1509126 (Refugee)

[2017] AATA 3023

1509126 (Refugee) [2017] AATA 3023 (13 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509126

COUNTRY OF REFERENCE:                  India

MEMBER:Jason Pennell

DATE:13 December 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant each of the applicants a protection visa.

Statement made 13 December 2017 at 3.08pm

CATCHWORDS
Refugee – Protection Visa – India – Particular social group – Intercaste marriage – Fear of persecution – Honour Killing – Real chance of significant harm – Relocation – Significant harm localised – Applicants able to relocate

LEGISLATION
Migration Act 1958, ss 5AAA, 36, 65, 91R, 91S, 91T, 424A, 499
Migration Regulations 1994, Schedule 2

CASES
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZRHU (2013) FCAFC 91
MIBP v SZSCA (2014) 254 CLR 317
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MZAAD v MIBP [2015] FCA 1031
MZYXS v MIAC [2013] FCA 614
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Subramanium v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZRTN v MIAC [2013] FCCA 583
SZRTN v MIBP (2013) 138 ALD 104
SZSHK v MIBP (2013) 138 ALD 26
SZSKC v MIBP [2014] FCCA 938
SZVVE v MIBP [2015] FCA 837
WZASD v MIBP [2013] FCCA 1940
Zhang v RRT & Anor [1997] FCA 423

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 [in] June 2015 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for a protection visa [in] August 2014. The delegate refused to grant the visa on the basis that she was not satisfied that the applicants were people to whom Australia has protection obligations as outlined in s. 36(a) or (aa) of the Migration Act 1958 (the Act) and are not members of the same family unit as a non- citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the application pursuant to s.36(2)(b) and (c) of the Act.

3. The applicants appeared before the Tribunal appeared 5 October 2017 to give evidence and present arguments. At the hearing [Ms A, the first applicant] and [Mr B, the second applicant] gave oral evidence in support of their claim. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicants also appeared before the Tribunal on 6 April 2017 and 24 April 2017 to give evidence and present arguments to Member Wysocka. The Tribunal has also taken into consideration the applicants’ evidence and arguments presented on these dates.

5. [Mr C, the third applicant] has no protection claim of his own and will be considered as a member of the same family unit under s.36 (2)(b) of the Migrations Act 1958 (‘the Act’)

6. The issue to be determined by the Tribunal is whether or not Australia owes protection obligations to the applicants. For the reasons set out below the Tribunal has affirmed the delegates decision.

Criteria for a protection visa

1. 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. [Ms A] and [Mr B] (‘the applicants’) made separate applications for a protection visa based on the same factual circumstances. Their son, [Mr C] made his application for a protection visa as a member of the same family unit as the applicants pursuant to s.36(2)(b) and (c) of the Act.

2. 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). Article 1A(2) of the Convention sets out a definition of who is a refugee.

3. 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[1] ('the complementary protection criterion').

   [1] s.36(2)(aa) of the Act

4. An applicant is considered not to be at a real risk of suffering significant harm in a country if:

   ·it is reasonable for the applicant to reallocate to different area of that country where there is no real risk that the applicant will suffer significant harm;[2] or

   [2] Migration Act 1958 s36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

   ·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[3]

   [3]   Migration Act 1958 36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.

Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF Claims and evidence

The claim

1. The applicants written claim[4] are that if she returns to India

   [4]   Department file [number].

   (a)[Ms A] will be killed by her father-in-law and [Mr B]’s brothers.

   (b)[Mr B] comes from a traditional Indian family which believes in arranged marriages and the marriage between [Ms A] and [Mr B] was not arranged by them.

   (c)[Mr B]’s parents never accepted the relationship between [Ms A] and [Mr B] due to the fact that she is from a lower Jatt caste.

   (d)[Ms A] has received death threats from her father-in- law brothers in law and members of the Sikh community as they do not support the marriage. 

2. At the hearing the applicants provided additional documentation to the Tribunal which included:

   (a)Affidavit of [Mr D] dated [in] January 2915.

   (b)Affidavit of [Mr E] dated [in] January 2015.

   (c)Affidavit of [Ms F] dated [in] November 2011.

   (d)Affidavit of [Ms F] dated [in] January 2015.

   (e)Statement by [Ms F] dated [in] November 2011.

   (f)Statement by [Mr G] dated [in] March 2017.

   (g)Statement of [Mr H] dated [in] March 2017.

   (h)Statement by [School 1] dated [in] April 2017.

   (i)[Marriage Certificate] dated [in] April 2009.

   (j)Passport of [Ms A] issued [in] 2007.

   (k)Passport of [Mr B] issued [in] 2007.

   (l)Passport of [Ms I] issued [in] 2010.

   (m)Birth Certificate of [Ms I] [date].

   (n)Various Diplomas’ issued by [a college] to [Ms A].

   (o)Various Photos and newspaper articles.

3. In making its decision the Tribunal has read and considered all the documentary evidence provided by the applicants.

4. On 14 November 2017 the Tribunal wrote to the applicants pursuant to s. 424A of the Act and invited them to respond to the fact that contrary to [Ms A] evidences that [Mr B]’s family objected to their marriage due to the fact that she was from a lower caste, [Mr B]’s evidence was that his family demanded a dowry at the time of their marriage [in] September 20108. The tOn 28 November 2017 the applicants provided the tribunal with a further submission in response to its letter dated 22 November 2017. The Tribunal has read and considered the applicants further submission for the purposes of making its decision.

5. The applicants are a family of Indian nationals, a father, mother and child who seek to be granted protection visas on the grounds that they are refugees or entitled to protection under Australia's complementary protection provisions. The nature of their claims related to the fact that [Mr B]’s family did not approve of their marriage because [Ms A] is from a lower Jatt caste within the Sikh faith and they had not chosen her as [Mr B]’s wife.

6. For the reasons that follow the Tribunal finds that it would be reasonable for the applicants to relocate within India to an area where they would not be at a real risk of harm. As such it does not accept that the applicants have a well-founded fear of persecution for a Convention reason, or that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India there is a real risk that they will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicants protection visas.

Time frames

1. The Tribunal finds that:

   (a)[Mr B] arrived in Australia [in] October 2008.

   (b)[Ms A] arrived in Australia [in] February 2009.

   (c)[In] June 2011 [Ms A] applied for a further stay on her student visa which was refused by the Department of Border Protection and Immigration control [in] August 2011.

   (e)On 1 September 2011 [Ms A] applied to the Migration Review Tribunal (MRT) for a review of the Departments decision. On 16 July 2013 the MRT affirmed the refusal.

   (f)[In] August 2013 [Ms A]’s bridging visa ceased.

   (g)[In] August 2013 [Ms A] applied for Ministerial Intervention, which was ‘not considered [in] August 2014.

   (h)[In] August 2014, the applicants applied for a protection visa.   

Country of Reference

1. The applicants claim to be citizens of India and provided a copy of their passports to the Department with their applications and produced them to the Tribunal. The Tribunal finds that the applicants are citizens of India and that India is the applicants receiving country for the purposes of the refugee and complementary protection assessment.

2. The applicants claim not to hold any other citizenship or have a current right to enter and reside in a third country. However, the 1950 Treaty of peace and friendship between India and Nepal gives Indian nationals the right to enter and reside in Nepal.[5]Statutory effective protection places an obligation on the applicant to take all possible steps to avail themselves of the right to lawfully enter and reside in a third country.[6] It is open to the Tribunal to make a finding that the applicants do not have a well-founded fear of persecution or real risk of significant harm if they were returned to India on the basis that they have statutory effective protection in Nepal. However, in this case the Tribunal has found that it is reasonable for the applicants to reallocate to different area of India where there is no appreciable risk of the occurrence of the feared persecution[7] or a real risk that the applicant will suffer significant harm. The Tribunal therefore makes no finding in relation to the applicants’ statutory effective protection in Nepal

Background

[5]   Nepal and India: Status of the Treaty of Peace and Friendship (No1302), including implementation (2012 October 2014) OG61C530222

[6] MIAC v SZRHU (2013) FCAFC 91

[7]   SZATV v MIAC (2007) 233 CLR 18 per Kirby J at [48], per Gummow, Hayne and Crennan JJ at [11]-[12

1. [Ms A] was born on [birth date] in [City 1], Punjab, India and is of the Jatt Sikh faith. Her mother and father live at [location] [City 1], Punjab, India. However, her father has been working as a [occupation] in [another country] for approximately 20 years but returns to Punjab on a regular basis. Her mother does not work.  

2. The country information indicates that Jatt Sikh is the predominant cast in Punjab with members controlling the majority of important religious and social institutions within the state. Jatt Sikhs are also major land owners[8] and are considered to be at the top of society.[9]

   [8]   Taylor, S., Singh, M., Booth, D. (2007) Migration, development and inequality: Eastern Punjabi transnationalism. School of Social Sciences and Law, University of Teesside, Middlesbrough, UK; Department of Sociology, Punjab University, Chandigarh, India.

   [9]   Ratan Saldi (6 June 2009). "Caste System Among Sikhs In Punjab". Asian Tribune.

3. [Mr B] was born on [birth date] in [City 1] Punjab, [a number of brothers] whom India and is of the Jatt Sikh faith. Prior to traveling to Australia, he lived with his Aunt in [City 1] Punjab, India. He has are married and live in [City 1] Punjab. [Mr B] has an interest in the family property, a [property] in Punjab.

4. [Ms A] and [Mr B] were introduced in 2007 by [Ms A]’s mother and [Mr B]’s Aunt. [Ms A]’s mother and [Mr B]’s Aunt were good friends.  After they were introduced [Ms A] would regularly accompany her mother to [Mr B]’s Aunt’s house to meet [Mr B]. The applicant’s evidence was that they were dating for over approximately a year prior to being married. Despite being in a relationship prior to their marriage they say that they were able to keep the relationship a secret from [Mr B]’s family.  

5. [Ms A] and [Mr B] were married [in] September 2008 according to Sikh faith and [in] April 2009 were married in [Australia] according to Australian law. Their marriage in India was not officially registered.

6. [Ms A]’s evidence was that her parents were accepting of their marriage but [Mr B]’s family did not approve of the marriage. She said that [Mr B]’s family did not accept the marriage because they had not chosen her as [Mr B]’s wife. They opposed the marriage due to the fact that [Ms A] comes from a lower Jatt caste within the Sikh faith and that her family is not wealthy.

7. [Mr B]’s evidence was that when their marriage was originally proposed by his Aunty his family demanded a dowry. [10] However, his Aunty was able to convince [Mr B]’s family to agree to the marriage without a payment of a dowry due to the fact that [Ms A] was educated and that she was planning to move to Australia to further her studies to secure her future. [Mr B]’s family saw this as a potentially lucrative prospect of settling their son abroad.  [Mr B]’s Aunty said that [Ms A] was a ‘smart girl’ and would be more likely to obtain a student visa to help [Mr B] travel to Australia.  As a result [Mr B]’s family agreed to the marriage.

   [10] Transcript Hearing 6 April 2017 at p.44

8. Both [Ms A]’s and [Mr B]’s families attended the wedding in India.

9. After their marriage [Ms A] was accepted into [Mr B]’s family home. However, about a month after the wedding, [Mr B] obtained a student visa and travelled to Australia [in] October 2008 without [Ms A]’s assistance. His evidence was that he had applied for a student visa to travel to Australia without informing [Ms A] or his family. 

10. [Ms A]’s evidence was that as soon as [Mr B] had left for Australia his family demanded that she divorce him so that he could marry a person of their choosing. She says that she was threatened and harassed by [Mr B]’s mother and forced to leave [Mr B]’s family home and return to live with her mother. As a result [Ms A] says that she suffered great social shame. However, despite her claim that she suffered emotional and physical abuse as a result of threats and harassment by [Mr B]’s mother, [Ms A] was not able to detail, except in broad terms, when and how she suffered such harm.    

11. In or about January 2009 [Ms A] consulted the members of the village council (‘the Panchayat’) in an attempt to resolve the issues between her and [Mr B]’s family. [Ms A] attended the meeting with her mother while [Mr B]’s mother and brother also attended. [Ms A] claimed that she provided the Panchayat with an entire account of all the ‘suffering and affliction’s she had to endure from the moment she married [Mr B].’[11] [Ms A] did not provide the Tribunal with such an account.

    [11] [Ms A] ‘Supporting statement in support of MRT hearing’ received by the Tribunal 28 November 2017

12. [Ms A]’s evidence was that at the Panchayat an agreement was made by which [Mr B]’s family would accept R[amount] per month in return for which they would stop torturing [Ms A] and her family (‘the Panchayat agreement’). [Mr B]’s evidence was that in accordance with the Panchayat agreement’ he made a payment of RM[amount] to his family in or about January 2009 but has not made any further payment. [Ms A] and [Mr B] were not able to tell the Tribunal how many monthly payments were to be made under the Panchayat agreement.

13. The witness statement of [Mr G][12] refers to a transaction of $[amount] between [Mr B] and his [father]. However, [Mr B]’s evidence was that that the statement by [Mr G] is incorrect and that the agreement was for R[amount] per month and not a single transaction of $[amount]. [Mr B] evidence was that he made the payment of RM [amount] to his family out of his earnings as a [occupation] but says that he is no longer working and cannot afford to make any further payments. The Tribunal accepts the evidence of [Mr B] and finds that there was an agreement to pay RM [amount] per month. It’s unlikely that either [Ms A] or [Mr B] could have paid $[amount] at the time of the agreement and as such it is more likely that a monthly amount was agreed.  

    [12] Statement by [Mr G] dated [in] March 2017.

14. In or about January 2009 [Ms A] applied for and was granted a student visa and arrived in Australia [in] February 2009 to join her husband and to study [details of studies].

15. The applicants’ daughter [Ms I] (‘the daughter’) was born on [birth date] in Australia. The applicants claim that before the birth their daughter, [Mr B] advised his parents on the telephone that they were going to have a baby. He says that in response to the news that they were having a child, [Mr B]’s father threatened to kill [Ms A]’s mother in India unless they divorced.  The Tribunal notes that despite the threats by [Mr B]’s father [Ms A]’s mother remains alive and living in her home in India. 

16. [Ms A]’s evidence was that her mother, [Ms F], travelled to Australia in January 2011 and stayed with the applicants for several months. Despite the alleged threats from [Mr B]’s family the applicants sent their daughter with [Ms F] back to India to live. The daughter initially lived with [Ms F] but, since 2015 has attended [School 1]. A statement by the school indicates that it had been informed of an ongoing family dispute and as a result has kept the child’s identity under cover.[13] Despite the applicants’ ongoing concern in relation to the potential harm to be inflicted by [Mr B]’s family they have not arranged for their daughter to return to Australia. [Ms A] has not seen her daughter since she was sent to India.

    [13] Statement of Statement by [School 1] dated [April] 2017.

1. On [birth date] the applicants’ son (the third applicant’) [Mr C] (‘the son’) was born and currently lives with [Ms A] and [Mr B].  

2. [Ms A] claims that [Mr B]’s family have attacked and threatened her mother as a result of their marriage. [Ms F]’s affidavit dated [in] January 2015 (‘[Ms F]’s affidavit’) states[14] that she was attacked as follows:

   (a)[In] March 2011, [Mr B]’s father and ‘another person’ attacked her. During the attack she was [injured]. She says that she was taken to the clinic by strangers and treated at the hospital for a period of two days.

   (b)[In] December 2012, 4 or 5 men came to her house wanting to know why [Ms A] and [Mr B] were not returning to India. She says that she said to them that they were happy in Australia and that in response the men [assaulted her and Ms I].

   (c)[In] December 2014 [Mr B]’s father and his brothers went to house in the night. She says they slapped her and threatened her wanting to known when [Mr B] and [Ms A] will return to India. 

   [14] Affidavit of [Ms F] dated [in] January 2015; Affidavit of [Mr E] dated [January] 2015

3. In addition [Ms F] says that the police have harassed her and detained her illegally warning her not to make any complaint against [Mr B]’s father and stating that she should call upon [Ms A] and [Mr B] to return to India. 

4. The applicants provided the department with a medical report by [a doctor] dated [in] March 2011[15] which states that [Ms F] had attended [a clinic] on [in] March 2011 with [injuries], but states that she was discharged on [shortly afterwards] in a satisfactory condition.

   [15] [File number] p.82

5. The applicants also provided further affidavits of [Mr D], [Mr E] and [Ms J] in support of [Ms A]’s mother’s affidavit.

6. [Ms A] says that she only became aware of the attacks on her mother when [Ms A]’s sister visited Australia in or about May 2013. [Ms A]’s evidence was that her sister now lives with the applicants at their current [address].

7. The applicants fear that if they return to India they will be subject to reprisals and threats by [Mr B]’s family and followers of the Guru Ajit Singh Hansali (‘Hansali’).

Country Information

1. The applicant where referred to the DFAT Country Information Report – India dated 15 July 2015 (‘the DFAT Report’). It states as follows:

   ‘3.33 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.

   3.34 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.

   3.35 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). Since the election of the Modi government in May 2014, Hindu right-wing groups that claim proximity to the BJP have stepped up social pressure and violence against inter-faith marriages involving Hindus. In rural India, village councils have played a role in upholding conservative community views about marriage and relationships. 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.’

   Honour Killings

2. The DFAT Thematic Report Indian State of Punjab dated 7 December 2016 (‘the Punjab Report’) states:

   ‘4.4Honour killings occur when a person is murdered by others in their family due to a perception that the victim has brought shame to the family. In India this typically occurs when a person has a relationship with someone of whom their family does not approve, either because of their caste, religion, socio- economic status or some other reason. For example, in July 2015 a Sikh woman was reportedly murdered by several members of her family in Punjab Gurdaspur district a fter marrying a Christian man. The couple had left their home village after their marriage and lived elsewhere for around 18 months. The woman was allegedly killed a fortnight after returning to the village. In May 2016 a man reportedly killed his 19 year old daughter in Bathinda district because she was believed to have been having a relationship with a man from a backward caste.

   4.5….

   4.6Credible data on the prevenance of honour killings in Punjab is unavailable, due in part to suspected under-reporting. Such killings may be reported as natural deaths, suicides or murders with unspecified motives in official statistics. According to the National crime Records bureau, five cases of murder were attributed to honour killing in Punjab in 2014 (the latest year for which official record data are available), out of a total of 28 cases nationally. The United Nations, however, estimates that there are around 1000 honour killings nationally each year. According to the US State Department, in 2013 local non- government organisations estimated that there were 900 honour killings annually in Haryana, Punjab, Uttar Pradesh alone…’

3. The US Department of State (USDOS) reported in its Country Reports on Human Rights Practices for 2011  that the ‘most common justification for the killings offered by those accused or by their relatives was that the victim married against her family's wishes.’

4. Human Rights Watch indicated in 2010 indicates that police protection and enforcement in relation to honour killings is lacking. It said that “some local politicians and officials have been sympathetic to the councils' [khap panchayats] edicts, implicitly supporting the violence” and that “police routinely fail to investigate apparent honour killings. This is corroborated by other sources. A 2008 article quoted a judge in Maharashtra as stating “we hear at least 10-15 cases a day where police have not taken the necessary action”, although authorities have also been known to make arrests and prosecute perpetrators. Reports from 2010 and 2011 were located referring to the provision of police protection to couples and their families due to family or community opposition to their marriages.

5. In July 2010, Prime Minister Manmohan Singh ordered a cabinet-level commission to consider implementing tougher penalties for those found guilty of undertaking honour killings. In April 2011, the Supreme Court of India directed states to act decisively against honour killings “warning them to punish officials who fail to act against offenders”. The court also spoke out in favour of the death penalty for those convicted of honour killings in May 2011 for its deterrence effect. In 2011, the Indian Law Commission approved a draft piece of legislation outlawing honour killings entitled The Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act 2011.

6. Human Rights Watch issued a special report in July 2010 calling on India to amend and enforce laws in order to end “rampant” honour killings in the country. The report states:

   ‘Murders to protect family or community “honor” have increased in recent months, in the northern states of Haryana, Punjab,  and Uttar Pradesh, where unofficial village councils, called khap panchayats, issue edicts condemning couples for marrying outside their caste or religion and condemn marriages within a kinship group (gotra), considered incestuous even though there is no biological connection. To enforce these decrees and break up such relationships, family members have threatened couples, filed false cases of abduction, and killed spouses to protect the family's “honor”.’

7. Freedom House noted in 2011 that violence stemming from village council edicts is aggravated for women and members of lower castes. The Women News Network issued a report in October 2011 that stated in relation to marriage in India, “going against family wishes has grave consequences”, such as honour killings which the report states are common.

8. The India's National Commission for Women (NCW) and non-government organisation (NGO) Shakti Vahini conducted a survey in 2010, the results of which indicated that family members were responsible in 88.9 per cent of honour killings cases. In addition to killings cases of harassment and abuse have also been reported. This includes threats, filing false abduction and rape allegations with authorities against the husband, physical abuse and rape.

9. As to the Indian police force generally the US Department of State Country Reports on Human Rights Practices[16] comments that

   ‘Corruption in the police force was pervasive and acknowledged by many government officials. Officers at all levels acted with considerable impunity and were rarely held accountable for illegal actions. Should authorities find an officer guilty of a crime, transfer to a different post or position was the common response. Human rights activists and NGOs reported that bribery was often necessary to receive police services’.

   [16] US Department of State Country Reports on Human Rights Practices 2008

10. As to the police force in the State of Punjab the DFAT Report[17] advises that the police capacity is very low, particularly the investigative capacity, and the police have a poor reputation with a high level of corruption.  There is a perception that there is political interference in policing, with report of large scale movement of senior officers occurring after a change of government. 

Internal Migration

[17] DFAT Thematic Report Indian State of Punjab dated 7 December 2016 at p.20

1. Section 19(1)(d) an (e) of India’s Constitution guarantees citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India subject to the reasonable restrictions in the interest of the sovereignty and integrity of India and security of the State. 

2. The DFAT report[18] notes that there is a high rate of mobility within India. It advises that the internal migration flows are substantial but difficult to enumerate. The state of Punjab[19] has a long history of migration both internally and overseas. There are no significant legal or administrative barriers to internal migration and many Punjabis move to other parts of the country for education and employment opportunities.

   [18] DFAT Report at 5.14, p.21

   [19] DFAT Thematic Report Indian State of Punjab dated 7 December 2016 at p.21

3. The DFAT report[20] also notes that internal reallocation in India may be limited by factors such as language, lack of documentation, lack of familial or community networks, lack of financial resources, lack of employment opportunities or discrimination based on gender, ethnicity, religion or caste.  However, the DFAT report states that despite such difficulties millions of Indians successfully relocate within India temporarily or permanently every year. It also advises that it is possible to obtain work in the large informal sector without papers. DFAT reports that there is a large range of variable internal options for individual seeking protection from discrimination or violence.

   [20] DFAT Report at 5.17, p.21

4. More particularly, DFAT[21] assess that internal relocation may be a viable option for people in Punjab seeking to avoid certain types of mistreatment. New Delhi in particular is a popular destination for many people from Punjab seeking improved economic opportunities and relatively greater social freedoms.[22] The DFAT report notes that circumstances in which people have been the victim of an honor killing after relocating to another part of India to avoid the consequences of having a relationship against their family’s wishes are rare.[23] 

   [21] DFAT Thematic Report Indian State of Punjab dated 7 December 2016 at p.22

   [22] ibid

   [23] ibid

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. 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[24]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[25]

   [24] s.5AAA Migration Act 1958.

   [25] (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.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[26] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [26] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[27] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

   [27] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

5. The Tribunal finds and accepts the following evidence of the applicant that:

   (a)The applicants are of the Sikh faith and Jatt caste.

   (b)[Mr B] is entitling to a share of the family [property] in Punajb India.

   (c)[Ms A] and [Mr B] were married [in] September 2008 according to Sikh faith and [in] April 2009 were married in [Australia] according to Australian law.

   (d)[Mr B]’s family consented to applicants marriage as she could assist [Mr B] obtain a visa to travel to Australia.

   (e)[Mr B] obtained a student visa and traveled to Australia on or about [October] 2008.

   (f)by the  Panchayat agreement the [Mr B] family agreed to accept RM[amount] per month to stop harassing [Ms A].

   (g)[Ms A] travelled to Australia on a student visa [in] February 2009 to join her husband and to [study].

   (h)the applicants’ daughter was born on [birth date] in Australia.

   (i)in or about January 2011 [Ms A]’s mother travelled to Australia to take [Ms I] back to India to live.

   (j)the applicants’ son was born on [birth date]. 

Delay

1. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[28] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[29]

   [28] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.

   [29] Subramanium v MIMA (1998) VG310 of 1997

2. In this case the [Mr B] arrived in Australia [in] October 2008 and [Ms A] [in] February 2009. Despite applications by [Ms A] to the MRT and for Ministerial Intervention in 2011 and 2013 respectively, the applicants did not make application for a protection visa until [August] 2014. In making its decision the Tribunal has taken into account the applicants delay in making their application for a protection visa.

Applicants claim  

1. There were a number of inconsistencies and implausibility’s in the applicants’ claims that have caused the Tribunal not to accept parts of the applicants’ evidence. The Tribunal accepts that [Mr B]’s family objected to the marriage on the basis of [Ms A]’s caste or due to the fact that they had not chosen [Ms A] as [Mr B]’s wife. However, they agreed to the marriage and accepted [Ms A] into their home in circumstances where they believed [Ms A] would help [Mr B] travel to Australia. As a result, [Mr B]’s family attended the applicants wedding in India.

2. It was only after [Mr B] obtained a student visa and traveled to Australia without the assistance of [Ms A] that [Mr B]’s family reject her.   

3. As such, the Tribunal finds that [Mr B]’s family did accept the applicants’ marriage in India on the basis that they would obtain a financial benefit.  The evidence of [Mr B] was that his family had demanded a dowry at the time his Aunty discussed their marriage with his mother. Their demands that [Ms A] ‘divorce’ [Mr B] so that he could marry someone else were made in circumstances where [Ms A] could no longer help [Mr B] travel to Australia.  Accordingly, despite the lack of evidence as to the specific nature of the threats and harassment suffered by [Ms A], the Tribunal accepts and finds that after [Mr B] left for Australia [Ms A] was threatened and harassed by [Mr B]’s mother and forced to return home to live with her mother.

4. In addition, a condition of the Panchayat agreement was that [Mr B]’s family would be paid R[amount] per month to stop ‘torturing’ [Ms A] and her family. The fact that [Mr B] and not [Ms A] made the payment of RM[amount] to his family in January 2009 indicates that [Mr B]’s family was again prepared to accept that [Ms A] and [Mr B] would be together on the condition that they receive a financial benefit.   However, no further payments were made to [Mr B]’s family by [Ms A] or [Mr B]. It is therefore not surprising that [Mr B]’s family visited [Ms F] from time to time to find out when [Ms A] and [Mr B] will return to India as they have an expectation they will be paid the money agreed to under the Panchayat agreement.

1. As to [Ms F]’s affidavit the evidence contains a number of inconsistencies and is at times implausible. In particular, she states that she was attacked by [Mr B]’s family on or about [March] 2011 and as a result was taken to the clinic by strangers.[30] However, his affidavit dated [in] January 2015 [Mr E] (‘[Mr E] affidavit’) [31] states that he knows [Ms F] and that after the attack he took her to the clinic with some others.  Further, the injuries described in the medial report by [the doctor] are not consistent with those injuries described by [Ms F]. Specifically, [Ms F] describes [a particular part of her body being injured] during the attack but, there is no reference to [that part of her body] having been injured in the medical report. As a result of the inconsistencies in the evidence provided to the Tribunal and the absence of any independent evidence supporting third party evidence the Tribunal places little weight on the evidence of [Ms F] in relation to the attack [in] March 2011. Therefore, the Tribunal accepts and finds [Mr B]’s father and brother did visit [Ms F] on or about [March] 2011 but finds that they did not attacked or injure her. 

   [30] [Ms F] Affidavit dated [in] January 2015 at paragraph 3.

   [31] [Mr E] in his affidavit dated [in] January 2015 at paragraph 2

2. In addition, the [Ms F] affidavit states that she was harassed and detained by the police. [Ms F] claims that the police demanded that [Ms A] and [Mr B] return to India.[32] The applicants’ claim that [Mr B]’s family is influential within the Sikh community and are politically connected to [a public official, Mr K]. They say that [Mr B]’s father and brothers have such political influence that they directed the police to arrest and harass [Ms F]. In addition the applicants claim that [Mr B]’s family is able to influence the police to take any action against them in the event they return to India. The applicants referred to photographs on the Department file that they said show [Mr B]’s [relative with Mr K] as evidence of the political connections held by [Mr B]’s family.

   [32] [Ms F] Affidavit dated [in] January 2015 at paragraph 7 & 8.

3. On the available country information the Tribunal accepts that police corruption exists in India. However, the Tribunal does not accept that the police would go to the lengths of arresting and detaining [Ms F] at the direction of [Mr B]’s family in circumstances where the nature of the complaint is a family matter and does not relate to any matter that would give them cause to arrest and detain her. The only evidence provided to the Tribunal of the [Mr B]’s family’s political influence was the photo of [Mr B’s relative with Mr K]. This is not is not sufficient to persuade the Tribunal that [Mr B]’s family has such influence over the police to arrest and detain [Ms A]’s mother over a family dispute. As such in the absence of any independent evidence the Tribunal does not accept the evidence of the applicants relating to the political influence of [Mr B]’s family and finds that [Mr B]’s family does not have the influence over members of the police force to harm the applicants.  As such, the Tribunal rejects the evidence of [Ms F] that the police harassed her on the instruction of [Mr B]’s family.   

4. [Ms F] states in her affidavit that she was threatened and beaten by members of [Mr B’s] family and other men on two other occasions, being [December] 2012 and [December] 2014.[33] She states that [in] December 2012, 4 or 5 men came to her house wanting to know why [Ms A] and [Mr B] were not returning to India. She says that she said to them that they were happy in Australia and that in response the men beat her and pushed the daughter. Further, she states that [in] December 2014 [Mr B]’s father and his brothers went to [Ms F]’s house in the night. She says they slapped her and threatened her wanting to known when [Mr B] and [Ms A] will return to India. While the Tribunal accepts that members of [Mr B]’s family visited [Ms F] on each occasion, in the absence of any independent evidence, it does not accept that they threatened, slapped or beat [Ms F] or that they pushed the daughter.  The visits by [Mr B] father and brothers are said to have occurred approximately 4 and 6 years after the applicants arrived in Australia. It is improbable that after such a period of time, and in the absence of any provocation by either [Ms F] or the applicants, that they would engage in such conduct toward [Ms F].    

   [33] [Ms F] Affidavit dated [in] January 2015 at paragraphs 7 & 9.

5. The affidavit of [Ms J] dated [in] January 2015 (‘the [Ms J] affidavit’) and the [Mr E] affidavit both give evidence as to the fact and events described in the [Ms F] affidavit. However, neither were present at any of the events described and do not provide any explanation as to how they able to attest to the facts and circumstances described in the [Ms F] affidavit. For example, [Mr E] attests to the attack [in] December 2014 in circumstances where he was not present at the time of the attack and does not explain how he has knowledge of the event. [Ms J]’s affidavit is expressed only in very broad terms and does not explain how she has knowledge of those matters described in the [Ms F] affidavit.[34] As such the Tribunal places no weight on the [Ms J] and [Mr E] affidavits.

   [34] [Ms J] Affidavit dated [in] January 2015 paragraph 5.

6. The applicant’s state that [Ms A] and [Mr B] will be significantly harmed by [Mr B]’s father and brothers and other members of the Sikh community because they do not support the marriage. However, there is only limited evidence of threats against the applicants. [Ms F] in her affidavit dated [in] November 2011[35] refers to threats made by [Mr B]’s father to kill her and the applicants.  However, her evidence is expressed in very broad terms and does not detail when and where such threats were made. Conversely, the threats and harassment described by [Ms F] in her affidavit dated [in] January 2015 do not refer to any direct threat made against [Ms A] or [Mr B]. Finally, [Ms A]’s evidence was that she has had no contact with [Mr B]’s family since leaving India and as such no threat has been made directly to her. Therefore, in the absence of any independent evidence to support their claim, the Tribunal does not accept that [Mr B]’s father and brothers have made any threats against the life of either [Ms A] or [Mr B].

   [35] [Ms F] Affidavit dated [in] November 2011 at paragraphs 3,4,&6

7. In addition, [Ms F] claims in her affidavit that the daughter was present at one of [Mr B]’s family visits to her home.[36] She states that the daughter was pushed by one of the men and beat her. For the reasons above the Tribunal does not accept that the daughter was pushed or beaten. In addition, the Tribunal notes that despite the alleged threats to kill [Ms F] no attempt has been made by [Mr B]’s family to seriously harm her. As such, the alleged threats made by [Mr B]’s family against [Ms F] and the daughter as alleged by the applicants have been grossly overstated.

   [36] [Ms F] Affidavit dated [in] January 2015 at paragraphs 7.

8. In addition they say that [Mr B]’s mother is a follower of the guru Saint Baba Aji Hansali Wale based in Hansali Sahib, Ropar India (the sect). The applicants’ claim that the sect has such a large following all over India and that every person in the community knows about their marriage. The sect is said to have very strong political and even criminal connections that the applicants could not escape the sect’s followers.    Chief Minister of Punjab is a follower of the guru. The applicants fear that [Mr B]’s mother will use her influence within the sect to harm them in the event they return to India. The applicants’ are not personally known to any of the followers of the sect. However, the applicants’ evidence was that the followers of the sect were interlinked and that [Mr B]’s family would pay them to harass the applicants.

9. However, on 4 January 2015 the Tribune Newspaper in Punjab reported that Saint Baba Aji Hansali Wale had died and that Chief Sewadar, Paramjit Singh, has been appointed the new head of the dera. The article reported that Baba Ajit Singh was known for giving spiritual guidance to his disciples. Maneka Gandhi, Union Minister, Yuvraj Singh cricketer, Capt Amarinder Singh, former CM, Preneet Kaur and several other celebrities regularly visited the dera. It reports that Dera Hansali is a Trust constituted by Baba Ajit Singh and in the business of running and operating schools, a college, a hospital and several welfare schemes.[37] In the circumstances given the nature of the dera it is unlikely to have engaged in threatening and harassing behaviour over what is a family dispute.

   [37] The Tribune Newspaper 4 January 2015,

10. Therefore, the Tribunal finds that the followers of Guru Hansali will not threaten or harass the applicants upon their return to India. The evidence provided is not enough to persuade the Tribunal that [Mr B]’s mother has the influence within the sect such that members of the sect would harm the applicants In addition there is no evidence that [Mr B]’s mother will pay members of the dare, or any other person, to harm the applicants. In the absence of any independent evidence to support their claim, the Tribunal finds that given the nature of the activities of the sect its members will not engage in threatening and harassing behaviour whether paid or not. Accordingly, the Tribunal finds that there is no real chance of the applicants suffering serious or significant harm from members of the sect.

11. On the available evidence and the available country information the Tribunal finds that [Mr B]’s family did object to the applicants’ marriage. However, despite their objection to the marriage due to [Ms A] being form a lower caste, they agreed to the marriage on the basis that they were to receive a financial benefit which was not paid. Therefore, by reason of the fact that [Ms A] and [Mr B] have married in Australia without having paid the money as agreed the Tribunal accepts that [Mr B]’s family objected to the marriage.

12. As a result theTribunal acknowledges that the applicants have a subjective fear regarding [Mr B]’s family due to the fact that they have married against their wishes. The applicants fear that if they return to India they will continue to be threatened and become victims of an honour killing by [Mr B]’s family due to the fact that they have not paid the money as agreed under the Panchayat agreement. Having considered the country information the Tribunal accepts that honour killings occur in India and in particular in the State of Punjab. Therefore based on the country information, the Tribunal finds that as a result of their marriage and by not paying the money under the Panchayat agreement, the applicants are in danger of being a victim of an honour killing by [Mr B]’s family.

13. As potential victims of an honour killing, the Tribunal finds that the applicants are part of a particular social group who have a well-founded fear of persecution. The Tribunal therefore accepts and finds that there is a real chance the applicants will be persecuted by reason of their particular social group in the event they are returned to India.  

Refugee Protection  

1. The applicants applied for a protection visa prior to 16 December 2014, therefore the Tribunal must be satisfied, pursuant to s.36(2)(a) of the Act, that [Ms A] and [Mr B] are people ‘in respect of whom Australia has protection obligations’ under the Refugees Convention and Protocol. Generally speaking, Australia has protection obligations to persons who satisfy the definition of ‘refugee’ in Article 1 of the Refugees Convention. Therefore, the criterion in s.36(2)(a) of the Act calls for consideration of that definition. However, the concept of ‘protection obligations’ in s.36(2)(a) is qualified by s.36(3), which provides that Australia is taken not to have protection obligations in respect of a non-citizen in certain specified circumstances, and ss.91R, 91S and 91T, which explain or qualify some aspects of the Convention definition.

2. The term ‘refugee’ is defined in Article 1 of the Refugees Convention. In particular, Article 1A(2) of the Convention, read with the Protocol, defines a refugee as a 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……

3. At no stage did the applicants advance any other reason in their written or oral claims, such as their race, nationality or religion, that they are owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims to be considered.

4. In this case the applicants’ fear of harm arises from a domestic relationship by which they now find themselves in conflict with the demands of [Mr B]’s family. As a result, the Tribunal finds that the applicants’ fear of persecution does arise by reason of their membership of a particular social group being victims of honour killings in India. As there is a real chance that the applicants will suffer serious harm by reason of their membership of the social group. Accordingly the Tribunal finds that [Ms A] and [Mr B] are people to which Australia has protection obligations as refugees pursuant to s.36(2)(a).

Complementary Protection

1. The applicants state that as a necessary and foreseeable consequence of them returning to India there is a real risk that they will suffer significant harm from [Mr B]’s family.[38] The types of harm that will amount to ‘significant harm’ are exhaustively defined by s.36(2A) of the Act.[39] Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of his or her 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.

   [38] s.36(2)(aa) of the Act

   [39] SZRTN v MIAC [2013] FCCA 583 (Judge Nicholls, 21 June 2013) at [43] (upheld on appeal: SZRTN v MIBP (2013) 138 ALD 104).

2. The test under s.36(2)(aa) is a forward-looking one of reasonable foreseeability.[40] The ‘necessary and foreseeable consequence’ element in s.36(2)(aa) attaches to the risk of harm, rather than the actual occurrence of harm. That is, the exposure to the risk (and not the harm itself) must be a necessary and foreseeable consequence of return.[41]In this case it is reasonably foreseeable that the applicants will be the victims of an honour killing and be significantly harmed if they are returned to [City 1], Punjab in India.

   [40]        WZASD v MIBP [2013] FCCA 1940 (Judge Lucev, 29 November 2013) at [30]..

   [41] SZSKC v MIBP [2014] FCCA 938 (Judge Lloyd-Jones, 16 May 2014) at [71]-[73].

3. However, the ‘real risk’ test also imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[42] That is a substantial chance, as distinct from a remote or far-fetched possibility. While s.36(2)(aa) does not require that the applicant hold a subjective fear,[43]  the applicants past experience of the past may assist in an assessment of the likely risk of future harm.[44]

   [42] MIAC v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

   [43] SZVVE v MIBP [2015] FCA 837 (Perram J, 13 August 2015) at [21].

   [44] MZAAD v MIBP [2015] FCA 1031 (Beach J, 18 September 2015) at [41], referring to MIEA v Guo (1997) 191 CLR 559 at 574 and 575.

4. Section.36(2)(aa) requires that there be both ‘substantial grounds’ and ‘a real risk.’ This suggests that ‘substantial grounds’ imposes an evidentiary standard and ‘real risk’ an assessment of the probability of the applicant suffering significant harm. The applicant’s credibility is relevant to the question of substantial grounds for believing there is a real risk.[45] In this case, the Tribunal is satisfied that the applicants are at a real risk of being the victims of an honour killing by [Mr B]’s family and as a result will suffer significant harm upon their return to India.

   [45] SZSHK v MIBP (2013) 138 ALD 26 at [31].

5. Having considered all the applicant’s claims and accepted circumstances, both individually and cumulatively, the Tribunal is satisfied 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 of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required by s36(2)(aa).

Reallocation

As a Refugee

1. The Tribunal considered whether the applicants might reasonably relocate to another part of India. For the purposes of the applicants claim as a refugee, the Convention does not expressly exclude a person who, although having a well-founded fear of persecution in their home region, might nevertheless reasonably relocate to a safe area within their country.[46] In Randhawa v MILGEA (1994) 52 FCR 437 the Full Court of the Federal Court accepted the principle of internal relocation on the basis that ‘[t]he focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country’.[47]

   [46] SZATV v MIAC (2007) 233 CLR 18 per Kirby J at [48], per Gummow, Hayne and Crennan JJ at [11]-[12].

   [47] Randhawa v MILGEA (1994) 52 FCR 437 at 440-1.

2. In addition, in SZATV v MIAC (2007) 233 CLR 18 the High Court confirmed as a general proposition that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[48] Similarly, it may be reasonable for an applicant to remain in a place in that country where he or she will be safe.[49]

   [48] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.

   [49] MIBP v SZSCA (2014) 254 CLR 317.

3. Therefore, for the purposes of s.36(2)(a) in determining whether the applicants are people in respect of whom Australia has protection obligations under the convention, it is necessary to consider whether the applicant might reasonably relocate to or remain in a region within their country, free of the risk of persecution. For the reasons provided above the Tribunal finds that the applicants are not at risk by followers of the guru Saint Baba Aji Hansali Wale and that [Mr B]’s family does not have the political influence to harm to the applicants. In addition there is no evidence that the applicants would experience any generalised risk of harm in any area outside their local area. Accordingly, the Tribunal finds that any real chance that the applicants will suffer serious harm is localised to the area of [City 1], Punjab in India.

4. The DFAT report on India notes that section 19(1)(d) and (e) of the Indian Constitution guarantees that its citizen are free to move throughout the territory of India and the have the right to settle and reside in any part of the country.[50]  The Report notes that there is a high rate of internal mobility within India. The 2001 Census stated that there were around 307 million internal migrants in India.[51] The DFAT report notes that internal relocation may be limited by a range of factors including language barriers, lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities and discrimination based on ethnicity, religion or caste.[52]

   [50] DFAT Country Information Report India 15 July 2015 p.21

   [51] Ibid.

   [52] Op Cit p.22

1. The applicants say that they cannot relocate to another area of India because the employment opportunities are not very good and they do not have the financial resources to relocate elsewhere in the country. However, the applicants have moved to Australia. One would expect that the cost of moving internally in India would be comparable or even less than moving to and around Australia as the applicants have done over the last few years. In addition [Mr B] holds a recognised Indian [qualification]. They are relatively youthful and both fit and able enough to find work. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work if they were to return to India, it does not accept the applicants will not be able to access paid employment into the reasonably foreseeable future.

2. The DFAT report states that while approximately 75% of the Sikh population live in Punjab, significant Sikh populations also reside in areas such as Hatyana, Rajasthan, Uttar Pradesh, Delhi, Chandigrah, Jammu and Kashmir and Himachal Pradesh.[53] Therefore, on an objective basis it is reasonable to expect the applicants to relocate to another area in India where there is no real chance the applicants will suffer serious harm.[54] Accordingly, by reason of the applicants being able to relocate in India it is taken that there is no a real chance the applicants will suffer serious harm in India by reason of them being a member of a particular social group that is, as potential victims of an honour killing.  

Complementary protection.

[53] OpCit p.22

[54] See MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013) at [39].

1. For the purposes of complementary protection an applicant is taken to be not at risk of suffering significant harm in a country if the Tribunal is satisfied that 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 non-citizen will suffer significant harm’[55] That is, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared harm.[56] 

   [55] s.36(2B) of the Act

   [56] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.

2. For relocation to be effective it is necessary that the real risk of harm be localised rather than nation-wide.[57] For the reasons given above the Tribunal finds that there is no real risk that the applicants will suffer significant harm in other areas of the country of India. Accordingly the Tribunal finds that the real risk of significant harm the applicants will suffer is localised to area of [City 1], Punjab in India.

   [57] In MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013) at [37].

3. Therefore, for the reason provided above the Tribunal finds that the applicants could relocate to another area within India such that there would not be a real risk that the applicants will suffer significant harm. Accordingly, pursuant to s.36(2B)(a), there is taken not to be a real risk that the applicants will suffer significant harm in India and as such they do not satisfy s.36(2)(aa) in this regard.

4. In all the circumstances the applicant does not have well-founded fear of persecution based on their claim and does not satisfy s.36(2)(aa), if they are returned to India.

100.At no stage did the applicant advance any other reason, such as her race, nationality or religion, in her written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

CONCLUSION

101.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 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).

102.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are people in respect of whom Australia has protection obligations under s.36(2)(aa).

103.The son 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 applicants do not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant each of the applicants a protection visa.

Jason Pennell

Member