1509657 (Refugee)
[2017] AATA 3072
•14 March 2017
1509657 (Refugee) [2017] AATA 3072 (14 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1509657
COUNTRY OF REFERENCE: India
MEMBER:Suzanne Carlton
DATE:14 March 2017
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 14 March 2017 at 12:37pm
CATCHWORDS
Refugee – Protection Visa – India – Religion – Religious convert - Jehovah’s Witness – Fear of violence – Fear of societal discrimination – Country information does not support applicant’s claims – Internal relocation availableLEGISLATION
Migration Act 1958, ss 36(2)(aa), 36(2)(b)-(c), 48A, 65, 499
Migration Regulations 1994, r 1.12, Schedule 2CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AMA15 v MIBP [2015] FCA 1424
BZAHO v MIBP [2014] FCCA 2981
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZQRB [2013] FCAFC 33MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MZZIA v MIBP [2014] FCCA 717
MZZQE v MIBP [2014] FCCA 1642
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998)
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZGIZ v MIAC (2013) 212 FCR 235
SZRLK v MIAC [2012] FMCA 1155
SZSFK v MIAC [2013] FCCA 7
SZSGA v MIMAC [2013] FCA 774
SZTBD v MIBP [2013] FCCA 2182
SZTFL v MIBP [2014] FCCA 1620
SZTFL v MIBP [2015] FCA 1323
SZTGN v MIBP [2014] FCCA 1467
SZTQP vMIBP (2015) 232 FCR 452
SZUDL v MIBP [2014] FCCA 2018
SZURK v MIBP [2015] FCCA 472Any 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
The first-named applicant and the second-named applicant (the applicants) arrived in Australia in June 2009 as the holders of Student visas with passports issued to them by India. Those visas were valid until September 2011. They applied for Protection visas in July 2011 claiming to fear being harmed in India for reasons of the first-named applicant’s religious beliefs as a Jehovah’s Witness. The second-named applicant made no claims in his own right. A delegate of the Minister for Immigration refused the applications for protection September 2011. The applicants sought review of that decision with the Refugee Review Tribunal (RRT) but the application was refused in March 2012.
Following the introduction of the ‘Complementary Protection’ criteria into the Migration Act in March 2012, and the subsequent decision of the Full Court of the Federal Court in SZGIZ v MIAC[1], the applicants were eligible to have protection claims assessed against the Complementary Protection criterion, and, on that basis, they lodged further applications for Protection visas [in] November 2012, which are the subject of the present review.
[1] (2013) 212 FCR 235
The applicants appeared before the Tribunal and gave evidence at a hearing on 17 January 2017. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing by conference telephone.
The issue for determination is whether or not there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first-named applicant’s removal from Australia to India, there is a real risk that she will suffer significant harm. In considering these issues, the Tribunal has applied the law as set out below.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC held that the operation of s.48A is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa.[2] The Federal Court in AMA15 v MIBP[3] upheld the Tribunal’s approach of considering only claims in relation to the Complementary Protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the Refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the first-named applicant’s claims only in relation to s.36(2)(aa).
[2] Ibid at [38]
[3] [2015] FCA 1424
Section 499 Ministerial Direction
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.
Complementary Protection criterion
If a person is found not to meet the Refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the Complementary Protection criterion’).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4]
[4] MIAC v SZQRB [2013] FCAFC 33
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
An applicant will suffer significant harm if they will be subjected to torture: s.36(2A)(c). Torture is exhaustively defined in s.5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).
However, torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted.
However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e). Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer 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 applicant will suffer significant harm.
That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country.[5]
[5] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk.[6]
[6] MIAC v MZYYL [2012] FCAFC 147
Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.
There will not necessarily be any error in the decision-maker referring to its earlier findings of fact, particularly where those findings leave no factual basis for the claims.[7] However, where the earlier findings reject claims for reasons specific to the refugee criterion, for instance because they do not involve serious harm or harm for a Convention reason, refusing claims under s.36(2)(aa) by reference to those findings may lead to error.[8]
[7] SZSGA v MIMAC [2013] FCA 774 (Robertson J, 6 August 2013) at [55]-[56]. See also SZTQP vMIBP (2015) 232 FCR 452 at [36]. BZAHO v MIBP [2014] FCCA 2981 (Judge Jarrett, 23 December 2014) at [27]-[28] and [33]-[34]; MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) at [30]-[35]; SZTFL v MIBP [2014] FCCA 1620 (Judge Driver, 1 August 2014) at [29] and [41] (upheld on appeal in SZTFL v MIBP [2015] FCA 1323 (Jessup J, 25 November 2015).
[8] SZRLK v MIAC [2012] FMCA 1155 (Smith FM, 14 December 2012) at [44] where the Court found that the Tribunal’s own refusal to characterise any part of the past persecution of the applicant as Convention-related left alive a claim that the applicant would face significant harm, requiring consideration under s.36(2)(aa). Similarly, in SZSFK v MIAC [2013] FCCA 7 (Judge Driver, 16 May 2013) the Court held that given that the reviewer rejected certain claims under the Refugees Convention for reasons specific to the Convention, it was not open to the reviewer to say that the complementary protection claim was rejected for the same reasons: at [92]. The Court cautioned that the use of language drawn from the refugee criterion context (in that case, „systematic‟) may suggest error if used in relation to the complementary protection criterion: at [97]. See also SZTGN v MIBP [2014] FCCA 1467 (Judge Driver, 3 October 2014) at [45]-[47]; MZZQE v MIBP [2014] FCCA 1642 (Judge Burchardt, 19 August 2014) at [21]-[30]; SZURK v MIBP [2015] FCCA 472 (Judge Driver, 29 April 2015) at [48]. Contrast SZTBD v MIBP [2013] FCCA 2182 (Judge Nicholls, 17 December 2013) at [40] where the Court found there was no error in the Tribunal referring in its consideration of complementary protection to factual findings set out earlier in the decision record where those factual findings were not „bound up‟ with Refugees Convention-related thinking; and SZUDL v MIBP [2014] FCCA 2018 (Judge Nicholls, 4 September 2014), which distinguished SZSFK on the basis that the Tribunal’s findings of fact were not reliant on Refugees Convention concepts: at [71]-[97].
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the spouse of the applicant.
Credibility
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[9] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[9] Including Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Abebe v The Commonwealth of Australia (1999) 197 CLR 510; Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Anor (1994) 34 ALD 347; Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445; Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997); Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[10] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.” Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[10] (1996) 40 ALD 445 at 482
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[11] and the comments of the High Court on the correct approach to determining findings on credibility. There Kirby J observed:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.[12]
[11] (1996) 185 CLR 259
[12] Ibid at [25]
The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs,[13] the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved”.
[13] (unreported, 7 November 1997)
The Trubunal is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.” Nevertheless, as Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service. [14]
[14] [1999] FCA 76
Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs,[15] “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”
[15] (unreported, 17 September 1998)
Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[16] Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[17] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[18] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.[19]
[16] Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9
[17] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241
[18] See MIMA v Rajalingam (1999) 93 FCR 220
[19] (1999) 197 CLR 510 at [191]
CONSIDERATION OF CLAIMS AND EVIDENCE
The first-named applicant (the review applicant) is a [age]-year-old Indian woman born in Punjab and raised in the Hindu religion. The second-named applicant is her husband, a [age]-year-old Indian man also born in Punjab and raised as a Hindu. The second-named applicant makes no claims in his own right, instead relying on being a member of the family unit of the review applicant. Both speak Punjabi and some English.
The review applicant was born in a village in [Punjab], India but has spent the majority of her life in [a town in] Punjab, India. There are she finished high school and qualifications in two fields, as well as studying IELTS-level English.
She married the second-named applicant in 2009 and lived with his family in [Punjab] for a period of about four months before the two were granted [student] visas and entered Australia [in] June 2009.
The review applicant was the primary student visa holder, studying [a particular course] and completing her qualifications. She later obtained work in [a business], where she was employed for about two years. The second-named applicant was also employed for about two years working in a [a business]. Neither applicant has been employed since then, having been without work rights since May 2012.
The review applicant told the Tribunal that she was living in [a particular Australian suburb] and walking around the neighbourhood looking for work when she walked past the Jehovah’s Witness Kingdom Hall in [Suburb 1]. She said that she experienced a sense of peace when she saw it. Subsequently, she obtained work at a nearby [business] and found herself speaking with one of the [other employees] there who was, she says, a Jehovah’s Witness. He gave her reading material and took her and her husband to a Kingdom Hall in [Suburb 2] where he was affiliated.
Other Jehovah’s Witnesses at the Hall in [Suburb 2] told her that there was a Hall closer to her in [Suburb 1]. The review applicant identified the [Suburb 1] Kingdom Hall as the building she had seen during her job search.
She increasingly began to be involved with the Jehovah’s Witnesses. Sometime in early 2011 her housemates became aware of her involvement, she told the Tribunal. The review applicant told the Tribunal that the house she and her husband lived in was leased by her husband’s brother in [Australian City 1] and that the review applicant, her husband, and the other residents all sub-leased the house from him. The other housemates were Indian nationals from villages near to the home villages of the review applicant and her husband.
Evidence as to how the families of the review applicant and her husband learned of the review applicant’s involvement with Jehovah’s Witnesses is a matter of contradictory evidence. On one account provided by the review applicant, it appears that the review applicant’s housemates gathered from the clothing she was wearing, her regular outings on Sundays, and the visitors that would come to the house that the review applicant was involved with Jehovah’s Witnesses. There was not consistent evidence as to whether the housemates confronted the review applicant or her husband. On another version of events, the housemates did not confront either of the applicants, instead telling the second-named applicant’s cousin, who also lived in [another Australian city], and the second-named applicant’s brother, who lived in [Australian City 1]. They may also have told her husband’s family in India or the family in India may have been told by one of the local relatives. Again, the review applicant’s evidence in this respect was not consistent.
The second-named applicant’s family is said to have told the review applicant’s family. Both families pressured both applicants with the aim of causing the review applicant to cease her involvement with the Jehovah’s Witnesses. The review applicant told the Tribunal that she ceased contact with her family after a few months of them learning of her involvement with Jehovah’s Witnesses.
She told the Tribunal that she has not had contact with her family for at least two years and they have said that she is ‘dead’ to them. Her family are tenant farmers.
The second-named applicant’s family continued to pressure him to direct his wife to cease her involvement or to leave his wife. At some point, the situation escalated when the second-named applicant’s brother threatened the review applicant. There were also physical threats from the brother and threats from the cousin. Nevertheless, neither party claimed to have reported the threats or any incidents to police. When asked why they did not, they indicated that they moved house shortly thereafter and thus felt safe once again.
The second-named applicant told the Tribunal that he last had contact with his brother in [Australian City 1] 18 to 24 months prior. He does not have contact with his family, including his cousin here.
The review applicant asserts that she cannot return to India because she fears being persecuted by her family and she fears that she will not be able to practice her religion free of harassment, persecution, and prosecution. She fears her husband’s family because she will be seen to have been ‘converting’ him. Although the second-named applicant has attended the Hall, his involvement in the religion is limited, on his evidence.
45. The review applicant gave no evidence that her family had threatened to harm her should she return, only that they had indicated they wanted nothing more to do with her.
The representative’s submissions argue that the very nature of being a Jehovah’s Witness involves evangelical-style preaching resulting, which would result, he asserts, in the review applicant facing harm by simply practicing her religion. He referred to country information regarding attacks and anti-conversion laws.
The review applicant has provided statements from elders of her church as to the program of induction she has undertaken, which resulted in her baptism in November 2013.
I note that in considering her claims under the refugee provisions, the RRT in 2012 accepted that the applicant had been attending the Kingdom Hall (she had not yet been baptised), but found that the conduct was engaged in for the sole purpose of creating, as well as strengthening her claim to be a refugee. The RRT then determined that the conduct must be disregarded pursuant to s.91R(3) of the Act.
COUNTRY INFORMATION
Jehovah’s Witnesses
In India, the total number of Jehovah’s Witnesses are estimated to be about 45,000 of the over the general population of India of around 1.3 billion. Jehovah’s Witnesses have been in India since 1905 and while their publications were banned for a three-year period in the 1940s, they have been recognised through a legally registered entity in India since 1978.[20]
[20] DFAT Country Report – India 15 July 2015
The population of the state of Punjab is about 28 million. Of these, less than 1% are Christian and Jehovah’s Witnesses make up only a small percentage of the Christians in the State.[21]
[21] DFAT Thematic Report – Indian State of Punjab, 7 December 2016 at [3.16]
Article 15 of India’s Constitution prohibits discrimination against any citizen on the grounds of religion. Article 25 guarantees the right to freely profess, practise and propagate religion (subject to ‘public order, morality and health’) and Article 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. According to the US State Department’s 2014 report on religious freedom—the most recent report available—there are no requirements for registration of religious groups in India, and the law provides minority community status for six religious groups: Muslims; Sikhs; Christians; Parsis (also known as Zoroastrians); Jains; and Buddhists. Minority community status confers certain rights such as the right to establish and administer educational institutions.[22] In addition, six states in India (Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Madhya Pradesh, Orissa, and Rajasthan) have passed laws which prevent religious conversions ‘by inducement or by any fraudulent means’ and some states have laws requiring the registration of religious conversions. The 2014 USCIRF report stated that these laws had resulted in few arrests and no convictions, but had created a hostile atmosphere for religious minorities, particularly for Christians.[23]
[22] DFAT Thematic Report – Indian State of Punjab, 7 December 2016 at [3.3]
[23] DFAT Country Report – India 15 July 2015 [3.6]
According to the Jehovah’s Witnesses’ website, Witnesses are generally free to worship without hindrance in India.
53. The overall trend of violence or harm to Jehovah’s Witnesses in India has decreased in recent years.
Jehovah’s Witnesses - 2012
54. With respect to 2012 the US Commission on International Religious Freedom (USCIRF) report on India refers to Jehovah’s Witnesses reporting
…an increase in mob attacks over the last two years, especially in Karnataka. The community reports that mobs of 20 to 50 individuals regularly harass and occasionally physically assault congregants or destroy religious property. [24]
[24] US Commission on International Religious Freedom (USCIRF) 2013, USCIRF Annual Report 2013 – Tier 2: India, 30 April, UNHCR Refworld < <CXC28129413632>
55. The report mentions that
in July 2012, 15 young men beat up four Jehovah’s Witnesses in Madikeri, Karnataka state, and took them to a police station, where the Jehovah’s Witnesses were charged with “insulting the religion or religious beliefs of another class.” The Jehovah’s Witnesses were later released on bail.[25]
[25] Ibid.
Jehovah’s Witnesses - 2013
The 2013 Jehovah’s Witnesses’ yearbook also reported that:
Jehovah’s Witnesses in India continue to endure mob violence while engaging in their ministry. Men, women, minors, and even a 60-year-old grandmother and an 18-month-old baby have experienced verbal and physical assaults. Some have been stripped of their clothing and even threatened with death. Police inaction and prejudice have added to the victimization of Jehovah’s Witnesses. Instead of prosecuting the perpetrators, the police have incarcerated the Witnesses under falsely based criminal charges. Those arrested are often subjected to unreasonable bail conditions and verbal and physical assaults by the police and are refused medical attention, food, and water. Thereafter, they endure years of litigation as criminal defendants before they are exonerated. Several human rights complaints have been filed with the National Human Rights Commission in the hope that it will come to the aid of our brothers.[26]
[26] Watchtower Bible and Tract Society of Pennsylvania 2013, 2013 Yearbook of Jehovah’s Witnesses, pp.35-36 < <CIS36DE0BB2402>
57. The US Department of State report on religious freedom in India for 2013 indicates that
‘Court hearings against a member of the Jehovah’s Witnesses for offending religious sentiments continued throughout the year in Vidya Nagara, Shimoga in Karnataka state. Police registered a complaint against the individual following a March 2012 attack by a mob of approximately 20-30 persons on four Jehovah’s Witnesses who were engaged in proselytizing’.[27]
[27] US Department of State 2014, International Religious Freedom Report for 2013 – India, 28 July, Section II < <OG54B544677>
In relation to the year 2013 the yearbook indicates that while Jehovah’s Witnesses in India continued ‘to experience opposition in different parts of the country’ they had ‘not been detained or had to face false charges as in the past’. It is stated in the report that:
Jehovah’s Witnesses in India continue to experience opposition in different parts of the country. However, they have not been detained or had to face false charges as in the past.[28]
[28] Watchtower Bible and Tract Society of Pennsylvania 2014, 2014 Yearbook of Jehovah’s Witnesses, March, p.35 < <CIS28437>
Jehovah’s Witnesses - 2014
A March 2015 report by the Evangelical Fellowship of India and Alliance Defending Freedom India refers to the arrest of two Jehovah’s Witnesses on allegations of conversion in Indore during August 2014. According to the report:
Two preachers from the Jehovah Witness were arrested on allegations of conversion on August 17, 2014 at Sukhiya, Indore, which was also the day of the Hindu festival Janmashtami. They were taken to the Harsh Nagar Police Station where a (an) FIR was filed and they were charged under the MP Freedom of Religion Act, 1968 under Sec. 3 and 4. A mob of over 400 people had gathered outside the police station chanting slogans against the pastor. They were bailed out by Christian workers next day morning.[29]
[29] Evangelical Fellowship of India and Alliance Defending Freedom India 2015, Hate and Targeted Violence against Christians in India: Report 2014, March, p.16 < <CISEC96CF1421>
Jehovah’s Witnesses – 2015 and 2016
Neither the 2015 nor 2016 Jehovah’s Witnesses yearbook mentions any incidents of violence against Jehovah’s Witnesses in India.’ Similarly, neither the 2016 US Commission on International Religious Freedom report on India nor the most recent US Department of State report on religious freedom in India mentions incidents of violence involving Jehovah’s Witnesses.
Women
According to a report by the Department of Foreign Affairs and Trade (DFAT) relating to Punjab, sexual harassment is highly prevalent in Punjab (as in other states). Several credible diplomatic and human rights sources told DFAT that women in Punjab are highly likely to regularly face some form of sexual harassment in public, including inappropriate staring, touching, verbal harassment or worse. In extreme cases, women who have rejected the advances of men may be subjected to serious assault, including possible acid attacks. For example, six teenage girls reportedly had acid thrown over them while walking home from school in Gurdaspur district in March 2016. The attacker had repeatedly harassed one of the girls over a long period of time prior to the attack. [30]
[30] DFAT Thematic Report – Indian State of Punjab, 7 December 2016 at [3.30]
DFAT assesses that women in Punjab face a high risk of domestic violence and sexual harassment, and a moderate risk of serious sexual assault. DFAT further assesses that women in Punjab face a high risk of societal discrimination throughout their lives.[31]
[31] Ibid [3.34]
Relocation
According to DFAT’s Thematic Report on Punjab, the state has a long history of migration, both within India and overseas. There are no significant legal or administrative barriers to internal migration, and many Punjabis (particularly young people) move to other parts of the country for education and employment opportunities. Employment and education opportunities are the general motivation for internal relocation from Punjab to other parts of India. There are regular domestic flights and trains in and out of Punjab. While road safety is a problem right across India, the roads connecting Punjab with major city centres such as New Delhi do not face a significant risk of security incidents.[32]
[32] Ibid at [5.8]
DFAT assesses 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.[33] Millions of Indians successfully relocate within India either temporarily or permanently every year, and it is possible to obtain work in the large informal sector without papers. In general, DFAT assesses that there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence.[34]
[33] Ibid [5.9]
[34] Ibid
Treatment of Returnees
According to DFAT’s Thematic Report on Punjab and to its 2015 Country Report on India, DFAT is not aware of any credible reports of mistreatment of returnees by Indian authorities, including failed asylum seekers. India does not have a centralised registration system in place which would enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories within the country. A February 2015 report by the UK Home Office said that the possibility of the police, or any person or body being able to locate, at the behest of an individual’s family, a person who had fled to another state or territory in India, was remote.[35]
[35] Ibid at [5.21]
FINDINGS
The Tribunal must determine whether, in all the circumstances, there are substantial grounds for believing that, as a necessary and foreseeable consequence of her removal from Australia to India, there is a real risk that the review applicant will suffer significant harm. The Full Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[36] The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if she has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason. In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:
[36] MIAC v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342], as reflected in the Complementary Protection Guidelines: see Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, section 32, as re-issued 21 May 2015.
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin. [37]
[37] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.
The High Court’s decision in Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is “well-founded” and it can be reached even if the event feared is “unlikely to occur” and has only a “10 per cent chance” of occurring, however, the chance of it occurring must be more than “far-fetched” or “remote”,[38] and the evidence must indicate “a real ground for believing that the applicant … is at risk of persecution”; a fear “is not well-founded if it is merely assumed or if it is mere speculation”.[39]
[38] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 per McHugh J.
[39] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.
The evidence before the Tribunal does not indicate that the review applicant has been subjected to adverse treatment in India that would constitute persecution. Instead, her claims arose after she came to Australia. The courts have made it clear that “proving persecution in the past is not an essential step in an applicant demonstrating that he or she has a well-founded fear of persecution.”[40]
[40] See Abebe v The Commonwealth (1999) 197 CLR 510 at [192] per Gummow and Hayne JJ.
She claims she would wish to continue her practice of Jehovah’s Witness in India but fears she would be persecuted by her family, community and the Indian authorities. At issue is whether, in her particular circumstances, there is a real risk she would suffer significant harm if she is returned to India.
Despite maintaining some concerns about the review applicant’s credibility and motivation for her involvement in the Jehovah’s Witnesses, I accept that she has been baptised and would likely seek to proselytise, in line with her religious beliefs, if she were to be returned to India.
There is no indication in the evidence to the delegate, the RRT or this Tribunal that her family have threatened to harm her; only that, as a result of her religious beliefs, she should ‘stay away’ form them and that she is ‘dead’ to them. I accept that in India, and in Punjab in particular, the family’s honour may considered diminished by her religious conversion. I consider that, based on her lack of contact with her family in recent years, she would likely stay away from them, thereby limiting any adverse effect on her family’s honour.
I note that two members of the second-named applicant’s family here in Australia are said to have threatened the review applicant and the second-named applicant. However, the Tribunal considers that the applicants must not have considered the threats to be of sufficient seriousness or significance or indicative of significant harm as neither applicant reported these threats to the police. I also maintain concerns about the applicants’ evidence in this regard, given the contradictory details of these threats.
The second-named applicant’s family in India were said to have ‘pressured’ him to leave his wife or to influence her away from her religious activities. Again, there is no indication that those family members sought to threaten the applicants with significant harm.
The Tribunal has considered whether there is a real risk of significant harm from the community members in either of their villages. Religious intolerance, particularly with respect to proselytising, may be the reaction of the community. Indeed, the very nature of the practice of evangelising by knocking on the doors of strangers, puts a Jehovah’s Witness at risk of harm each and every time he or she engages in such conduct.
The Tribunal is prepared to accept, and does accept, that, on the information before it, there is a real chance the review applicant would suffer a degree of social ostracism and discrimination, which would include verbal abuse and harassment, from conservative-minded Hindus if they came to know she had been a Hindu and had changed her religion and become a Jehovah’s Witness. However, the information does not indicate or support a finding that the chance of her facing significant harm for those reasons and in those circumstances is more than remote. The Tribunal has had regard to the reports of apparent increased tolerance of Witnesses in India disseminated by the Jehovah’s Witnesses themselves. This tolerance is particularly prevalent in large cities, where reports indicated people were more progressive.
As noted in the independent country information set out above, while there have been reports of incidents from time to time throughout India, none have been reported in the last two years and the vast majority of Indians are tolerant and accepting of other religions. Further, there are large populations of Christians throughout the country, and, in the Tribunal’s view, the available independent information does not support a finding that there is a real risk of the review applicant suffering significant harm for reasons of her practice of inviting strangers to have a conversation about religion in an attempt to try and persuade them of the correctness of her beliefs, or simply because she is, and identifies as, a Jehovah’s Witness.
Reference was made in submissions to anti-conversion laws in some Indian states. Those laws are intended to prohibit conversion of individuals in India (by others, in India) through force or fraudulent means. The review applicant converted outside of India and her conversion would not fall within the purview of these laws.
I note the argument that as a practising Jehovah’s Witness, the review applicant could fall foul of these laws were she proselytising in a state which had enacted the laws, but for reasons discussed below, I consider that the review applicant can relocate to avoid the effect of these laws.
The representative has made submissions that upon the review applicant’s’ return to India, she would face unemployment, homelessness and poverty, particularly without family support structures. In order for unemployment, homelessness and poverty to constitute an inhuman or degrading condition of existence, it must be extreme and in violation of Article 7 of the ICCPR, such as through some vulnerability vis-à-vis the State. The representative has asserted that the review applicant has particularly vulnerability as a woman.
There is no indication that the review applicant faces real risk of extreme unemployment, homelessness and poverty as a woman in India, particularly given her marriage to the second-named applicant, her language ability, her employment history and her education.
The representative has also made submissions that the review applicant would face degrading treatment in that she might be forced to undergo medical treatment without her consent and contrary to her religious beliefs. Assuming the forced medical treatment would be undertaken absent conscious and informed consent and for a medical or therapeutic necessity (and there is nothing before me to indicate that medical treatment in India would be forcibly done otherwise), I do not consider this to constitute inhuman or degrading treatment.
The representative’s submissions and country information focused on the availability of medical care and the availability of alternatives to blood transfusions, as well as a lack of awareness of the beliefs of Jehovah’s Witnesses with respect to medical treatment. These submissions do not support an argument of forced medical treatment. Just as I do not consider that the review applicant’s deprivation of her economic, social and cultural rights constitutes inhuman or degrading treatment, I do not consider that lack of availability of certain medical treatments amount to significant harm.
To the extent that the review applicant faces any risk of harm, I consider that this risk could be ameliorated by her relocation to another part of Punjab or another part of India. I further consider that it would be reasonable for the review applicant to relocate in the circumstances that she is an educated, married woman. She has the protection of her husband. She and her husband speak languages most widely spoken throughout India, being Punjabi and English.
As discussed with the applicants at the hearing, India is a populous country with no central registration or national identification system. The chance of the applicants being pursued or located by a family member, relative or community member from their home areas appears to be remote and far-fetched.
While some level of tracing could be done through the Jehovah’s Witness communities, the Tribunal notes that there are over 600 congregations across India. There is nothing to indicate to the Tribunal that a family member, relative or community member would be so aggrieved by the applicants’ return to India, despite their settling in another place, that they would seek to make these efforts to locate the applicants. The applicants’ claims in this regard are all based on speculation and, in the Tribunal’s view, there is no clear evidence to indicate that family members, relatives or community members from their home areas would actively take steps to locate them and subject them to significant harm outside of their own villages.
With respect to the anti-conversion laws discussed above, I note that these laws currently exist in six states. They do not exist in Punjab and twenty-two other states. Notably, they do not exist in Haryana or Delhi, states where Punjab is particularly prevalently spoken and to which I consider the applicants could reasonably relocate.
Having considered the applicant’s claims singularly and cumulatively, the Tribunal does not accept there is a real risk the review applicant would suffer significant harm outside the Punjab as a necessary and foreseeable consequence of being removed from Australia to India. The Tribunal therefore finds the applicant does not satisfy the criteria set out in s.36(2)(aa).
As the review applicant does not meet the criteria set out in s.36(2)(aa), the second-named applicant cannot meet the criteria set out in 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. Nor is there any suggestion that the review applicant is a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a Protection visa
Second-named applicant
Both the review applicant and second-named applicant indicated at the hearing before this Tribunal, as well as before the delegate and the RRT, that the applicant husband did not have any substantive protection claims. However, the Tribunal has considered whether he faces a real risk of significant harm, other than as a member of the review applicant’s family unit. The Tribunal has had regard to all of the material that has been submitted. The Tribunal is not satisfied on the evidence before it that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the second-named applicant being removed to India, there is a real risk that he will suffer significant harm.
CONCLUSIONS
The Tribunal has considered the applicants’ claims against India as their country of nationality. 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) (aa) for a Protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(c). As they do not satisfy the criteria for a Protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Suzanne Carlton
Member
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