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).
129. Having concluded that the applicants do 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 applicants are people in respect of whom Australia has protection obligations under s.36(2)(aa).
130. There is no suggestion that the applicants satisfy s.36(2) on the basis of being members of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION
131. The Tribunal affirms the decision not to grant the applicants a Protection visa.
Rachel Westaway
Member

[2015] AATA 3684

19 November 2015

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction