1514028 (Refugee)

1514028 (Refugee) [2017] AATA 1685 (19 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514028
COUNTRY OF REFERENCE:                  India
MEMBER:Tigiilagi Eteuati
DATE:19 September 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 19 September 2017 at 3:51pm

CATCHWORDS
Refugee – India – Protection visa – Social group – Domestic violence victim – Single women – Threat of harm from family and in-laws – Credibility issues
LEGISLATION
Migration Act 1958, ss 5, 5AAA, 36, 64, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa [in] August 2014 and the delegate refused to grant the visa [in] September 2015.
The applicant appeared before the Tribunal on 6 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
The 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: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-41. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of 'practicable', to expect him or her to seek refuge in another part of the same country. What is 'reasonable' in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm.
Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
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: 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': MIAC v MZYYL [2012] FCAFC 147.
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.
CLAIMS AND EVIDENCE
In her protection visa application the applicant provided the following answers:
“44. WHY DID YOU LEAVE THAT COUNTRY?
I left India to join my then husband who was of Indian descent (Punjab) and a citizen of Australia.
We married each other according to our customs in Punjab [in] February 2011. Our marriage was an arranged marriage and after that I moved to his parents' house.
We lived together for a few months before he left to Australia where he initiated my application for a Partner visa which was lodged [in] April 2011. The visa was granted [in] November 2011.
On the receipt of my Partner visa I left India to join my husband and arrived in Australia [in] December 2011.
45. HAVE YOU EXPERIENCED HARM IN THAT COUNTRY?
When I was living in my in-laws' house I have experienced discrimination and their preferential treatment of their own children. I also experienced harassment, verbal abuse and intimidation when I was under their care.
46. What do you fear may happen to you if you go back to that country?
After a long wait to join my husband to live a happy life together, when finally arrived in Australia, at the airport my husband was very aggressive and violent towards me and verbally abused me and rejected me.
He was full of anger and animosity. I had come all this way to start a happy life with him in Australia. His last words to me before he left India for Australia were he loved me and that he would miss me; but upon my arrival he was behaving very differently. He was angry and violent towards me and that was very upsetting and frightening to me.
He wanted first to take me home. He was on the phone with his parents and then he changed his mind and didn't want to take me. I was very confused and shocked. I was also frightened that if I go with him he would be so angry that would kill me or harm me. I decided not to go with him that night to let him cool down, and then to join him the following day.
The following day I tried many times to contact him, but he didn't answer his phone and then he changed his number so that I couldn't reach him.
He filed for divorce a few days later. That caused a huge emotional and psychological upset and problem for me. It brought me depression and mental illness in the following months.
In India it did also severely impact my family who were abused and harassed by my ex-husband's family members. The [ex-husband’s] family had asked my parents for more dowry earlier and that was refused by my parents who are poor. But after this incident they approached them and asked for money to be paid to them by my family for the shame that I had caused their family and they threatened to destroy me and to kill me.
Also my family became very upset with me; they felt that I had let them all down and that I had brought shame upon them. My brothers as well as my parents were very angry with me, and saw me as the cause of the divorce.
There were a number of incidents where the two families had verbal fights in the neighbourhood about the divorce that resulted in further threats against me.
While I was living with my ex-husbands family before travelling to Australia, they mistreated me all the time with verbal abuse, by not giving me clothing or sometimes food. They also took my gold from me and at times treated me as a servant in their house^-which I tolerated. Now that their son has divorced me they are showing much greater aggression towards me.
I am fearful that if I return to India they will attack me using gun, or will pull me under the train with rope. Or their young male members of the family may plan to gang-rape me. These type of revenge happen in India all the time. It is done for the honour of the family and people take pride in that.
I am also scared that they may pull me by my hair in the streets, kick me in the face and body to break my bones and then pour oil on me and burn me alive.
When this type of honour killing is happening no one attempt to interfere or stop the action. People stand to watch as they believe in that. In a male dominating culture such as mine the right of women is undermined all the time. When this happens no one comes to your rescue. Even your own family may turn against you. I have [brothers]. They can easily be provoked by their friends to bring honour back to the family by destroying me.
I am fearful of all these as these happen to women just like me.
47. WHO DO YOU THINK MAY HARM/MISTREAT YOU IF YOU GO BACK?
The people who may harm me include my ex-husband's family, relatives and friends, and my own family members, our relatives and friend I am also fearful of our neighbours and people who know me and know what has happened. I am coming from a small place, where people know each other and interfere in each other's lives and take pride in keeping the honour of the community intact. I am fearful that the youth of the community will hurt me as they want to teach a lesson to their daughters or sisters not to follow my example. I will not be protected.
48. WHY DO YOU THINK THIS WILL HAPPEN TO YOU IF YOU GO BACK?
Unfortunately this type of oppression and violence towards women is an acceptable behaviour in my culture and it has been happening for centuries.
Indian culture is male-dominated culture especially in small townships where people are often uneducated. My family is a poor and uneducated living from shopkeeping. My ex-husband's family are also uneducated and very male oriented, dictatorial and oppressive. I came to know their feelings towards me during the time I was living with them. The neighbourhood and people we know are also of the same characteristic. For them the culture and tradition including oppression and violence toward women is the acceptable way of life.
What I fear of happening to me is happening to women like me every day somewhere in India. This is actually happening and I think it is very likely that will happen to me too.
49- DO YOU THINK THE AUTHORITIES OF THAT COUNTRY CAN AND WILL PROTECT YOU IF YOU GO BACK?
This is occurring every day in India. The newspapers and TV is filled with this type of news. The Government has no effective way to stop that from happening as it requires a change of mentality and culture. The Government is powerless to do that.
Women is raped, gang-raped, bashed, burnet and killed in public and no one stop that from happening as people either support that type of male violence or are fearful for their own sake.
Even if you go to police, there is no security for women. Police can also rape the victim without any repercussion. I will not be protected by the authorities in India.”

The applicant also provide a number of statements in support of the applicant’s application including statements from family members of the applicant. The applicant’s representative also provided submissions and country information to the Tribunal. All of this material has been considered carefully by the Tribunal.
At the hearing before the Tribunal the applicant claimed that she and her husband were married [in] February 2011 in [a] town in Ferozpur District of the Punjab in India.
The applicant claimed that the marriage was arranged and that both she and her husband were Manglik as they were born under the same astrological conditions. The applicant explained that being a Manglik was bad luck and that Mangliks could only marry other Mangliks.
The applicant said that her husband had been living in Australia when the marriage was arranged but returned to India for the wedding.
The applicant indicated that she was aware of the Dowry arrangements at the time of the marriage. She said that her family spent some [amount] Lakh, or approximately AUD$[amount] on the marriage including the wedding costs and dowry items such as a bed, a television, a mirror, a cabinet, gold and clothing. She said that her parents took out a loan for the money for the wedding and dowry.
The applicant said that she went to live with her husband at her husband’s family’s home on the day of the wedding. She said that the couple had planned on a honeymoon together a month after the wedding but that her mother in law interfered so as to make this impossible.
The applicant said that 2 or 3 weeks after the wedding her husband’s young nephew was playing in the house when the ball he was playing with disappeared under the refrigerator The applicant said that the young boy began to cry and the applicant’s mother in law began to shout abuse at the applicant and called for the applicant’s husband. She said that when her husband appeared he was angry, presumably because he thought she was responsible for his nephew crying. The applicant said that her husband grabbed her by the hair and tried to slap her but she stopped him by grabbing his hand.
The applicant said that her husband and his mother taunted her and swore at her. She said that this was the only time her husband had been violent with her. The applicant said that she telephoned her brother and asked him to take her to her family’s home and he did so. She said that her husband asked her to return two or three days later and she returned after three or four days.
The applicant said that her mother in law caused arguments between her and her husband. She said that she believed that her mother in law was causing trouble by trying to make the applicant look inferior in her husband’s eyes. She said that she believed that her mother in law was doing this because she did not believe that the applicant’s family had paid a sufficient dowry to her husband’s family.
The applicant said that her husband returned to Australia in April 2011 and lodged her Partner visa application. She said that after her husband returned to Australia, their relationship was good. However, she said that her mother in law began to treat her more harshly. She said that her mother in law dismissed the family servant and expected the applicant to perform the servant’s tasks. She said that she was treated poorly; that she was not bought clothing and sometimes was not given enough food. The applicant said that as a result of her treatment she decided to spend half of each month with her own family. She said that she discussed this with her husband.
The applicant indicated that each time she returned to the home of her in laws, she was expected to bring gifts back for them. The Tribunal asked the applicant why she thought that her in laws expected her to bring them gifts and she said that she knew this because it was part of her culture.
The applicant said that, in June or July 2011, two months after her husband had returned to Australia, her husband’s family began to expressly request money from the applicant and her family. She said that they asked the applicant and then her family for [amount] Lakh, or approximately AUD$[amount].
The applicant said that her parents told her husband’s family that they were unable to provide more money and that what they were able to provide, they had provided at the time of the wedding. The applicant said that her husband’s parents did not accept her parents answer and continued to request more money.
The applicant said that her visa was granted in November 2011 and that she left for Australia [in] December 2011. She explained that her flight was delayed in Bangkok because of flooding in the Philippines and she used a fellow passenger’s telephone to call her husband to inform him of the delay and of her new arrival time. She said that her husband indicated that he would not collect her from the airport but she thought that he was saying this in jest.
The applicant said that when she arrived at the airport in [Australia] her husband appeared to be very angry and asked her why she had come to Australia without giving money to his parents. The applicant said that her husband indicated that she could not leave the airport with him and that, if she tried to do so forcibly, he would kill her. The Tribunal notes that in her application the applicant does not mention that her husband threatened to kill her at the airport and claimed that when she arrived at the airport her husband initially wanted to take her home but only changed his mind after speaking with his parents.
The applicant said that she was stressed and shocked and started crying. She said that she used her husband’s telephone to call her parents to ask what was going on. She said that her parents told her that they had received calls from her husband and his parents demanding payment of more money but that she should not worry about the situation and that everything would be sorted out in a few days.
The applicant said that her parents had arranged for three of her cousin’s male friends to pick her up from the airport. She said that, while she was arguing with her husband, police officers approached them and began speaking with her husband but she did not understand what was being said. She said that she told the police that her husband wanted a divorce.
The Tribunal asked the applicant whether she feared harm from her husband at the time and she said that she did. The Tribunal asked the applicant why she did not tell the police that her husband had threatened to kill her. The applicant said that she had only just arrived in Australia and was scared when the police approached. The Tribunal referred to the delegate’s decision in which it was recorded that there was no mention in the police report of the applicant being distressed or being threatened. The applicant indicated that the police should have got an interpreter for her suggesting that the reason she failed to tell the police about the threat was that she did not have the English language skills to tell the police of the threat.
The Tribunal reminded the applicant that she had said that she had been able to tell the police that her husband wished to divorce her but did not tell them of any threat against her. The Tribunal asked the applicant why she did not ask one of the three men, who had arrived to collect her, to tell the police that she had been threatened. The applicant said that her mind was “blocked” and that she had not come all the way to Australia to be separated from her husband. The Tribunal reminded the applicant that her evidence was that she decided to leave with the three other men and not her husband. The applicant said that she had only done so because her husband had threatened to kill her.
The Tribunal indicated that it was concerned with the applicant’s story and that it did not appear to make sense that her husband had told her previously that he would not collect her and he had said that he did not want to take her home when they were at the airport seeing that he had come to the airport. The applicant said that her husband thought that if he did not attend the airport that she may complain that he did not attend the airport to collect her. She said that he was too clever to take the blame for not picking her up from the airport and that she may complain if he wasn’t there. The Tribunal indicated that this did not seem to make sense and asked the applicant who her husband thought that she would complain to. The applicant said that perhaps her husband was concerned that she would complain to police.
The Tribunal indicated that there was some suggestion in the evidence that the applicant had provided previously that her husband’s mother did not wish for the applicant’s husband to collect the applicant from the airport and had told the applicant’s husband that he had to choose between his mother and the applicant. The suggestion was that the applicant’s husband’s mother would disown her son if he collected the applicant from the airport.
The applicant agreed that this was the case. The Tribunal indicated that it did not seem to make sense that the applicant’s husband had come to the airport in circumstances where he did not want to collect the applicant and his mother said that she would disown him if he collected her from the airport.
The applicant indicated that husband had treated her in a way which made her not want to leave the airport with him. She said she planned to reunite with him the following day. The Tribunal asked the applicant why she thought that this was going to be possible when she decided to leave the airport with three unknown men. The applicant said that she had no other option as her husband treated her in a way which suggested he did not want her to leave with him.
The applicant said that she had no further contact with her husband after they left the airport. However, she said that he had contacted her parents. She said that her husband had told her parents that he would find her and kill her if she did not return to India. The Tribunal asked the applicant why her husband would call the parents to threaten to harm the applicant if he wanted nothing to do with her and she replied that he was jealous. Tribunal indicated that none of the statements from her parents had indicated that this had occurred. The applicant then said that her parents were also threatening to kill her if she returned to India.
The Tribunal asked whether the applicant feared that her husband would kill her if she remained in Australia and she said that she did. The Tribunal asked the applicant why she wished to remain in Australia if she feared that her husband, who lived in Australia, would kill her. The applicant then said that she feared that her husband would kill her in India.
The Tribunal indicated that the applicant had provided the Tribunal with a statutory declaration dated 4 June 2012 which appeared had been provided in relation to her application for a Partner visa. The Tribunal indicated that in that statement, the applicant had claimed that she was the victim of serious violent crimes including sexual crimes, at the hands of her husband, whereas before the Tribunal the applicant claimed that the only time that her husband had been violent towards her was when he had attempted to slap her two or three weeks after they had married. The Tribunal pointed out that in her statement she had said that her husband had slapped her and pushed her up against the wall whereas before the Tribunal she had said that her husband had tried to slap her but that she had stopped him from doing so. The Tribunal said that in relation to the protection visa the applicant had tried to give the impression that prior to arriving in Australia, the applicant and her husband were in a loving, non-violent relationship.
The applicant appeared to provide a number of explanations for this apparent inconsistency. First she claimed that she did not want to mention the claims in the statement as she felt ashamed about the sexual violence. The Tribunal asked the applicant whether it was true that she had been repeatedly raped by her husband and she said that it was true.
The Tribunal reminded the applicant that she had been asked repeatedly during the hearing whether she suffered harm from her husband and she had said that other that the one occasion when her husband had attempted to slap her there had been no violence. The applicant then appeared to blame previous interpreters for the inconsistency in this aspect of her evidence. The Tribunal reminded the applicant that the claims had been made in a statutory declaration made on 4 June 2012. The applicant then claimed that the reason for the inconsistency was that she had already provided written evidence of the claims so did not feel that she needed to disclose the information verbally at the hearing.
The Tribunal indicated that this explanation did not appear to make sense but the applicant insisted that this was what had occurred. The Tribunal asked the applicant why, if she had been treated so violently by her husband she was so keen to join him in Australia. The applicant said that it was part of her culture. She said that it was also part of her culture for her to live with her in-laws once she was married. The Tribunal reminded the applicant that she had given evidence that after her husband returned to Australia she spent half of her time at her own family’s home as she had said that she objected to the way she was treated by her in-laws. The Tribunal again indicated that it was difficult to believe that if her husband had treated her so badly, that she would be so excited to join her husband in Australia. The applicant repeated that although she was treated badly she had to follow her culture and did not wish to embarrass her family or her husband’s family.
The Tribunal indicated that it appeared inconsistent that the applicant was willing to endure appalling treatment by her husband in order to adhere to her culture and yet she spent half her time with her family against her culture and when she arrived in Australia decided to depart from her culture by leaving the airport with three unknown men.
The Tribunal indicated that the fact that the applicant had not mentioned being harmed at the hearing and had given evidence that she was excited about being reunited with her husband in Australia may indicate that the applicant was never physically harmed by her husband and that she had fabricated these claims previously in order to obtain a Partner visa on the basis of suffering domestic violence. The applicant disagreed and claimed that the harm that she had claimed in her previous statement had occurred.
The Tribunal indicated that a further issue that the Tribunal had with the applicant’s evidence that her in laws wished to harm her was that her in laws had every opportunity to harm her in the past, especially when she was residing with them, and yet had not done so. The applicant claimed that she would be harmed now because she had caused them shame as her parents had reported her in laws to the police. The Tribunal pointed out that it was her parents, not her, who had reported her in laws to the police, taken legal action against them and refused to pay additional dowry payments and yet they had not been subjected to serious harm by the in-laws. The applicant made no comment.
The Tribunal indicated that it had real problems with the various statements provided by her parents. The Tribunal gave the example that the first statements provided by the applicant’s parents indicated that the applicant was living happily with her husband in Australia until her husband’s family demanded additional dowry payments, whereas the applicant gave evidence at hearing that she had never resided with her husband in Australia. The applicant had said that the problems with her parents’ statements were due to typing mistakes. The Tribunal indicated that it would find this very difficult to accept. The applicant then said that her mother’s original statement had been submitted in error and she could not say whether the contents of that statement were true or not.
The Tribunal put to the applicant country information to the effect that document fraud was prevalent in India. The applicant said that her parents’ statements were officially stamped, suggesting that the contents of the statements were true. The Tribunal reminded the applicant that she was asserting that the contents of her parent’s original statements were untrue.
The Tribunal also indicated that her representative had described a process for the creation of the statements which strongly suggested that the contents of the statements could not be relied upon. The Tribunal indicated that it had been told by her representative that the statements were written in English without translation and the evidence before the Tribunal was that the applicant’s parents could not speak English and were completely illiterate. The applicant said that her parents had provided the information in Punjabi and this was recorded in writing in English. The applicant’s representative had previously indicated that the mother’s original statement should be disregarded as it contained incorrect information owing to the way in which the statements had been made where the people who write the statements write whatever they want and that deponents are at the mercy of the people creating the statements. He provided an anecdote of witnessing a woman making a statement in this way which was not being accurately recorded by the person who was writing the statement.
The Tribunal indicated that in the court complaint made by the applicant’s father it was recorded that the applicant’s father claimed to have approached the applicant’s husband’s family after she had arrived in Australia to request that the applicant’s husband and his family stop harassing her. This appeared to be inconsistent with the applicant’s evidence at the hearing that she never resided with her husband in Australia and had no contact with him or his family after they separated at the airport. The applicant was unresponsive to the apparent inconsistency.
The Tribunal indicated that the court document recorded that the applicant’s father’s complaint related to the applicant’s in laws’ refusal to return the dowry he had paid. The Tribunal indicated that there was nothing in the document about the applicant’s in-laws threatening the applicant’s family with harm. The applicant told the Tribunal that her mother had told her that her in laws had threatened her life.
The Tribunal asked the applicant who she feared in India. The applicant said that she feared her father, her brothers, her in-laws, neighbours and her relatives.
The Tribunal indicated that there was nothing that the applicant had said at the hearing which indicated that her father or brothers would harm her. She said that her father and brothers wanted to kill her because she was an insult to her family and her family’s neighbours were pressuring her family because they were concerned that their daughters may turn out like the applicant. The Tribunal asked the applicant how the neighbours would know what had happened between her and her husband and she said that they would find out. The Tribunal asked the applicant again how the neighbours would discover what had happened between her and her husband, the applicant was again unresponsive and said that her family did not accept her and had banished her from their property.
The Tribunal asked the applicant why she thought that her father and brothers wished to kill her and she said that her mother told her in 2014 that this was the case. The Tribunal asked the applicant why her father and brothers decided in 2014 that they wanted to kill the applicant and the applicant said that they were being pressured by their neighbours. The Tribunal asked the applicant why her father and brothers wanted to kill her as it was her husband, and not her, who had sought the divorce. The applicant said that it did not matter to them as the end result was that she was divorced. The Tribunal asked the applicant when in 2014 she was told that her father wanted to kill her and she was evasive and said that she had heard this. When the Tribunal asked again when in 2014 she was told that her father wished to kill her. The applicant said that she was told in 2015. The Tribunal indicated that the applicant had indicated that her mother told her of her father’s desire to kill her in 2014. The applicant then changed her evidence again and said that she was told in October or November 2014. The applicant later indicated that the threats by her father were the reason for lodging the protection visa application which was lodged in August 2014.

The applicant said that in 2014 the neighbours had been harassing her family because of her divorce and finally, her father succumbed to the pressure from the neighbours and disowned the applicant. The Tribunal indicated that there is no mention in the applicant’s mother’s statement of 2015 of the applicant’s father wanting to kill the applicant.
The Tribunal indicated that it was also concerned that the applicant waited until 2014 to lodge a protection visa application and that this may suggest that the applicant did not fear harm in India. The applicant initially indicated that she applied after she was threatened. The Tribunal indicated that the applicant had said that she was being threatened by her in-laws from 2012. The applicant then said that she lodged her protection visa application in 2014 after her father succumbed to pressure from the neighbours and disowned her.
The Tribunal asked the applicant whether it was correct that before her father disowned her in 2014 she was not concerned enough about her safety in India to lodge a protection visa application and she said that this was correct.
The Tribunal asked the applicant if there was any reason she could not relocate within India to avoid harm. She said that even if she was employed that she would not have enough money for food. She also said that many women are raped in India and that that some people in India would not rent accommodation to single women.
The Tribunal indicated that the applicant spoke, read and wrote in English, Punjabi and Hindi and had studied a Bachelor degree for two years in India, had undertaken tertiary studies in Australia and been employed in Australia and that it appeared that these things would put the applicant in a good position to establish herself outside her home area and secure employment in India. The applicant said that there was no point in having a job if she was not safe and said that her family or her in-laws would find her within a month or two of returning to India.
During the hearing the Tribunal asked the applicant’s representative about references in his written submissions to paragraphs from a statement by the applicant that the Tribunal did not appear to have. On 13 May 2016, after the hearing, the applicant’s representative provided an additional statement dated 19 April 2012 and indicated that this was the document referenced in his submissions. The statement makes no mention of the applicant being harmed by her in laws or that they demanded more dowry before she arrived in Australia. Indeed, the statement makes it clear that the applicant was surprised that her husband expected more dowry money when she arrived in Australia indicating that she told her husband “Why are you asking me now?.”
The applicant’s representative also provided a statement from [the] applicant’s cousin, which indicated that she thought that the applicant may be harmed by her father and her in laws if she returned to India. The applicant’s representative also requested that further hearings be held so that the Tribunal could take evidence from the applicant’s mother, uncle and her cousin. The Tribunal decided not to hold further hearings for this matter. First, the applicant’s mother, uncle and cousin had already supplied statements to the Tribunal containing their evidence. Secondly, the applicant had made claims that she feared harm from her family members. While the Tribunal appreciates that those claims related primarily to fearing the applicant’s father and brother, she also made general claims to fear harm from her family members and never specifically excluded fearing her mother, uncle or cousin.
Country Information
The DFAT country information report: India, 15 July 2015 provides:
“3.55 While illegal under Indian law since 1961, there is a general expectation that a bride’s family will provide a dowry consisting of both money and items such as household goods. According to government statistics, in 2013 around 8,000 Indian women died violent deaths because their families were unable to meet demands for further dowry after marriage, and more than 220,000 people were arrested on charges of dowry harassment. In response, the Supreme Court issued a ruling in July 2014 that questioned the propriety of the anti-harassment laws and said that police should follow ‘due diligence’ before making arrests in dowry harassment cases.”
The United Kingdom Home Office Country Information and Guidance: India: Women fearing gender-based harm/violence April 2015 provides:
“2.7 Single women
2.7.1 The Immigration and Refugee Board of Canada (IRB), in a 2013 report covering the period 2008-2011, quoted various external sources as follows:
‘Media sources report that, according to India's census of 2001, there are approximately 36 million women in India who are widowed, divorced or separated from their husbands ... The National Forum for Single Women's Rights indicates that these single women are rejected by society and treated with indifference by the federal government... For example, widows are said to face “deep social stigma”...,”social marginalisation”...and “cruel” treatment by in-laws.
‘Women's eNews, a non-profit Internet-based news service reporting on women's issues... explains that women who are unmarried or who were left by their husbands generally “live invisibly, often at the mercy of callous family customs”.
‘However, media sources also indicate that India's economy is booming, leading to an increase in the number of young, single women working in cities ...These women have greater freedoms and opportunities than in the past...’
2.7.2 The Canadian IRB report continued:
‘Sources indicate that, traditionally, women in India go from living with their parents to getting married and living with their husband...and his...family. Single women who live away from their families face “social and family stigma,” writes [author Reena Patel in 2010], particularly if their families live in the same city... She adds that the suspicion with which single women are regarded makes accessing housing difficult...
‘According to India's Ministry of Women and Child Development, finding safe housing is one of the “main” problems for women who move to larger cities in search of employment... Media and academic sources also report on the difficulties single women face trying to rent apartments in metropolitan areas... [A professor of women's studies and political science at University of Michigan in 2011] said that while access to housing is “significantly improving” for middle-class and high-income single women (including divorced and widowed women), there continue to be significant social and cultural barriers around women's sexuality. Women residing alone may be viewed as having suspect reputations and may have to have family members vouch for them in order to gain access to housing ... Women from lower caste backgrounds or lower income groups may have additional burdens of caste discrimination and may not have the financial means to gain access to housing. This may also be true for Muslim women who may face additional barriers of discrimination that intersect with gender obstacles...
‘In Delhi, where 60 percent of residents live in slums...women who are arriving from other areas of India for an education or employment reportedly lack proper housing ... Access to adequate housing is also an issue in Mumbai, where 50 percent of residents live in slums ... The Global Post, a Boston-based Internet news agency, reports that single women in Mumbai have a difficult time finding landlords willing to rent them apartments ... Patel...notes that some landlords suspect that single women are prostitutes or bar dancers... Media sources also indicate that such perceptions result in single women who live on their own being subject to scrutiny by neighbours...
‘[T]he Director of the New Delhi-based Lawyer's Collective Women's Rights Initiative said that “victims of domestic violence...have difficulty in accessing housing options as many of them lose their financial independence after marriage and sometimes as a result of being in a violent relationship”... She noted that such women are often dispossessed by their husbands and forced to rely on their parents, who may not be willing to support them.
‘According to India's Ministry of Women and Child Development, since 1972, the government has funded NGOs and other organizations engaged in women's welfare or education to build hostels for working women... The hostels are intended to provide safe and affordable housing to single working women; widowed, separated or divorced women; working women living outside their home towns or living without their out-of-town husbands; women undergoing employment training; and women studying in professional programs...
‘There are reportedly 887 working women's hostels throughout India providing accommodation for approximately 65,000 women... Women can stay in the hostels for up to three years, with the possibility of an extension in exceptional circumstances... According to the Ministry, the hostels have day care centres for residents with children ... In contrast, the professor of women's studies and political science stated that hostels for middle-class working women “generally do not have accommodations for children”...
‘According to the [Indian] Planning Commission, working women's hostels are primarily located in cities, but are not found in every district... There is reportedly a demand for more of these hostels, particularly in smaller towns... The Planning Commission characterized the basic facilities in the hostels as being of “inferior quality,” and noted that the sanitary conditions in most hostels are “very bad”... The Commission added that the hostels do not provide the women residents with adequate access to health care ... The professor of women's studies and political science stated that working women's hostels are “generally accessible to single employed women, particularly of middle class background”...
‘India's Ministry of Women and Child Development also funds Swadhar Shelter Homes, which aim to provide accommodation, food, clothing, counselling and services for “marginalized” women and girls who are in “difficult circumstances,” but who do not have support from their families ... The government also offers other programs for women, such as the Support to Training and Employment Programme (STEP), which provides skills training to marginalized women...’”
State protection
Police inaction, either as a result of delays in conducting inquiries or refusals by police to accept FIRs, effectively prevents investigations into often serious crimes. The practice is widespread, and can appear at times to be politically related. While some reports indicate that persistence on the part of the complainant can result in FIRs being acknowledged, this is not always the case.[1]
[1] See the following reports as examples:
In 2012, the US Department of State (USDOS) noted that “[w]idespread impunity at all levels of government remained a serious problem. Investigations into individual cases and legal punishment for perpetrators occurred, but in many cases a lack of accountability due to weak law enforcement, a lack of trained police, and an overburdened court system created an atmosphere of impunity”.
Corruption remained pervasive, and bribes were reportedly paid to “speed up procedures, such as police protection”.[2][3]
[2] US Department of State 2012, Country Reports on Human Rights Practices 2011 – India, 24 May, Executive Summary, Section 4.
Relocation
USDOS states that Indian law provides for freedom of movement within the country, and the government generally respects this in practice.[4] The UK Home Office reported that background checks by the Indian police are not conducted where Indian nationals relocate within India, as the authorities have neither the resources nor the language abilities to monitor internal relocation. While there is not currently a national registration system for Indian citizens, several proposals and versions of identity cards are being used in various states for various purposes.[5]
[4] US Department of State 2013, Country Reports on Human Rights Practices for 2012 – India, 19 April, Section II
[5] UK Home Office 2010, Country of Origin Information Report – India, 21 September, p. 95.
The IRBC corresponded with an official at the Canadian High Commission in India, who “said that police share information about ‘law enforcement’ but indicated that ‘there is limited sharing of information between police forces’ and police are not required to ‘report the movements of persons of interest to other offices’”.[6] In relation to tracing a person through registration, India reportedly does not have central registries for housing, rentals, schools, etc. If a person wishes to transfer voter registration to another location, however, the elections committee requires proof of address.[7]
[6] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May < Accessed 29 May 2012.
[7] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May < Accessed 29 May 2012.
The previously mentioned official from the Canadian High Commission in India indicated to the IRBC that as there is no central police database and records are kept in local police stations in India, “this makes it ‘extremely difficult, if not impossible’ to locate an individual as a result of a security check, unless there is a match between a local police station and the subject of a security check”.[8] It was reported in April 2011 that an applicant was not required to go to a police station to obtain identity documents such as driver’s licences, voter cards, or ration cards.[9]
[8] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May < Accessed 29 May 2012.
[9] Immigration and Refugee Board of Canada 2011, India: Identity documents required to obtain employment and housing in Delhi, Mumbai and Chandigarh; whether individuals must present themselves at police stations to obtain identity documents; issuance procedures for ration cards, birth certificates, driver's licenses, and voter cards, IND103725.E, 27 April < Accessed 31 May 2012.
India has some 1.2 billion people in some 27 million towns, cities and settlements, and the largest 8 cities have between 4 and 12 million people each[10][11][12].
[10] – accessed 22 January 2013.
Hindi is the majority language in the following northern states: Himachal Pradesh, Haryana, Delhi, Uttaranchal, Uttar Pradesh, Rajasthan, Madhya Pradesh, Bihar, Jharkhand and Chhattisgarh. Hindi is the official language of eight of the nine states listed above.[13] Hindi is also spoken in Punjab, and is understood by approximately 40 per cent of the Indian population.[14] According to the Encyclopaedia Britannica Online, Hindi is spoken as a first language by approximately 425 million people across India, and as a second language by an additional 120 million.[15] English is recognised as an “associate” official language to Hindi, and is used predominantly by educated and professional groups, the media, and in administrative contexts.[16] Although only a relatively small number speak English as their first language, an estimated 125 million people speak English as either a first, second or third language. Punjabi is spoken by over 30 million people in India, it is spoken in Chandigarh, Delhi, Himal Pradesh, Jammu, Punjab, Rajastan and Uttarakhand. It is the official language of Punjab, Haryana and Delhi.[17]
[13] University of Illinois at Urbana-Champaign – Linguistics Department (n.d.), A Brief Profile of the Hindi Language < 4 October 2011
[14] Online Computer Library Center (n.d.), Languages of India < Accessed 7 February 2008
[15] Encyclopedia Britannica Online (n.d.), Hindi language < Accessed 4 October 2011
[16] Online Computer Library Center (n.d.), Languages of India < Accessed 7 February 2008.
[17] Australian Department of Foreign Affairs and Trade. DFAT Country Information Report, India, 15 July 2015.
The Times of India reported on 23 June 2013 that the overall Indian unemployment rate was 3%.[18] In April 2013, the World Bank issued a report in which it expected economic growth in India to accelerate to 6.7% in 2015, and concluded that long-term prospects remain bright.[19]
[18] - accessed 24 June 2013.
[19] accessed 24 June 2013.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal finds the applicant is a national of the India. The applicant provided the Department and the Tribunal with a copy of her Indian passport. The applicant made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against the India for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).
The Tribunal accepts that the applicant married her husband in an arranged marriage in February 2011 and that the couple lived together at his family’s house in India for about two months before the husband returned to Australia.
The Tribunal accepts that a dowry and other expenses totalling approximately [amount] Lakh was paid by the applicant’s family in relation to the marriage.

The Tribunal accepts that on the day of the wedding the applicant began to reside with her husband’s family at their home. The Tribunal accepts that the applicant and her mother in law did not get along and that her mother in law caused arguments between the applicant and her husband. The Tribunal accepts that on one occasion the applicant’s husband attempted to slap the applicant but was prevented from doing so by the applicant.
The Tribunal accepts that the applicant arrived in Australia [in] December 2011 and met her husband at the airport. The Tribunal accepts that the applicant decided to leave the airport with three other men rather than with her husband. The Tribunal accepts that the applicant’s husband initiated proceedings to divorce the applicant and that they are now divorced.
The Tribunal has great concerns about the applicant’s evidence and her credibility. At the hearing the applicant repeatedly said that the only time that the applicant had been violent towards her was during the incident two or three weeks after the wedding where she claims that her husband attempted to slap her. However, the applicant’s representative had provided to the Tribunal a statement by the applicant which was prepared in relation to a Partner visa application in which the applicant was relying on domestic violence provisions in the legislation to succeed. In that statement the applicant claimed that in the two months that they spent together in India after the wedding, her husband had acted violently towards her including repeatedly raping the applicant. This evidence appeared to be at odds with the evidence that the applicant had given that she was excited and looking forward to reuniting with her husband in Australia. The applicant’s inconsistent explanations for the inconsistencies also undermine her credibility. At first she said that she was too embarrassed to make the claims in her protection visa application in circumstances where she had already made the claims to the Department in respect of her Partner visa application. She then blamed interpreters and translators for the claims in relation to the harm she suffered. Finally, she claimed that as the claims had already been made in the Partner visa application she did not see a need to mention them in her protection visa application including before the Tribunal at the hearing. These explanations are inconsistent and nonsensical and are rejected.
The Tribunal is willing to accept the evidence given by the applicant at the hearing that on one occasion the applicant’s husband unsuccessfully attempted to slap her two or three weeks after her wedding. However, other than that incident, the Tribunal does not accept that the applicant was ever physically harmed by her husband.
An additional problem with the evidence submitted by the applicant was that there were significant inconsistencies in the evidence of the applicant’s parents. In the court complaint which was made [in] September 2013 and was translated into the English language in October 2015 the applicant’s father mentions nothing about the applicant’s husband’s family mistreating the applicant or demanding additional dowry payments prior to her arrival in Australia. In that statement the applicant’s father claims that it was after the applicant arrived in Australia that her husband refused to “keep her in his house” and that her husband and his family then harassed the applicant and demanded [amount] Lakh. He said that he arranged a panchayat in February 2012 which visited that applicant’s husband’s parents where the applicant’s father asked the applicant’s husband’s parents to direct their son not to harass the applicant. The statement goes on to say that 15 days after the first visit, the applicant’s father arranged another panchayat which travelled to the applicant’s in laws home and again requested that they and the applicant’s husband cease harassing the applicant. The applicant’s father indicated that the applicant attended this meeting by telephone. The applicant’s father indicated that he requested the return of the dowry articles from the applicant’s husband’s parents and they refused. The applicant’s father indicated that the applicant’s in laws said “do what ever you can do, neither your daughter is to be kept not the dowry is to be returned.”
The applicant’s father indicated that he was filing the complaint “because all the accused have ruined the life of his daughter with common intention and are misusing her dowry articles.”
In the applicant’s parents’ statements of 23 July 2014 each of the applicant’s parents made very different claims from those made by the applicant and those contained in the court complaint letter. In the first statements provided by the applicant’s parents dated 23 July 2014, they both claimed that the applicant was living with her husband in Australia until her husband’s parents started demanding more dowry money. The applicant’s parents’ statements said that the applicant and her husband were living “peacefully” in Australia before the applicant’s husband parents caused their son to start “mistreating and misbehaving with my daughter while they were living in Australia and eventually “compelled him to throw our my daughter from his house.”
They claimed that the applicant’s mother in law and brother in law beat the applicant. The applicant has never claimed that this occurred. In their statements of 23 July 2014 there is no mention of arranging a panchayat on two occasions to visit the applicant’s in laws after she arrived in Australia to ask that they stop harassing her and to request the return of the dowry articles. Rather, the statements claim that before the court proceedings were filed, it was the applicant’s in laws who visited the applicant’s parents’ home, demanded [amount] Lakh and threatened to kill the applicant’s family if they were not paid.
The Tribunal was provided with a second affidavit from the applicant’s mother dated 13 October 2015. This affidavit indicated that it was to supplement her first affidavit and yet it contained information which contradicted the information in her and her husband’s first statements. For example, whereas in the first statements, the applicant’s parents claimed that the applicant was living with her husband in Australia until his family began to demand additional dowry payments, in the more recent statement the applicant’s mother indicated that the applicant was not living with her husband in Australia but rather decided not to leave the airport with her husband but instead left the airport with a family friend. In the more recent statement the applicant’s mother advanced a new claim that the applicant would be unsafe in India because members of their village were against the applicant and her family because they feel that the applicant was a disgrace to the village because she became divorced from her husband and was a bad example to other girls in the village.
The applicant’s representative indicated that he did not wish the Tribunal to consider the applicant’s mother’s first statement and that it should only rely on the applicant’s mother’s more recent statement. He said that the first statement contained inaccuracies, including that the applicant was living with her husband in Australia, owing to the way that these types of statements are produced. He said that both of the applicant’s parents were completely illiterate and that these sorts of statements are produced by the deponents speaking in Punjabi to the people writing the statements and that those people would translate their speech into the English language. He indicated that the people who write these statements are unreliable and essentially write whatever they please in the statements. The applicant’s solicitor provided an anecdote of witnessing a woman making a statement in this way which was not being accurately recorded by the person who was writing the statement.
The Tribunal indicated that this presented a significant problem because it appeared that all four of the parents statements were produced in this way and that from what the applicant’s representative had said, and the glaring inconsistencies in the statements that there appeared to be no way that the Tribunal could rely on the accuracy of any of the information contained in any of the statements.

100. The Tribunal notes that the only document from the applicant’s parents which appeared to have been written in Punjabi and translated was the court complaint by the applicant’s father. However, it appears that this document is similarly difficult to rely upon as the applicant’s father is completely illiterate and could not have written a statement in Punjabi himself and would not have been able to read the complaint in either Punjabi or English to attest to its accuracy. In addition, as was put to the applicant, country information suggests that document fraud is rife in India and it is easy to obtain false documents or for deponents to fabricate evidence.
101. Because of the problems identified with the applicant’s parent’s statements, the Tribunal rejects them entirely as unreliable. The Tribunal has similar concerns about the statement of [a named person] who claims to be the applicant’s uncle.
102. The Tribunal does not accept that the applicant has ever been threatened by her father or her brother and does not accept that there is a real chance that she would suffer serious harm from anyone in her family if she returned to India.
103. There is no evidence that her family has ever been violent towards her. Further, the applicant gave inconsistent evidence about when her mother told her that her father had threatened to kill her. At first she said that it was in 2014 and then changed this to 2015 before reverting back to 2014. The applicant had difficulty saying when in 2014 she was told that her father had threatened to kill her. She finally said that it was in October or November 2014. However, later on at the hearing she said that she lodged the protection visa application in August 2014 after hearing that her father had threatened to kill her. The inconsistencies in her evidence about when she was told that her father threatened to kill her lead the Tribunal to believe that she has fabricated this claim.
104. Further, the Tribunal does not accept that members of the applicant’s family and her father in particular, would continue to provide statements in support of the applicant, however inconsistent, if her family wished to kill her.
105. The Tribunal is not satisfied that the applicant faces a real chance of serious harm at the hands of members of her society or her neighbours in India. These claims were very vague and lacked any specificity. The applicant did not give a single account of any incident which raised any reason why the Tribunal should accept that her community would harm her. At best, her argument was that there was pressure from the community on her father which resulted in him deciding to kill her. This claim however, was also vague and lacked any specificity and is rejected.
106. Similarly, the Tribunal has serious concerns with the applicant’s claims that she would be harmed by her husband or someone in, or associated with, his family. The applicant gave evidence that she did not apply for a protection visa until 2014 because it was at this point that she learnt from her mother that her father had decided to kill her when she returned home. She said that she had not applied previously because she did not believe that her life was at risk prior to that point. It should be remembered that the applicant had said that it was prior to 2014 that she had been threatened with death by her in-laws. The fact that the applicant did not feel that she was at risk of harm on return to India prior to 2014 strongly indicates that she did not have a subjective fear of harm from her in laws. This lack of subjective fear in turn gives weight to an objective assessment that there is no real chance that the applicant would suffer significant harm by her in laws or her husband if she returned to India.
107. In addition, according to the applicant’s evidence, her in laws had been expressly asking her and her family for additional dowry money since around mid-2011 and this money was never paid. The applicant’s husband’s family had every opportunity to harm the applicant physically and never did so. At the hearing the applicant was clear that she was never physically harmed by her husband’s family and that the only time her husband had been violent with her was on one occasion when he had attempted to slap her. This is consistent with the statements of the applicant’s uncle and cousin which mention nothing of physical harm to the applicant by her husband or his family. The only mention of violence was in the applicant’s parents’ first statements which I was urged not to rely upon and which I have found to be completely unreliable, and when the applicant changed her evidence regarding harm by her husband once it was put to her that she had previously provided to the Tribunal a statement which contradicted her evidence at the hearing.
108. Given the Tribunal’s serious concerns about the applicant’s credibility and its rejection of the statements provided by her family members, it is very difficult for the Tribunal to discern what has actually happened to the applicant. What the Tribunal does accept are facts which can be ascertained from the delegate’s decision, which was provided to the Tribunal by the applicant, which referred to a police report of an incident at the airport. Those comments indicate that the applicant’s husband was at the airport when the applicant arrived in Australia. They also suggest that the applicant left the airport with three men who she had not met previously rather than with her husband. From this the Tribunal is prepared to accept that the applicant did not live with her husband in Australia.
109. Although there is some doubt as to whether the applicant’s in laws ever sought additional dowry payments from the applicant and her family, given the country information as to dowry demands and the treatment of women in India the Tribunal is prepared to accept that they did. The Tribunal is also willing to accept that the applicant was, at times treated poorly by her in laws although other than the incident where the applicant’s husband attempted to slap the applicant the Tribunal does not accept that the applicant was ever subjected to violence by her family, her in laws or her husband. The Tribunal does not consider that any mistreatment which the applicant faced while living with her in laws amounted to serious harm.
110. The Tribunal finds that the reason that her husband was at the airport when the applicant arrived was to collect the applicant from the airport. The Tribunal rejects the applicant’s claim that her husband threatened to kill her if she somehow forcibly departed the airport with him. This appears to be inconsistent with her husband being at the airport, it is also undermined by the applicant’s failure to report the threat to police at the airport despite appearing to have the means to do so either herself, or through the aid of the three men who arrived to collect her from the airport.
111. Although it is not without serious doubt, the Tribunal is prepared to accept that the applicant faces a real chance of serious harm if she were to return to her village in India. Given the country information as to dowry demands and the treatment of women in India, the Tribunal is willing to accept that, because the applicant had been harassed for additional dowry payments which were not made, because the applicant decided to leave the airport with three unknown men rather than her husband and because the Tribunal accepts that the applicant’s father has brought court action against the applicant’s in laws, there is a real chance that the applicant would suffer serious harm at the hands of her in laws or their associates in her district in India.
State protection
112. The independent country information set out above indicates a high level of corruption, inaction and inefficiency in India’s criminal justice system. Considering the country information, the Tribunal finds that the applicant would not be able to access a level of state protection in India in accordance with the principles of MIMA v Respondents S152/2003.
113. Considering the country information, the Tribunal finds that the primary applicant could not obtain protection from the authorities in India such that there would not be a real chance of the applicant suffering serious harm or a real risk that she will suffer significant harm: MIAC v MZYYL [2012] FCAFC 147.
Relocation
114. The Tribunal had put to the applicant at the hearing that the country information indicated that India was large place with a huge population and enormous cities where people had freedom of movement. The Tribunal indicated that this information may indicate that she could relocate within India to avoid persecution.
115. Even if her in laws or their associates were motivated to pursue the applicant across India, the country information indicates that India has a massive population and enormous cities. There is no unified national registration system for Indians and very limited sharing of information between police forces. The country information concerning the lack of central registries and difficulties police have in tracking down individuals across the nation indicates that the chance or risk that her family or in laws or their associates would be able to locate the applicant is remote. Given the totality of the independent country information and considering her individual circumstances, the Tribunal finds that the applicant could relocate to other locations in India where there is no appreciable risk of the occurrence of the feared persecution.
116. The Tribunal accepts that the applicant could move to a large city in India to reside and seek employment there. The Tribunal accepts that this would not be easy for the applicant. The Tribunal accepts that, as a single woman, the applicant may have difficulties finding accommodation and, as a single woman, may be harassed and subjected to sexual harassment in the workplace. However, the Tribunal does not accept that these difficulties would amount to serious harm.
117. The primary applicant can read, speak and write in English, Punjabi and Hindi and her ability with three languages would assist her in finding employment and accommodation and re-establishing herself in India. Despite claiming to have had limited English language ability when she arrived in Australia, the applicant has been able to establish herself here and find accommodation, employment and educational opportunities.
118. The Tribunal accepts that the applicant completed her secondary schooling in India and completed 2 years of tertiary education there although she did not complete her degree. The Tribunal also accepts that the applicant has undertaken various tertiary courses in Australia including a [course] she said that she was undertaking in 2014 and most recently a [course] which she was “half way through” as of May 2016. Even if the applicant never completed any of these courses, her undertaking of these courses would be likely to have supplemented her level of education which would assist her in attaining employment in India.
119. The applicant also has extensive work experience in Australia [and] through her volunteer work. She has provided the Tribunal with various support letters which describe the applicant in positive terms including that she is reliable, hardworking, friendly and caring. The Tribunal considers that these traits will greatly assist the applicant in finding employment and re-establishing herself in India.
120. Considering all of her individual circumstances and the country information, the Tribunal finds that it would be reasonable for the applicant to relocate to another area in India to avoid the localised threat of serious harm that the applicant faces in the district of Ferozpur in Punjab. Accordingly, the Tribunal finds that the applicant does not in the reasonably foreseeable future face a real chance of persecution (Convention or non-Convention related) in India from her husband, her in laws, her community, her family, or from anyone else. Her fear of persecution is not well-founded.

121. Considering the independent country information and their individual circumstances, the Tribunal finds 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 she will suffer significant harm and that 36(2B)(a) applies in his case. Accordingly, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that she will suffer significant harm.
122. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
123. 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 applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
124. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
125. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Tigiilagi Eteuati
Member

‘Trader killed in his shop, police ‘inaction’ sparks protest’ 2012, The Indian Express, 22 July < Accessed 27 August 2012;
Deedwania, B 2012, ‘Firm traces stolen containers after police inaction’, Mumbai Mirror, 25 May < Accessed 27 August 2012
Ray, M 2012, ‘Court justice for rape victim after police inaction’, The Times of India, source: TNN, 23 June < Accessed 27 August 2012.

[3] Freedom House 2011, Freedom in the World 2011 – India, 5 July < Accessed 8 August 2012.

[11] - accessed 22 January 2013.

[12] - accessed 24 June 2013.

[2017] AATA 1685

19 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction