1508226 (Refugee)

[2016] AATA 4270

1508226 (Refugee) [2016] AATA 4270 (3 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508226

COUNTRY OF REFERENCE:                  India

MEMBER:Rachel Westaway

DATE:3 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 03 August 2016 at 8:13pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

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

3. The applicants appeared before the Tribunal on 30 November 2015 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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. 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’).

8. 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.

   Country of Reference

9. The Tribunal accepts on the evidence before it, namely a copy of the applicants passports on the department file, 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 his returning country for the purposes of s 36(2)(aa).

   Consideration of Claims and Evidence

10. The issue is whether the applicants’ claims are credible and if they 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. 

11. Applicant 1[who] claims to be born in India on [date], his wife, Applicant 2 [who] claims to be born on [date] and their [child], Applicant 3, [who] was born on [date] in Australia.

12. Applicant 2 and Applicant 3 have not made separate claims but are members of the same family unit as Applicant 1.

13. The applicant stated in his application that he came to Australia for a long life. He believes he is not safe if he returns to India.

14. He lodged a protection visa application [in] December 2014.

15. The applicant did not attend the Department interview to provide further information to support his claims. The delegate found the claims lacked detail and were vague and the applicant’s migration history contributed to the negative credibility finding. His student visa ceased [in] November 2011. He applied for a student visa but did not attend the course so no longer qualified for the visa. His protection application was lodged [in] December 2014. He had ceased his studies and his student visa had ceased, however, he had been in Australia since June 2008.

16. The applicants’ claims as detailed in their protection visa application as an attachment to Form C folio 37-40 of the Department file are as follows:

    ·     Applicant 1 claims he faces extreme danger to his life because of the Khap system in India. He stated that he fell in love with a girl with a similar surname. He claims that “it is forbidden to get married to someone from the same surname …. There are severe rules and punishments decided by the Khap system.

    ·     Their parents were “annoyed and thought it disrespectful to receive a marriage proposal from someone from the same caste as it was strictly forbidden under Khap rules”.

    ·     The applicant’s claim to have eloped against the wishes of both families.

    ·     Applicant one was threatened to be attacked by Applicant 2’s [Relative 1] and [Relatives 2]

    ·     He was attacked and badly injured with a constant need for hospitalisation for a few weeks

    ·     Applicant 1 was granted a student visa and they both came to Australia

    ·     They have had a child since being in Australia (Applicant 3)

    ·     Applicant 2’s [Relative 1] has refused to give them the heritage (sic) hereditary (?) property share

    ·     Applicant 1 claims he sent a power of attorney to his wife’s [family member] and the case was filed.

    ·     The applicant quoted the women’s Association AIDWA stating they accuse the Khap system of instigating violence or murder against couples.

    ·     The applicant claims to acknowledge that it is illegal in India but still ruins lives

17. The applicants attended a hearing at the Administrative Appeals Tribunal on 30 November 2015 to provide evidence in the review of their application.

    Oral Evidence of Applicant 1

18. The applicant was born in India in the north in Punjab. The applicant’s mother is alive but his father died in 1989.

19. The applicant confirmed that he filled in his own application and confirmed he understood the contents although he stated that someone else typed it.

20. The applicant has one [sibling]. [The sibling] lives [in] Ludhiana.

21. The applicant stated that his father was murdered. He worked in a factory and he was also [occupation]. He [sold products] and there was terrorism in Punjab. He was involved in a clash that was antigovernment. They arrested him and killed him. This occurred in 1984. The applicant claimed he opposed government policies.

22. His mother is a house wife. She has a [sibling]. She lives in Ludhiana.

23. Applicant 1’s father-in-law was [an] employee in [a workplace] and he died in 2006. The applicant claims it was an accident. The applicant’s mother in-law is still alive although she is not well. Her [child] in India looks after her however they live [number] kilometres away from each other so this care is shared by a [relative] as well.

24. He confirmed that no family from India have visited them in Australia.

25. The applicant stated that the Indian government is problematic. He stated that because of his father he worried that he will also be targeted. He stated that they target anyone. Even journalists are thrown in jail.

26. The applicant referred to recent issues in India and stated that someone burnt a holy book and now people are protesting against the government. He stated that the security situation is similar to that which India was living through in the 80s and 90s but with more threats.

27. The applicant stated that his wife’s [Relative 1] and [Relative 3] threaten the applicant.

28. The applicant confirmed he is a Jat Sikh from [(a village in the Indian state of Punjab)] and he and his wife have the same surname. He confirmed that he met his wife in 2007. She is also a Jat Sikh.

29. The applicant stated that he doesn’t believe in the caste system so after a couple of months into their relationship they decided to get married. The families didn’t know each other and her family and mother opposed it. Applicant 1 stated that his family are ok and they do not have an issue.

30. He claims the issue is with the khap system. The Tribunal notes that “Khap is an organization representing a clan or a group of related clans in northern India. Khaps are found mainly among the Jats of Western Uttar Pradesh and Haryana, although historically the term has been used among other communities as well”[1]. It is a political organization, composed of all the clans, communities, and castes in the region. The Khap panchayts frequently deliberate on social issues to attempt to combat social problems like female abortions, alcohol abuse, dowry, rape and to promote education. specially among girls.

    [1] retrieved 1 August 2016

31. The largest Khap in Haryana is the Satrol Khap, which allowed inter-caste marriage in 2014, providing the marriage is not within the same gotra, village, or neighboring villages.

32. They married [in] 2008.  They were married in Punjab. Applicant 1’s parents attended the wedding. The applicant confirmed he had a wedding ceremony but only Applicant 2’s mother and [sibling] and a few other relatives attended, not her entire family. He stated that approximately [number] people attended the wedding. After they were married they applied for a visa. His wife’s [Relative 1] said they will kill them because they married. Applicant 1 stated that his mother-in-law has been attacked by her father because she allowed the couple to go against the family wishes. She now lives with Applicant 2’s [sibling].

33. The applicant was asked to explain the FIR (First Information Report) which was provided to the Tribunal. He stated that it shows that it is over the land and rent dispute because she had previously received rent from land prior to their wedding and then they stopped paying her so she filed a case against in order to obtain the owed money. The Tribunal asked why it took two years to file the FIR. He stated she didn’t know the rules and lawyers told her to file the case. The Tribunal enquired whether she lived without any form of income for 2 years and he responded that she received a pension but it wasn’t enough.

34. Applicant 1 and 2 travelled to Australia together arriving first in [city]. He confirmed that his mother and [other relatives] saw them off at the airport. He also stated that Applicant 2’s [sibling], mother and [another relative] also saw them off at the airport.

35. Applicant 1 confirmed that members of his wife’s family were violent. They telephoned the applicant and were against him from the beginning of their relationship. They said she cannot make the decision to marry him and that it is a family decision. Applicant 1 stated that her [Relative 3] and [Relative 1] would call him on his mobile and stated that they cannot accept him because their surname was the same and they saw it as their right to arrange her marriage.

36. Applicant 1 stated he is fearful because if he returns to India they can do anything and no one can stop them. He claims that millions are in jail in India and now the law is not good.

37. The Tribunal put to Applicant 1 that if his mother-in-law appears to remain safe in spite of the claimed threats by [Relative 1], they too are likely not to face such threats or they could consider living with family too. Applicant 1 stated that he cannot live with his wife’s mother or [sibling].

38. The Tribunal put to the relevant country information to the applicant stating that  India is a secular society, forced marriage is not lawful, it is lawful to marry someone from another caste and that if Applicant 2’s [Relative 1] was not supportive of their marriage, they could live somewhere else like his mother-in-law.

39. He claimed that they attacked his mother in law so he believes they would not stop at attacking him if they were to return to India.

40. The Tribunal asked the applicant what happened to his mother-in-law and he said that two ladies held her arms and the [Relative 1] and [Relative 3] hit her neck with a stick. They stopped only when neighbours shouted and saw so they left. He said that the neighbours heard her shouting and crying. They live at the edge of the village and most of the houses have family members in them.

41. He stated that they hit her because of ‘us’ and they stopped giving her rent for land and so she went to court. The court found in her favour and she received her share.  She rented it to someone else. He confirmed that she lives in her sister’s house.

42. The Tribunal put to the applicant that if his mother-in-law was able to safely live there then why would it not be possible for him and his wife and child to also live there? Applicant 1 stated that he is the main target. He stated that Applicant 2’s [sibling’s partner] has ‘manpower’. They are rich people and are involved in political parties. The Tribunal stated that they could protect him and then he said “no they can’t protect anyone”. However the Tribunal put to the applicant that his mother in law has not been targeted again and she is ok.

43. The Tribunal asked the applicant about his father. He stated that his father was involved in khalistan and he was a freedom fighter. The Tribunal asked the applicant the name of the organisation or political party his father was involved in. He claimed that he doesn’t know the name of the political group, he surmised the Khalistan taskforce.  He said he could find out but he was little at that time so doesn’t know.

44. The applicant stated that when he was approximately [age] years of age [there] was a gathering of [number] million people who were demanding freedom of a man [who] was a journalist. The applicant stated that his father was the most active. His father was called [name].

45. The Tribunal expressed its concern about the applicant’s claims and their relevance given he could not recall the name of the political party his father was a member of and he was unable to provide any detail about the claimed events or draw any relevance to why he would be profiled and targeted. The Tribunal explained to the applicant that his fears must be well founded.

46. The applicant stated that he will need to call someone who is in Punjabi to get more details as the clash was in the news.

47. The Tribunal asked the applicant why he would be targeted in regards to his father’s political activities given he has been in Australia for 8 years and his father is no longer alive. The applicant stated that the government is filing cases and the police visit his family every year and they ask his mother where is your son (Applicant 1) and what is he doing. He doesn’t know what they want. They just visit his home. He stated that the government wants him and the demand for Khalistan is rising again.

48. Applicant 1 stated that his father has had [relatives] who have been killed. He said another [relative] is so unwell because has been so brutally beaten he can’t walk a step. They beat him in 1988 or 1991 but he claims he was little so he doesn’t know the details.

49. He has another [relative] living in [another country] in order to protect himself. He has never returned to India.

50. The applicant claimed he is so worried as the same families are being targeted again.

51. The applicant provided examples of people he was aware of that were arrested with no links to political parties.

52. They claim it is terrorism from extremist groups against India and one hundred cases have been filed last month.

    Oral Evidence of Applicant 2

53. Applicant 2 stated that she is [age] years of age. She was born in Punjab in India.

54. She explained that she came to Australia because of her marriage to her husband. She stated that her family did not approve because she had the same surname as her husband and she went against her [Relative 1]’s wishes and married her husband and her [Relative 1] started threatening her. She claimed that when she came to Australia they started threatening and torturing her mother because she filed a case in court against the [Relative 1] due to a rent and property dispute as they stopped paying rent to her mother. They said that they won’t give rent to her mother and will never agree to it.

55. She confirmed father died and she does not have a [certain sibling].

56. She said they are still hurting her mother but she went to live with Applicant 2’s [sibling] because when she was alone it became problematic. Applicant 2 stated that when she is with others she is fine.

57. Applicant 2 drew the attention of the Tribunal to a report about her mother’s injuries. She said they could do anything to her if she returned to India. The Tribunal put to the applicant that her mother has remained safe in India and has not been targeted since she has moved in with her [child], as such, the Tribunal asked the applicant why she too would not be safe given she could potentially move back with her husband and child and have the safety of her immediate family.

58. Applicant 2 stated she has a house in her village where she is supposed to live and she cannot consider relocation in India. She said they need income where they can survive.

59. She stated that she has fears and she worries about her child and herself.

60. The Tribunal asked if there was any other reason if they returned to India why she would be targeted. She stated she hasn’t been to India and everyone want to see her [child].  They can’t go anywhere. Tribunal again asked if there were any issues.

61. The Tribunal asked the applicant about her father-in-law, Applicant 1’s father. She said he was like a terrorist.   He wanted Khalistan rights. She claims he was fighting for people’s rights and he would protest. She confirmed her father-in-law died in a police protests. It was a long time ago when her husband was [age] years of age.

62. She claims his family are still involved in pro- Khalistan protests however they didn’t go back to India they are all overseas.

63. The applicant stated her husband suffered through his childhood and his mum faced many problems. He didn’t live at home because he was afraid of the police. He lived here and there. He lived at people’s homes that he knows. The Tribunal queried the applicant and asked if he was [age] years of age when he lived at different people’s homes because he had not stated this or made this claim to the Tribunal. She said he didn’t say this because it is sad. She said she can’t live in India and she has no grounds to live in Australia.

    Questions put to both applicants pertaining to the credibility of their claims

64. The Tribunal put to the applicant its concerns regarding the credibility of the applicants’ claims.

65. The Tribunal asked Applicant 1 why there was significant a delay lodging their protection visa application and why they were not on a valid visa. The Tribunal put to the applicants they would expect that someone who was fearful of their lives would apply quickly to seek safety.  Applicant 1 responded and said he went to a lawyer, gave him my documents and asked him to apply for the visa but he didn’t. As such he wasn’t aware that he hadn’t applied and the lawyer told him he had applied. It was too late then.

1. The Tribunal asked Applicant 1 why he never started his studies for his second visa.  He stated he had a mental illness which he referred to as a mental disturbance.  The Tribunal asked the applicant if he informed his education provider to request a leave of absence or Immigration and he said no. The Tribunal asked the applicant whether he sought assistance from a doctor or had any medical evidence to support the claim that he had suffered a mental illness and he said no.

2. The Tribunal put to the applicant its concerns about the applicant’s claims of a love marriage. There have been inconsistencies. For example, Applicant 2’s family did attend the wedding and support the relationship and accepted the marriage. Applicant 1 stated not all of them. The Tribunal stated that if Applicant 2’s family were so conservative and followed the Khap system and were against this marriage, it is unusual that most of her family would attend but not [a senior family member], namely her [Relative 1]. Especially as India is such a patriarchal country.

3. The Tribunal referred to the FIR supplied to show there is a property issue and that his wife’s mother has been attacked because of this issue. However the courts have ruled in favour of Applicant 2’s mother. As the Applicants have both confirmed, she is safe. The applicant stated that she is living in a village but they cannot because they must work and earn money so they cannot live with her. The Tribunal stated that Applicant 1 is educated and his English is excellent and he could find work in other cities. Country information was again put to Applicant 1 that there is freedom of movement in India and no requirement to register.

4. The Tribunal put to Applicant 1 and Applicant 2 that a love marriage is not illegal in India. The applicants were invited to comment. Applicant one stated “you expect me to live outside my state?” Applicant 1 stated he did not want to live in India and he has nowhere else to live. He stated he has no source of income in India. The Tribunal asked him why he could no live in a major city such as Delhi and find employment. The applicant replied that there are Hindu terrorists and they will not allow other castes to live there. The applicant responded that Delhi is very expensive. He stated that the main target is him and his wife. The mother in law has been safe. The applicant could not live in anyone’s home and he could not consider Delhi.

5. Applicant 2 stated that without a source of income she cannot survive. The Tribunal put to the applicant that they have managed to survive in Australia and her husband could find employment in India.

6. Applicant 1 also expressed his concerns about the weather in India and pollution and stated that he worried about his [child] in that environment because [the child] was born in Australia. Applicant one stated it is like smoking 8 cigarettes.

7. Applicant 1 was given the opportunity to comment on the Tribunal’s concerns that he did not appear to have a profile of an active pro Khalistan protestor. The Tribunal put independent country information to Applicant 1 stating that Operation Blue star was some time ago and the government continue to investigate those involved. The Tribunal asked the applicant why he would face serious or significant harm based on his father’s pro Khalistan background given it was a significant time ago. The applicant stated that his mother’s [relative] – (not real [relative] but a man from the village) was involved in pro Khalistan activities. He left his house because the government were targeting him. He left his wife with his [relatives] and police raided the house. It was 1992 and there was a [child] and they took custody of the [child] and mother and no one knows where they are now. They could be alive or dead. If a [child] can be involved and killed he thinks he could easily be targeted. The Tribunal noted that this was 1992, many years ago.

8. He stated he can provide evidence of his father and translation of newspapers. Tribunal stated happy to take into consideration everything on file and at hearing and anything else sent to the Tribunal. At the time of writing this decision the Applicants have not supplied any further information.

   INDEPENDENT COUNTRY INFORMATION

9. The Tribunal has had regard to the Department of Foreign Affairs and Trade Country Information report 15 July 2015, India. The following information has been sourced from this report and has been considered by the Tribunal.

   Security situation in India

10. “Because of its size and diversity, the security situation in India can vary significantly over time and from place to place. Civil unrest, including violent rioting, is common and persistent. The causes of violent unrest in India are many, and include: rivalries between different religious, social and ethnic communities, including between castes; rural insurgencies motivated by ideology; competition between India and Pakistan (particularly along the Line of Control); and tensions within communities over issues such as land ownership and marriage-related disputes. Many instances of civil unrest in India are the result of multiple causes.

11. The numbers of those killed in terrorist attacks in India have fluctuated from year to year. In 2014, the Institute for Economics and Peace’s Global Terrorism Index ranked India as the sixth worst country affected by terrorism worldwide. In addition to these insurgencies, India has experienced numerous recent terrorist attacks by Islamist militant groups, many of whom have been linked to Pakistan. For example, Lashkar-e-Taiba militants with Pakistani links attacked a number of targets in Mumbai during November 2008, killing 164 people.

12. Crime rates across India vary. Homicide rates in India are comparable with other South Asian countries (3.5 per 100,000 people). Violent crimes against women occur frequently. Notwithstanding the number of incidents mentioned in absolute terms the sheer size and diversity of India means most Indians live their lives with a relatively low risk of violence.

    Sikhism

13. Sikhism is a monotheistic religion founded in Punjab in the 15th century. According to the 2001 census (the latest figures available), the Sikh population of India was approximately 19 million, 1.9 per cent of the total population at that time. 75 per cent of the Sikh population live in Punjab, where they constitute almost 60 per cent of the population. Significant Sikh populations also reside in Haryana, Rajasthan, Uttar Pradesh, Delhi, Chandigarh, Jammu and Kashmir, and Himachal Pradesh.

    Khalistan

14. One of the points of difference among Sikh political parties is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. However, a number of other grievances persisted among the Sikh community and some pro-Khalistan groups and individuals continued to advocate armed struggle. During an internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984, the Indian Government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’.

15. The Golden Temple complex was bombarded by artillery, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.

16. In retaliation for Operation Blue Star, two of Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days that followed, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which there were credible allegations of torture, extrajudicial killings and deaths in custody carried out by security forces. These operations and the successful conduct of state elections in the 1990s and 2000s helped to diminish support for armed struggle and separatism.

17. A number of official inquiries were undertaken following the 1984 riots, and charges have been brought against those suspected of instigating and being involved in the anti-Sikh violence. Former Minister of State for Home Affairs Mullappally Ramachandran said in April 2013 that 3,163 persons had been arrested, 650 cases registered and 442 persons convicted for their roles in the riots. However, there are continuing claims that many of those responsible for the 1984 riots have not been brought to account, and Sikh groups continue to advocate for courts to retry previously dismissed cases. Prosecutions continue against several of the accused, including a former Congress Union Minister, Jagdish Tytler.

18. Overall, DFAT assesses that Sikhs in contemporary India have no heightened risk of official or societal discrimination beyond that experienced by the broader community.

    Marriage (inter-faith, inter-caste, arranged, child)

19. India is officially a secular and multi-ethnic country, and as such inter-faith and inter-caste marriages are legal. There is currently no centralised system for marriage registration in India. Some states have laws requiring all marriages to be registered in order to be deemed lawful. Couples may seek to marry under one of India’s personal religious laws which have been codified according to the requirements of different religions in India. The Special Marriage Act 1954 is an alternative to each of the various religious personal laws. The Act is available to all citizens who choose to marry outside their faith and the religion of the parties to an intended marriage is immaterial under the Act.

20. Arranged marriages continue to account for the overwhelming majority of marriages across India. Parents and/or significant family members are often solely responsible for making a decision about who children marry, particularly in north India. Many parents consider arranging a marriage for their children a right and duty, and may not accept modern marriage practice such as a son or daughter choosing their own spouse. There is enormous social pressure for women to marry by their mid-20s and men by their mid-30s. Although the divorce rate has increased in recent years, particularly among the affluent middle classes, India has one of the lowest divorce rates in the world at an estimated one in 1,000 marriages.

21. Caste is an enormously important factor in Indian society. While predominately associated with Hinduism, caste also applies to other religions in India. The caste system is a system of social stratification which separates 14 communities into hereditary groups. Four principal groups exist within the system’s hierarchy, consisting of thousands of subgroups.

22. There is also significant social pressure for individuals to marry within their own caste and/or religion. While statistics for inter-caste and inter-faith marriages can be variable, an India Human Development Survey conducted in November 2014 reported that just five per cent of Indian women had married a husband from a different caste, with inter-caste marriage being most common in Gujarat and Bihar (over 11 per cent) and rarest in Madhya Pradesh (less than one per cent).

23. In January 2014, the Supreme Court intervened after a woman in West Bengal was allegedly gang-raped on the orders of a village council as punishment for having a relationship with a man from a different caste. So-called “honour killings”, committed by the families and communities of those involved in inter-faith and inter-caste relationships, are particularly prevalent in villages and small towns in north India. It is estimated that at least 1,000 honour killings take place each year in India. Members of lower castes are vulnerable to violent reprisals if they are perceived to have entered relationships with members of higher castes.

    State Protection

24. In general, police in India have broad powers of arrest, including arrest without a warrant where they have a ‘reasonable suspicion’ of a connection to criminal offenses. To report a crime, citizens may lodge a First Information Report (FIR) at a police station. The Supreme Court has recognised the difficulty faced by some victims of crime in having an FIR registered, and has directed that the registration of FIRs should be mandatory for cognisable offences – those serious crimes for which police do not require a warrant to arrest a suspect.

25. According to a 2009 report by Human Rights Watch and other sources, the capacity of India’s police forces is limited by poor infrastructure, insufficient personnel, inadequate training, poor living conditions for low-ranking officers, insufficient remuneration and a lack of training and equipment to conduct their duties. India also has relatively few police officers per capita – 129 per 100,000 people, compared to a global average of 350. Only around five per cent of Indian police officers are female, while only six per cent of Indian police officers are Muslim (despite Muslims comprising 13.4 per cent of the population).

    FINDINGS AND REASONS

26. The Tribunal accepts on the basis of the information provided by the applicants at hearing and the evidence contained on the Department and Tribunal files that Applicants 1 and 2 are married and that Applicant 3 is their dependent child.

27. Applicant 1 has made claims that based on his love marriage to applicant 2 and his profile of being the son of a pro Khalistan supporter he faces a real chance of serious harm or a real risk of significant harm. Through the course of the hearing, applicant 2 also stated that she too was under threat for the same reasons and feared for her safety and that of her dependent child applicant 3. The Tribunal finds that the applicants’ claims are not credible or genuine for the following cumulative reasons.

28. The applicants’ migration history and explanations do not support the actions of people who have a genuine a fear for their safety. The explanations about a migration agent not lodging their application and applicant 1 having a mental illness were not supported with any detailed information. The Tribunal would expect that an Applicant who holds such grave fears for their safety would seek protection as soon as possible. The applicants took 6 and half years to apply for a protection visa. The Tribunal is of the view that it would be reasonable to supply evidence of payment for services associated with applying for a protection visa or emails of correspondence with the migration agent to support this explanation. The applicant’s explanation lacked the type of detail required to support his claim.

29. The Tribunal notes that the initial claims made by the applicant stated that they had eloped against family wishes. Eloping is to marry secretly and suddenly yet the applicants confirmed they had a wedding of approximately [number] people. They stated that Applicant 1s family attended and applicant 2’s mother and [sibling] and other relatives and friends, but not the [Relative 1] or [Relative 3]. Whilst the Tribunal accepts that the applicants are married, the Tribunal finds that the applicants’ claims are not consistent with their initial application and this adds to the Tribunals concerns regarding the genuineness of the applicants’ claims.

30. Applicant 1 and 2 were able to explain and elaborate on why the khap system was against their union other than they had the same surname. Nor did they provide any explanation as to why most of the family on both sides supported the marriage yet Applicant 2’s [Relative 1] and [Relatives 2] did not. The claims were vague and lacked details. Furthermore the applicants did not provide any evidence to indicate that their names were the same or similar. The Tribunal accepts that the Khap system can oppose marriages for many reasons but the applicants did not provide any clear or detailed information to support their claims in this regard.  The applicants are of the same caste and are Sikhs and Applicant 1’s family had no objection to the marriage and Applicant 2’s family also attended the wedding. It was only applicant 2’s [Relative 1] and [Relatives 2] who they claim did not accept the marriage but they were unable to identify or explain why he placed weight on the khap system yet the remainder of the family did not.

31. The claim lacks any logical explanation. The Tribunal does not accept that applicant 2’s [Relative 1] and [Relatives 2] were against the marriage and as such does not accept that Applicant 1, 2 or 3 would face any harm because of their marriage. Given the finding above, the Tribunal does not accept that marriage between applicant 1 and applicant 2 was a love marriage which went against the Khap system.

32. Given the credibility findings above, the Tribunal does not accept that Applicant 1 was threatened and attacked by Applicant 2’s [Relative 1] and [Relatives 2] and badly injured and hospitalised.

33. The Tribunal acknowledges a First Information Report provided by the applicant dated [in] December 2010 reporting an offence [in] December 2010 in which Applicant 2’s [Relative 1] attacked her mother with sticks. Applicant 1 and 2 claim this is because she had taken a property matter to court. The [Relative 1] had stopped paying her rent for the land because he was unhappy with the marriage between Applicant 1 and 2. As the Tribunal does not accept that the [Relative 1] or [Relatives 2] are against the marriage and because the FIR does not contain any details or mention of the reasons why Applicant 2s mother was hit the Tribunal does not accept that the mother was hit because of the applicants’ marriage. Therefore, the Tribunal does not accept that there is any greater risk of returning to India and the applicants being harmed by applicant 2s [Relative 1] or [Relatives 2].

34. The Tribunal does not accept that Applicant 2’s [Relative 1] would harm the applicants because he has previously harmed Applicant 2’s mother over a property dispute.

100.   The Tribunal accepts the existence of the FIR although has not had it tested for authenticity. The Tribunal is prepared to accept that Applicant 2’s mother was involved in a property dispute with her [Relative 1] on the basis of the FIR. The Tribunal notes that both applicant 1 and 2 confirmed that the [Relative 1] has not harmed Applicant 2’s mother again and as such, the Tribunal does not accept that the applicant’s would be harmed by the [Relative 1] or [Relatives 2] if they were to return to India based on the claimed family property dispute. The Tribunal has also considered the fact that the applicants’ confirmed that Applicant 2’s mother successfully filed a law suit [and] won and the [Relative 1] paid the outstanding rent. For the reasons above, the Tribunal does not accept that the [Relative 1] or [Relatives 2] would have any reason to target Applicant 1, 2 or 3 due to a family property dispute that is now settled. The Tribunal does not accept that Applicant 2s mother is safe only because she lives with family members.

101.   Applicant 1 was unable to explain with detail or clarity his own father’s involvement in the pro Khalistan movement yet believed he would be profiled as the son of his father and as such be targeted by extremists. The lack of detail and explanation by applicant 1 or 2 does not support such claims. He was never targeted when previously in India and made mention of [relatives] who were harmed but this occurred in the 1990s. The Tribunal notes that the applicant at hearing claims police continue to ask his mother about his whereabouts even when he is in Australia. A significant period of time has passed and no correlation to the applicant’s father and his political interests could be drawn. Furthermore, the Tribunal would have expected Applicant 1 to be able to name the political group his father was a member of, his involvement and details of his death. The applicant was unable to recall this detail. There is nothing before the Tribunal to support the claims that applicant 1s father was a pro khalistan supporter and that Applicant 1 would therefore be profiled and targeted. The Tribunal finds that these claims lack credibility.

102.   The Tribunal does not accept Applicant 2’s [Relative 1] refused to give them their property share and also notes that to withhold a property share would not amount to suffering serious or significant harm in this circumstance.

103.   The Tribunal does not accept that Applicant 3 will be harmed any more than any other person in India when exposed to pollution and in any event such exposure is non-discriminatory in its impact on citizens.

104.   The Tribunal has considered the applicants current migration history, the broad claims from a love marriage to, political profiling and exposure to pollution and notes the lack of detail and logic. The Tribunal finds these claims in their entirety are not credible and finds that the applicants do not face a real chance of persecution for any reason convention or non-convention related.

CONCLUDING PARAGRAPHS

105.   For the reasons given above, the Tribunal is not satisfied that the applicants are people 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).

106.   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). For the reasons above the Tribunal is not satisfied that the applicants are people in respect of whom Australia has protection obligations under s.36(2)(aa).

107.   There is no suggestion that the applicants satisfies 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 applicant does not satisfy the criterion in s.36(2).

108.   For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

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

Rachel Westaway
Member