1515679 (Refugee)

1515679 (Refugee) [2019] AATA 5701 (17 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515679
COUNTRY OF REFERENCE:                   India
MEMBER:Nathan Goetz
DATE:17 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas

Statement made on 17 May 2019 at 11:46am

CATCHWORDS
REFUGEE – protection visa – India – particular social group – mixed religious relationships – love marriages – honour killings – threats of violence – compelling reconversion – state protection – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants are [primary applicant’s name], his [wife] and their [daughter].
On 1 July 2015, all three applicants made an application for a protection visa. This was refused by the delegate on 3 November 2015.
On 17 November 2015 the applicants applied to the Tribunal for a review of this decision. The applicants submitted a copy of the delegate decision with their application.
On 15 June 2018 the applicants appeared before the Tribunal to give evidence in support of their application. As [the applicant’s daughter] is a child she did not give oral evidence. The applicants were assisted by a Punjabi interpreter.
The applicants were represented by a registered migration agent [but] she was not present for the hearing.
CRITERIA FOR A PROTECTION VISA
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, he or she 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 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Background
The applicants claim that they are all citizens of India and the applicants confirmed their migration history in accordance with the delegate decision. The history is as follows:
On 28 May 2009, [the applicant] was granted a [student] visa while he was in India. His wife [was] granted a visa as a dependent spouse. [In] June 2009, both of them arrived in Australia.
On [date], [the applicant’s daughter] was born in Australia to [the applicant] and [his wife].
On 10 August 2011, [the applicant’s] student visa ceased, and as a consequence, so did [his wife’s] dependent visa. They became unlawful non-citizens.
[In] June 2015, the three applicants were located by immigration officials and were taken into immigration detention.
On 1 July 2015, the three applicants applied for a protection visa and all were released on 10 July 2015 on bridging visas.
Written Protection Visa Application – 1 July 2015
According to the written protection visa application, [the primary applicant] was born in [his home] village, Phagwara City in the Punjab state in India. According to the form:
[The applicant] was seeking protection in Australia so he did not have to return to India. He left India with his wife because his wife received a serious threat of an honour killing. He met his wife [in] early February 2008 and married her [in] 2008. His wife is a Christian and [the applicant] is a Hindu. They knew that they had a religious difference from the beginning but this did not stop them falling in love.
[The applicant] and [his wife] decided to keep this as a secret from their families. However, after the marriage, all of their families found out that his wife was a Christian and not a Hindu. Their family was outraged to find this out because they thought it as a huge disgrace to their family and their family name. They have made a number of threats to [the applicant’s wife] to persuade her to convert back to Hindu. [The applicant’s wife] refused to change because she was a devoted Christian. After that, [the applicant] and [his wife] have been living in hell not being able to trust anybody and are not able to go anywhere without feeling death threats.
When asked what they thought would happen if they returned to India, the application stated that their family will find them and kill them, including their child. The application noted that honour killing is very common and accepted as an honourable act by the family to keep their reputation. The application disclosed that the applicants had experienced previous harm in India. They had a life threatening experience. [The applicant’s wife] was physically attacked by her male family members a number of times. [The applicant] was also attacked many times because he was trying to protect her.
The application stated that they had sought help within India after the harm, but they could not find any help. The police did not want to be involved in this matter. They even tried the Human Rights Centre for help. The application stated that there are simply too many human rights violation cases that the organisation is handling at the moment for the Centre to attend to the applicants’ problems immediately.
The application asked whether the applicant moved, or tried to move to another part of the country to seek safety and the applicants answered that they had tried to move to other parts of India, but their family have a wide network of friends and family all over India, and their family managed to chase them.
If returned to India, the applicants thought they would be harmed or mistreated. Honour Killing is the most probable danger that their family would face. Other than that, their child will not be able to have a normal childhood, such as ordinary school life. The application claimed that their child would be subject to bullies and mistreatment by the school authorities.
The application complained that the authorities of India could not and would not protect the applicants if they went back to India because the applicants could not find any help in India, noting the police not wanting to be involved in the matter, and the Human Rights Centre not being able to help because of their caseload.
The application stated that the applicants did not think that they would be able to relocate within India because [the applicant’s wife] and their child will be subject to death threats as described in the application.
Documentation provided by the applicants to the delegate in support of their claims
In addition to the written protection visa application, the applicants provided the following documents in support of their claims.
Before the delegate they provided a birth certificate of [the applicant’s daughter] who was born on [date] at [a] Hospital [in] New South Wales. This certificate shows that [name] is the daughter of [the applicant] and [the applicant’s wife].
The applicants also provided Indian passports for [the applicant] and [the applicant’s wife].
The delegate also had a copy of a letter dated 14 July 2015 from the [named church] which is based [in] Jalandhar in India which attested that [the applicant’s wife] has been baptised as a Christian since 1996, as well as a document titled ‘Affidavit’ and dated 23 July 2015 from [name] (the mother of [the applicant’s wife]) which confirmed that her brother [Mr A] had made threats of harm because of the interreligious marriage.
The delegate also had a letter dated 13 June 2008 in English and Punjabi from Indian police which stated that [Mr A] had made a complaint to police that his niece had been abducted out of her home. That report stated that the police had investigated the complaint and that it found that [Mr A] was not happy because of the marriage being conducted out of religion/caste and he had been ordered to not interfere with the couple who are leading a happy married life.
The applicants also submitted a number of online articles regarding ‘honour killings’ in India.
Documentation provided by the applicants to the Tribunal by the applicants in support of their claims
Before the Tribunal, [the applicant] provided a one page statement dated 7 June 2018. It referred to the applicants marriage occurring [in] 2005 (which [the applicant] corrected as a typographical error in his oral evidence at the hearing: It should read 2008), and stated that his wife’s uncle’s family was not supportive of their marriage, had threatened the couple while they were in India, continues to threaten the couple whenever they sees his sister (the mother of [the applicant’s wife] who remains in India) and that [the applicant] and [his wife] left India and came to Australia to remove themselves from the situation, but that the situation remains the same in India. The society from his wife’s native village is still against the couple and their marriage.
The statement also noted that his daughter had grown up in Australia and she is [age] years of age. If she were to go back to India, her future would be uncertain and in danger as well. The statement noted that [the applicant] was aware he could take the protection of the Indian police and the law system, but he did not want to take any risk because if you lose your family, you lose everything.
On the day of the hearing, the applicants provided a document dated [in] June 2018 in both English and Punjabi which appeared to be a copy of a complaint made to Indian police. The report read that [name] (the mother of [the applicant’s wife]) had made a report to the police of the threats which [Mr A] continues to make against the couple and that this complaint is now the subject of an enquiry.
The Claims
[The applicant] and [his wife] claim that they are an interreligious couple and as a result will face persecution if they are returned to India. As their daughter is a product of an interreligious marriage, they claim that she will also be harmed if she returned to India.
Oral Evidence Given to the Tribunal – Both Applicants
At the start of the hearing, [the applicant] and [his wife] were present and gave evidence that they knew they were unlawful from the time that the student visa and associated dependent visa ceased. The applicants told the Tribunal that although [the applicant] was the person who signed the protection visa application, it was prepared by both [the applicant] and [his wife] together while they were in immigration detention together. They had received the protection visa forms from a migration agent while they were in detention. They completed the forms together and then handed the forms to [the applicant’s] brother, who was in Australia, and [the applicant’s] brother then handed it to the migration agent. The immigration agent was organised for them by [the applicant’s] brother.
The applicants gave evidence that [the applicant] had already seen this agent approximately one month prior to the interception by immigration officials. This was done because the applicants wanted to regularise their migration status. [The applicant’s wife] knew about this appointment and its purpose, but she did not attend it because she had back problems and was ill on the day of the appointment. [The applicant’s wife] confirmed that she and her husband were going to see the migration agent because [her] uncle was not happy about the marriage, and they planned to see the migration agent for a protection visa.
[The primary applicant] – Oral evidence given to the Tribunal
After obtaining the above evidence from both applicants jointly, [the applicant’s wife] left the hearing room and the Tribunal questioned [the applicant].
[The applicant] provided his residential history to the Tribunal. He told the Tribunal that he was born in mother’s father’s house in [his home village] in Phagwara, Punjab. He stayed at that house for two or three months and lived there with his mother and her parents. After that time, he moved to [Village 1] in Jalandhar, Punjab. He lived there with his parents and grandparents for five or six years. After that time, he moved with his family to a house in Ludhiana, Punjab where he lived for the next 20 years.
After 5 or 6 years at the house in [Village 1], the family moved to a house in Ludhiana, Punjab that his father built. The family lived there for 20 years. After that, the family moved twice more but remained in the Jalandhar, Punjab. They lived in the first house for two years, and he lived in the second house until he came to Australia. [The applicant] said that his father retired from his work [in] 2014 or 2016 and that his mother was a housewife. He told the Tribunal that the family moved when his father was transferred for his job. [The applicant’s wife] lived with [the applicant] and his family after their marriage in 2008. [The applicant] told the Tribunal that his brother came to Australia in 2006 or 2007.
The Tribunal asked [the applicant] how and why he came to Australia. [The applicant] told the Tribunal that when he and his wife got married and his wife moved into a Hindu family, her maternal uncle did not like it and started giving them trouble and there was an attempt to implicate [the applicant] in a number of cases. [The applicant’s] brother who lived in Australia suggested that [the applicant] and [his wife] come to Australia to escape those troubles.
[The applicant] told the Tribunal that he married his wife in a Sikh Temple close to his where he was living. It was a religious Sikh ceremony. Despite [the applicant] identifying as a Hindu, he got married in a Sikh temple because his family are not typical Hindus, they are mixtures who go everywhere. His wife did not convert from Christianity. They did not tell the Temple that his wife was Christian. [The applicant’s] parents and his wife’s parents attended the wedding at the temple. [The applicant’s wife’s] uncles, friends and neighbours attended the wedding. However, [Mr A] was not present at the wedding, nor was he invited. No one from [Mr A’s] family attended the wedding because [the applicant’s wife’s] uncle was not happy with the marriage, nor were his family or his sons.
[The applicant] told the Tribunal that he had met [Mr A]. The first time he met him was at the police station in 2008 or 2009. The circumstances of the meeting were that [Mr A] complained to the police that [the applicant] had abducted [the applicant’s wife]. [The applicant] did not speak to [Mr A] at the police station. [The applicant’s] mother-in-law, who was present at the police station, told [the applicant] who [Mr A] was. The circumstances of the meeting were that the police called both the parties to the police station. They were there for two or three hours. [The applicant’s wife], her mother, [the applicant] and his parents were in attendance at the police station. [The applicant] said the police spoke to all parties. The case was dismissed by the police after investigation as they were satisfied that [the applicant’s wife] was not abducted and had entered into a love marriage willingly.
Apart from seeing [Mr A] at the police station, [the applicant] said that he saw [Mr A] a few times when he was travelling on roads. [The applicant] told the Tribunal that he was stopped on the road by [Mr A] twice. [The applicant] was travelling on a bike, as was [Mr A] who was with a friend. [The applicant] said the incident with [Mr A] happened about three or four months after his marriage to [the applicant’s wife] and after the complaint was made to the police about the abduction.
[The applicant] told the Tribunal that [Mr A] told him that he did not like the fact that his Christian niece had married [the applicant] who was not of the same religion. [Mr A] told [the applicant] that he would face dire consequences for doing so. [The applicant] was not harmed physically. [The applicant] did not say anything in response to [Mr A] because [Mr A] was older than him and was a relative of his wife. [The applicant] told the Tribunal he just left. The Tribunal questioned how [Mr A] came to stop [the applicant] and [the applicant] said that he just came to stop him. With further questioning, [the applicant] said that he was stopped by [Mr A] directing him to stop with his hand. [The applicant] said he stopped because he though [Mr A] might want to tell him something. The Tribunal put to [the applicant] that it was strange that he would stop for someone who had given him trouble with a false complaint to the police. [The applicant] said that he did not think about anything and he just stopped because [Mr A] had shown him his hand.
Noting the attendance at the police station where [the applicant] saw [Mr A], the Tribunal asked whether there was any other incident with [Mr A] (apart from being stopped on the road). [The applicant] told the Tribunal that [Mr A] always called him from his phone, always threatened him, and threatened his mother-in-law. Apart from the attendance at the police station, and the time [the applicant] saw [Mr A] on the road, he has never been physically present with [Mr A]. This was because [the applicant] had closed himself in the house and did not want to travel outside of the house. The Tribunal put to the applicant that he had previously told the Tribunal that he was stopped twice on the road [Mr A]. [The applicant] said that [Mr A] called him two or three times and that [Mr A] only stopped him the one time. The Tribunal asked [the applicant] why he told the Tribunal previously that [Mr A] had stopped him twice. [The applicant] said that he spoke wrong and that it maybe slipped out. The Tribunal raised its concerns with [the applicant] that he was not being truthful with Tribunal given that his evidence had changed. [The applicant] confirmed that he was only stopped once by [Mr A].

In relation to the telephone calls, [the applicant] told the Tribunal that he received a threat from [Mr A] three or four days after the marriage. He assumed that someone, possibly a family member, got his telephone number. On the phone, [Mr A] said to [the applicant] that he married a Christian girl, and asked what he had done to change her mind. [The applicant] said that he was also threatening him. The Tribunal asked specifically for the threats. [The applicant] said that he was dishonoured because [the applicant’s wife] had been taken away from the Christian community. The Tribunal asked [the applicant] whether he said anything else. He told the Tribunal that [Mr A] said that his family were not happy about this. In response, [the applicant] said that he and [the applicant’s wife] were in love.
After the telephone call, [the applicant] did not change his telephone number. He did not change the number because the mobile number was issued by his father’s employer. His father was given one phone as part of his work which [the applicant] was allowed to use. His father retained his own personal number which he used. [The applicant] told the Tribunal that his father did not use the [business] mobile number because people knew his old personal number which he had for a long time. The Tribunal expressed its difficulty in understanding why the [business] would give him a work phone which was allowed to be used by his son. [The applicant] said it was like the situation with the [business] giving his father petrol every month that [the applicant] could use. The [business] used to contact [the applicant’s] father on his father’s personal mobile. [The applicant] said his plan was to not answer any calls from [Mr A].
The next time [Mr A] called was about a month later. [The applicant] told the Tribunal that he answered the call because he thought that [Mr A] may have changed his mind, but he had not. [Mr A] told [the applicant] that it was very distressing because anytime he went anywhere the community and relations were not happy. [Mr A] said he was not in the mood to let [the applicant] go that easily. In response, [the applicant] said to [Mr A] that he and [his wife] had already married and wanted to be left alone. That was all that was said.
The Tribunal asked [the applicant] when the next time it was that [Mr A] called him. [The applicant] said [Mr A] called him all the time. Sometimes [the applicant] picked up and other times he did not. [Mr A] was calling from different numbers. As soon as [the applicant] knew it was [Mr A] he would hang up lots of times.
[The applicant] told the Tribunal that the last time he received a telephone call from [Mr A] was after [the applicant] got the student visa. This happened while [the applicant] was still in India. [The applicant] told the Tribunal that [Mr A] said to him that he would be killed on his return to India and to not think that he was escaping.
[The applicant] was asked when he let his brother in Australia know about these issues. [The applicant] said he did so after he received the first telephone call. The Tribunal asked [the applicant] whether he had a plan so that he did not have to return to India once he arrived in Australia. The Tribunal put to [the applicant] that a student visa was for a definite period and questioned what his plan was at the end of that visa. [The applicant] said his plan was to extend his visa and do a bit more study. The Tribunal asked [the applicant] what he planned to do if the department said no to an extension of his student visa. [The applicant] said he might have applied to New Zealand or Canada if that happened.
The Tribunal indicated that it was struggling to understand this, because a student visa was temporary, and in the event that he was unsuccessful in applying to New Zealand or Canada, he would need to return to India. [The applicant] said to the Tribunal that his brother was obtaining Australian permanent residency and he thought that he would be able to sponsor [the applicant]. He told the Tribunal that he first learned of protection visas when he first met his migration agent a month before he was detained by immigration. He told the Tribunal he did not do anything before that date because he did not know about protection visas and was scared and could be deported. The Tribunal put to the applicant that given that [the applicant] could be deported if he was detected as being an unlawful non-citizen, it would have been an incentive for [the applicant] to do something to regularise his migration status. [The applicant] said he should have done this and had made a lot of mistakes.
If [the applicant] and his wife returned to India, [the applicant] thought that ‘they’ could kill him. He clarified that this meant [Mr A] and his family. As [the applicant] and his wife now have a daughter, when they go to take his daughter to and from school in India, [Mr A] and his family could kill him. [The applicant] confirmed to the Tribunal that none of the media articles which he submitted about ‘honour killings’ to the Tribunal involved honour killings being perpetrated by Christians. The Tribunal put to [the applicant] that country information noted that the ‘Department of Foreign Affairs and Trade did not observe significant media reporting on violence against Hindu-Christian couples’ (Department of Immigration and Border Protection – Background Paper – India: Mixed Marriage: July 2014). The Tribunal notes that ‘in general, Christians who inter-marry, although they may face disapproval, were unlikely to face violence from their families’ (Immigration and Refugee Board of Canada – Responses to Information Requests – IND104062.E – 11 May 2012).
The Tribunal put to [the applicant] that country information indicated that honour killings occurred when family are not supportive of the marriage. The Tribunal notes that ‘honour killings occur when a person is murdered by others in their family due to a perception that the victim has brought shame to the family. In India this typically occurs when a person has a relationship with someone of whom their family does not approve, either because of their caste, religion, socio-economic status or some other reason (Department of Foreign Affairs and Trade – Thematic Report on Punjab – 7 December 2016). This could be contrasted with the oral evidence provided by [the applicant] was he, his wife and child were at risk despite both his parents and the parents of his wife being supportive of the marriage. [The applicant] responded that they are a joint family and still live together. He stated that his mother-in-law was still a Hindu, but other members of his wife’s family converted to Christianity. The Tribunal sought to clarify that both [the applicant] and his wife’s parents were supportive of their marriage and he responded that they were.
The Tribunal discussed with [the applicant] the complaint that he provided to the Tribunal. The Tribunal noted that the complaint was dated 4 days prior to the Tribunal hearing. [The applicant] told the Tribunal he received this from his mother-in-law and that [Mr A] was still coming to his mother-in-law’s house. The Tribunal put to [the applicant] that it was suspicious that the complaint came into existence four days prior to the Tribunal hearing. [The applicant] said that his mother-in-law did not want to be in trouble with her brother so she did not complain or do anything, but when [the applicant’s] migration agent asked him for new evidence, he asked his mother-in-law to go to court or the police to file the complaint about the ongoing threats which is how the complaint came to be in existence. The Tribunal put to [the applicant] that it would be curious to the Tribunal’s way of thinking that a parent, whose brother made continuous threats to harm that parent’s child, child’s husband and grandchild would not file complaint until asked by [the applicant] asked her to do so. [The applicant] responded that he asked his mother-in-law to get that evidence when he was invited to attend the hearing, but his mother-in-law was a bit reluctant to go against her brother and get him in trouble until his migration agent said that the evidence was necessary. Somehow, he obtained his mother-in-law’s agreement to make the police complaint.
[The applicant’s wife] – Oral evidence provided to the Tribunal
At the conclusion of [the applicant] giving his evidence to the Tribunal, [the applicant’s wife] came into the hearing room and gave her evidence.
[The applicant’s wife] confirmed to the Tribunal that she was married [in] 2008 and after she and her husband were married, she and her husband lived with his parents. Prior to that, she lived with her mother and father in Parmarnagar, Phagwara in Punjab from 2004 until 2008. Before that and up until that point, she lived at another address with her mother and extended family, including [Mr A].
[The applicant’s wife] told the Tribunal that when she met her husband, she was living in [a town in] in Phagwara. The Tribunal asked her how far away that was from [Village 2]. [The applicant’s wife] initially said it was very close, and that in between the two there was another village. She then told the Tribunal that it was not too close, and could not say how close, but there were a few localities between there. [The applicant’s wife] told the Tribunal that she had never gone to [Village 2].
[The applicant’s wife] confirmed that she feared returning to India because of her uncle. The Tribunal asked whether he had ever specifically threatened [her]. [The applicant’s wife] told the Tribunal that when [her] mother told her family that [the applicant’s wife] and [the applicant] were in love, her uncle threatened [the applicant’s wife] for the first time. This was directed at [the applicant’s wife’s] mother. The Tribunal asked whether [Mr A] had ever threatened [the applicant’s wife] directly. [The applicant’s wife] told the Tribunal her mother had a big quarrel and fight with [Mr A] and her mother told her brother that he was no longer to visit her. [The applicant’s wife’s] mother also told her daughter to no longer visit her uncle. [The applicant’s wife] confirmed that she never interacted with her uncle after what occurred between her mother and her uncle.
[The applicant’s wife] told the Tribunal that she had her wedding occurred in Phagwara. She was asked what type of wedding she had. She told the Tribunal that her wedding occurred in a hall or palace. The Tribunal asked her what type of hall it was, and she told the Tribunal it was a marriage hall. The Tribunal asked whether she had a religious marriage or a non-religious marriage. [The applicant’s wife] told the Tribunal that she and her husband had a non-religious marriage. [The applicant’s wife] told the Tribunal that she did not invite her uncle to the wedding. The Tribunal asked what [the applicant’s wife] knew about the complaint that her uncle made against her marriage. [She] told the Tribunal that her uncle complained that [the applicant] had kidnapped her, but that it had been investigated and discovered that [the applicant] and [his wife] had a love marriage. [The applicant’s wife] was asked when her uncle had made the complaint and she said she could remember the year: It was around 2008. The Tribunal asked [the applicant’s wife] what was involved in the investigation of the complaint. [She] said the police came the police came to various family homes, spoke to relatives, and then called [her] to the police station. At the police station, [the applicant’s wife] was with her husband, her mother and her uncle. She told the Tribunal that she saw her husband at the police station but her uncle did not say anything to them. [The applicant’s wife] was asked whether any other family were present. She told the Tribunal that [the applicant’s] mother was there as well.
The Tribunal was asked whether [the applicant’s wife] was aware of any time that her uncle [Mr A] had met her husband. [She] told the Tribunal she did not think that they had. She said that all threats had been made to her mother, and her mother told [the applicant’s wife] about the threats made to her. Her uncle did this at [the applicant’s wife’s] mother’s house and to [the applicant’s wife’s] mother when she visited her parents’ house where [Mr A] still lives. The Tribunal queried why her mother would go to [the applicant’s wife’s] grandparents’ house to visit knowing that [Mr A] was there and was making threats. [The applicant’s wife] said that her mother did this because she had other brothers to visit who also lived there.
[The applicant’s wife] told the Tribunal that when she left India for Australia and she and her husband arrived on the student visa, they had no plan and were lost. [The applicant’s wife] told the Tribunal that she and her husband left India because of the threats that were made. [She] was asked what she thought she and her husband would do at the end of the student visa. She told the Tribunal that they did not think about anything initially but then thought about what they could do, and decided to lodge a protection visa. The Tribunal noted that [the applicant’s wife] and her husband had been unlawful non-citizens for four years and would have been liable for deportation once they were discovered. The Tribunal asked her why [she] did not try and sort out her migration status before 2015. [The applicant’s wife] told the Tribunal that she had no idea and they never thought about it. The Tribunal put to [her] if there was a genuine fear about returning to India, she and her husband would have done something to regularise their migration status instead of not thinking about it. [The applicant’s wife] responded that since her daughter was born, she has been sick and could not think of anything else at that time.
The Tribunal drew [the applicant’s wife’s] attention to the new complaint that had been provided to the Tribunal and asked her what she knew about it. She told the Tribunal that this was a complaint by her mother and her mother made the complaint because she was very upset with [Mr A] because he had been harassing her on a regular basis for a long time. [The applicant’s wife] said because her father had a mental condition and was sick [her] mother had no-one to protect her and that is why she lodged a complaint. [The applicant’s wife] was asked how she became aware of the complaint and [she] told the Tribunal that [her] mother complained on her own and the complaint just came to [the applicant’s wife] and her husband. [The applicant’s wife] told the Tribunal that she had spoken to her mother after her mother made the complaint to the police. The Tribunal asked [the applicant’s wife] whether she asked her mother why her mother was making the complaint now, given that the threats had been occurring for some time. [The applicant’s wife] said that her mother was pretty old now, and there was an older sister who was supporting her mother. This older sister passed away and there was no one there to look after her and her mother was sick of what was happening. The Tribunal asked [the applicant’s wife] whether her mother made the complaint on her own, or whether she and her husband had to convince her mother to make the complaint. [She] told the Tribunal that her uncles were rough people, the police were corrupt, and every time there is a problem in the village about her uncles, her uncles bribe the police so nothing is done. [The applicant’s wife] said that her mother was aware of that, that she did not want to get involved in such things, and no one was there to look after here and she finally decided to make the complaint. [The applicant’s wife] was asked whether she was surprised to receive a copy of this complaint from her mother. [The applicant’s wife] said she was not surprised because her mother had been in trouble with them for a long time. The Tribunal put to [the applicant’s wife] that it was very curious to the Tribunal that, four days before the hearing, a complaint was made by her mother, and asked whether [the applicant’s wife’s] mother spoke to her and whether she told her she was going to make a complaint to the police. [The applicant’s wife] told the Tribunal that her mother had spoken to her earlier and said that she was very tense, she could not take any more trouble from her uncle, and that she should make a complaint against [Mr A]. The Tribunal asked [the applicant’s wife] how much earlier it was. [The applicant’s wife] said her mother used to say that to [her] every time they spoke. [The applicant’s wife] was asked whether [her husband] had ever spoken to [her] mother about the police complaint, either before or after [the applicant’s wife] and [the applicant] received the police complaint. [The applicant’s wife] told the Tribunal that her mother and [the applicant] spoke all the time, but regarding the complaint, her mother said to [the applicant’s wife] that she lodged the complaint because [her] mother had no one to look after her. [The applicant’s wife] confirmed that her mother made the complaint herself. Her other did this because it was [her] mother’s brother who had made the threats, and that [the applicant] and [his wife] did not ask her mother to make the police complaint. [The applicant’s wife] said that if she was to return to India, anything could happen to them. Noting this was a broad statement, the Tribunal asked what she meant. [The applicant’s wife] said they could be forcibly separated, killed or anything like that.
Oral Evidence - [the primary applicant] and [the applicant’s wife]
After taking evidence from [the applicant] and [his wife] separately, both [the applicant] and [his wife] were present when the Tribunal raised the following issues regarding their evidence.
Utilising s.424AA of the Act, the Tribunal put the following information to the applicants and invited their responses.
First, the Tribunal was concerned that in Question 90 of the written protection visa application the applicants wrote that they decided to keep their marriage a secret because [the applicant’s wife] was a Christian and [the applicant] was a Hindu, but that after the marriage, their family was outraged because they thought it was a huge disgrace to their family and family name. They made a number of threats to [the applicant’s wife] to persuade her to convert back to Hindu. [The applicant’s wife] refused to change as she was a devoted Christian. The Tribunal put to the applicants that this claim was very different from the evidence given to the Tribunal, which had nothing to do with threats made to [the applicant’s wife] to persuade her to convert back to Hinduism, nor was [the applicant’s] family threatening his wife.
In response, [the applicant] told the Tribunal that when he and his wife got married, as [the applicant’s wife’s] mother was a Hindu, his family thought that [the applicant’s wife] was also a Hindu, but when his family came to know that his wife was a Christian, his family tried to get his wife to become a Hindu by taking her to temple and he and his wife thought that things would be normal.
In response, [the applicant’s wife] told the Tribunal that her uncle is a dangerous person who can do anything, including separating them and killing them. They do not want to go back to India.
Second, the Tribunal was concerned that in Question 92 of the written protection visa application the applicants wrote that [the applicant’s wife] was physically attacked by her male family members a number of times, and [the applicant] was attacked many times as he was trying to protect her. This claim conflicted with the oral evidence that [the applicant] provided to the Tribunal, where he never claimed to have been physically attacked. Similarly, this claim conflicted with [the applicant’s wife’s] evidence to the Tribunal where she never alleged she was physically attacked.
In response, [the applicant] said that the protection visa application was lodged three years ago, and that half of the things had not occurred yet. The Tribunal put to [the applicant] that it had real difficulty in accepting that [the applicant] would forget about the physical assaults.

In response, [the applicant’s wife] said that she did not wish to respond.
Third, the Tribunal was concerned about Question 94 of the written protection visa application where the applicants wrote that they tried to move to other parts of India but that their family managed to chase them, as their family had a wide network of friends. The oral evidence of [the applicant] was that he remained in his home and did not travel after [Mr A] stopped [the applicant] on the side of the road, which was consistent with [the applicant’s] earlier oral evidence that he lived at home with his wife and parents until he and his wife left for Australia. [The applicant’s wife’s] evidence confirmed the same. Neither [the applicant] nor [his wife] gave evidence of trying to move to other parts of India or being chased to those other areas by their families.
In response, [the applicant] told the Tribunal that he did not wish to comment.
In response, [the applicant’s wife] provided no comment.
Fourth, the Tribunal put to [the applicant] the comments he provided to the department in his Detention Client Interview [in] June 2015 where he said in Section J that he left his country of nationality to study. He did not say that he left because he was being persecuted or anything similar. In response to the Detention Client Interview question whether [the applicant] had any reason why he could not return to India, he said that he borrowed money from his mother-in-law and is unable to return. The Tribunal put to [the applicant] its view that it was surprising that [he] would give that response in the Detention Client Interview if the claims in the written protection application and his oral evidence to the Tribunal were true.
In response, [the applicant] told the Tribunal that when the officials detained him, he was not planning on what he was going to say or do and that you always get confused. He did not know about protection visas at that time, so whatever just came to his mind he said. In his mind, once he got caught he would be deported straight away. The Tribunal told [the applicant] it was struggling with the fact that he would say to the officials that he could not go back due to borrowing money from his mother-in-law when the reason [the applicant] could not go back was due to threats from his wife’s uncle. [The applicant] told the Tribunal that both things were right as he had borrowed money from his mother-in-law who supported his study. The Tribunal asked [the applicant] why he would say one thing and not the other. [The applicant] told the Tribunal that borrowing money from his mother-in-law was the thing that came to his mind.
The Tribunal also raised with [the applicant] that it was very curious that he would provide this response to the delegate when [the applicant] told the Tribunal that he saw his migration agent about a month before he was detained by officials and discussed regularising their migration status with a protection visa. [The applicant] said at the time, he was just shocked.
To the Tribunal’s way of thinking, if [the applicant] (on behalf of himself and his wife) saw a migration agent a month before his detention for the purpose of lodging a protection visa as was claimed in the oral evidence to the Tribunal, [the applicant] would have discussed his concern about returning to India. These concerns would have been on his mind at the time of his Detention Client Interview and would have been raised his concerns about returning to India in that interview.
Fifth, the Tribunal put to [the applicant’s wife] the comments she provided to the department in her Detention Client Interview [in] June 2015 where she said in Section J that her reason for coming to Australia was to study, and that she could not return to India because she borrowed money from her mother and was unable to return. Again, this evidence was different to reasons contained in the written application for a protection visa and the oral evidence given to the Tribunal about the reasons for leaving India and being unable to return there.
In response, [the applicant’s wife] told the Tribunal that when the officials came to her place, it was late in the evening, her daughter was sleeping and [the applicant’s wife] was not very well. There were lots of officials. She was very scared. They told her something in English which she did not understand. One of the officials who spoke Hindi told her why the officials were there. [The applicant’s wife] said that there was a lot of disturbance, she was scared, and that she did not get a chance to think of what to say, so she just said whatever came to her mind. Again, the Tribunal indicated it struggled with this response.
Sixth, the answer in the written protection application at Question 93 (the Tribunal mistakenly referred to Question 94 at the hearing) was that police did not want to be involved in this matter, but the oral evidence of both [the applicant] and [his wife] was that they did have police involvement as the police investigated the complaint that the abduction allegation, and the police were satisfied that the parties had entered into a love marriage.
In response, [the applicant] told the Tribunal that in India police are corrupt and get money and bribes, and are only interested in themselves. The Tribunal put to [the applicant] that on the evidence given to the Tribunal by both [the applicant] and [his wife], the police did get involved and therefore what was written in the written protection visa application was not true. [The applicant] told the Tribunal that when he was in the detention centre filing out the protection visa application form, there were too many questions, too many things and it was getting very difficult over there. His brother was sitting there along with the migration agent and lots of questions were filled in by his brother and the agent, which could account for why it was wrong. The Tribunal put to the applicants that this evidence was different to evidence that they had given to the Tribunal at the start of the hearing that [the applicant] and [his wife] completed the application together and then gave the form to [the applicant’s] brother who gave it to the migration agent. [The applicant] told the Tribunal that his brother came to the detention centre four or five times and on each occasion they completed a bit of the form together.
In response, [the applicant’s wife] said she did not wish to comment.
Seventh, the Tribunal raised with [the applicant’s wife] the response she had given to the delegate in the protection visa interview about the delay for lodging the complaint. In that interview, [the applicant’s wife] told the delegate that she only came to know that she did not have a visa once she was advised of this by compliance, as beforehand her husband was working and an employer was promising to sponsor him. [The applicant’s wife] noted to the delegate that she was shocked that her husband had hid the truth from her that they did not have a visa. The Tribunal noted that this was different from the oral evidence given to the Tribunal that both [the applicant] and [his wife] knew they were unlawful.
In response, [the applicant’s wife] said she did not wish to comment.
Eighth, the Tribunal raised with [the applicant] and [his wife] the inconsistencies between the oral evidence that each of them provided to the Tribunal.
The Tribunal noted that [the applicant’s] oral evidence was that he and his wife got married in a religious ceremony at a Sikh Temple, but that [the applicant’s wife’s] evidence was that she and her husband got married in a marriage palace in a non-religious ceremony.
In response, [the applicant’s wife] told the Tribunal that marriage happens twice. One is at a religious place, and the other is at a hall. The Tribunal put to [the applicant’s wife] that that was not the evidence she gave to the Tribunal.
The Tribunal noted that [the applicant’s wife’s] evidence was that, apart from the time at the police station, [the applicant] was never with her uncle, which was very different from the evidence that [the applicant] gave to the Tribunal that he had seen him and had interactions with her uncle on other occasions.
In response, [the applicant] said he did not tell [his wife] about the other instances because he thought they would do nothing and were just trying to scare him. The Tribunal put to the applicants that it was struggling to understand that [the applicant] would not tell his wife about the instance when they faced claims of harm together as a result of their relationship, and that [the applicant] would not disclose this to his wife. [The applicant] said at the time he was newly married and thought that [Mr A] might not be serious, but after some time, he realised it was serious. The Tribunal put to [the applicant] that the fact he had not told his wife, even after he realised the threats were serious, of the meeting with [Mr A] on the road, was incredulous.
The Tribunal noted the evidence given by [the applicant] and [his wife] about the circumstances of the most recent police complaint. [the applicant’s] evidence was that he had spoken to his mother-in-law and she was initially reluctant to make a complaint because she did not want to get her brother into trouble, but did so after [the applicant] told her that their migration agent told them that it needed to be done to show evidence to the Tribunal. In contrast, [the applicant’s wife] told the Tribunal that they did not ask her mother to do this and that her mother did this of her own accord after she no longer had the support of family that had passed away.
In response, [the applicant] told the Tribunal that he normally does not talk to his wife much about these problems because of her back problems, so when he spoke to his mother-in-law, he did not disclose a lot of things to his wife because he feels that his wife should not have any trouble anymore.
In response, [the applicant’s wife] told the Tribunal that it is true that her husband does not usually share things with her, and would only do so if it was really needed.
At the conclusion of the hearing, the Tribunal noted to [the applicant] and [his wife] that it understood that their daughter’s claims were based on the fact that she was a child from an interreligious-marriage and that the Tribunal would need to consider this as well. The Tribunal asked [the applicant] and [his wife] whether there was anything else they wished to raise at the hearing, and [the applicant’s wife] said that it dangerous for her child in India and they could be separated and killed if they return to India.
FINDINGS AND REASONS
The issue in this case is whether the applicants are refugees and if not, whether they meet the criteria for complimentary protection. The Tribunal also needs to consider whether any of the applicants are members of the same family unit as a person who holds a protection visa.
The Tribunal is satisfied as to the identities of the three applicants, that they are citizens of India and that none of the applicants hold any other citizenship or have a current right to enter and reside in a third country.
The delegate noted that [the applicant] and [his wife] submitted documentary evidence of their family relationship as part of their application for the … [student visa] and that these documents were accepted as genuine, and that the department accepted that the applicant and [his wife] had been in a marital relationship since 2008.
On the same basis as the delegate, the Tribunal accepts that [the applicant], [the applicant’s wife] and [their daughter] are members of the same family unit as defined in Regulation 1.12 of the Regulations.
However, the Tribunal has concluded that the applicants are not witnesses of truth and that they have fabricated their claims as a means of remaining in Australia. As a result, the Tribunal has concluded that the decision under review should be affirmed for the following reasons:
The Tribunal is not satisfied that [the applicant] and [his wife] have an inter-religious marriage. While the Tribunal notes that [the applicant’s wife] was able to tell the delegate about Christianity and produced documentation to support the proposition that she was a Christian, the inconsistency between the evidence provided by [the applicant] and [his wife] about their marriage ceremony was considerable. The Tribunal was also concerned that [the applicant] gave evidence of his wife living in [Village 2] when they first met, but [the applicant’s wife] telling the Tribunal that she had never been to [Village 2] and lived in a different place. In regards to the issue of the religious ceremony, [the applicant] told the Tribunal that they had a religious ceremony in a Sikh Temple and [the applicant’s wife] initially told the Tribunal that they had a non-religious wedding in a marriage palace, but later changed that evidence to suggest that she and her husband in fact had two ceremonies. The Tribunal is satisfied that [the applicant’s wife] changed this evidence in an attempt to remedy the inconsistency in the oral evidence provided by her and her husband. The Tribunal does not accept the explanation for providing this inconsistent evidence, as the applicants would have told the Tribunal that they were married twice if that were the case. This was a relatively simple question and to the Tribunal’s way of thinking, it suggested that the applicants were fabricating their evidence.
There was inconsistent evidence about how the written protection visa came to be completed. Initially, the Tribunal was told that the form was completed by [the applicant] and [his wife] together in detention, where it was then handed to [the applicant’s] brother who passed it onto their migration agent for lodgement. When the Tribunal started raising inconsistencies between the written protection visa application and the oral evidence given to the Tribunal, there was an attempt to change that evidence by now suggesting that the form was completed over a period of time, with the assistance of [the applicant’s] brother, and that [the applicant] and the migration agent were responsible for some of the answers. In the Tribunal’s view, the fact that there was inconsistent evidence about something as basic as how the protection visa application came to be generated and lodged is troubling and suggests that the applicants will change their evidence in an attempt to achieve a positive outcome.
The evidence about the delay in seeking protection was also not persuasive. [The applicant’s wife’s] evidence about the reason for the delay was inconsistent between what she told the delegate and what she told the Tribunal. On one hand, [the applicant’s wife] sought to explain the reason for the delay being on the basis that she thought she still had a visa, but then told the Tribunal that she knew she was unlawful and that is why she and her husband saw a migration agent, and they did so because they could not return to India because of what occurred with her uncle. The evidence about the delay is fanciful, especially given that that [the applicant’s] brother was already in Australia and was aware of the threats, as he was the one who suggested to [the applicant] to travel to Australia. [The applicant] could have gotten his brother to assist him to find out how he could remain in Australia permanently once [the applicant] arrived in Australia with his family. In the Tribunal’s view, the applicants would have done so if their claims were genuine.
A lot of the evidence that was given to the Tribunal was, in the Tribunal’s view, incredulous. The Tribunal does not accept that [the applicant] would get threatening phone calls from [Mr A], yet keep the same telephone number because it was a phone number that his father was given as part of his employment. It is incredulous to think that [the applicant], who cites the threatening phone calls as a reason why he cannot return to India, would not choose to use no longer use that mobile number, especially when the number was his father’s number. The Tribunal also finds the evidence given about the threats that were made on the phone vague and unpersuasive. Indeed, the only thing [the applicant] could tell the Tribunal about what [Mr A] had said was that [the applicant] would face the consequences of his actions, would be killed and to not think he was escaping. Apart from that, [the applicant] was only able to repeatedly tell the Tribunal that he was ‘threatened’ without any specifics, with a prime example being the first telephone call he received from [Mr A]. [The applicant] told the Tribunal he had been threatened, but when asked by the Tribunal about specifics in that phone call, he told the Tribunal that [Mr A] told him he was not happy with the marriage, and [the applicant] did not provide any evidence that threats were actually made in that call. In the Tribunal’s view, [the applicant’s] evidence about ‘threats’ was vague because no threats had been made. In the Tribunal’s assessment of [the applicant] as a witness, the Tribunal finds that [the applicant] would cite the word ‘threat’ in the hope that he would not need to provide more specifics, and that the reason for doing so was because there were none. Additionally, the Tribunal does not accept as credible that [the applicant’s wife’s] mother, whose brother wished to harm her daughter, daughter’s husband and by implication her granddaughter, would continue to visit her parents (where she would see [Mr A] because he lived with their parents). The Tribunal is satisfied that If it were true that [Mr A] had made these threats, or engaged in any of the behaviour alleged by the applicants, [the applicant’s wife’s] mother would put herself in a position where she had the potential to have any interaction with her brother.
Not only were there inconsistencies between the written protection visa application and the oral evidence given to the Tribunal, but there was inconsistency in the evidence given by [the applicant] and [his wife]. As noted in the consideration of the applicants claims, in the written protection visa application, it was claimed the marriage was a secret and both families opposed the marriage, while the oral evidence was that the marriage was not a secret (noting [the applicant’s] evidence that both families attended the wedding at the Sikh Temple), and that only [the applicant’s wife’s] uncle and his family opposed the marriage. The written protection application claimed that [the applicant’s wife] was physically attacked by her male family members a number of times, but neither [the applicant] or [his wife] gave evidence of any such attacks at the hearing. The written application claimed that [the applicant] was attacked many times because he was trying to protect his wife, but the only evidence about an attack that [the applicant] could tell the Tribunal was when [Mr A] stopped him on the side of the road, and no violence occurred. The Tribunal notes that [the applicant] was inconsistent even about this incident, having initially told the Tribunal that there were two physical instances involving [Mr A], and later changing this to one instance. In another instance of inconsistency, [the applicant’s wife] told the Tribunal that her uncle had never physically harmed her husband. These inconsistencies are stark and the applicants’ attempts to explain them are not persuasive.
Both applicants gave oral evidence to the Tribunal that they lived together at the same address prior to moving to Australia. [The applicant] stayed inside the house because of [Mr A]. This contrasted with the written protection application claims that they tried to move to other parts of India and their family chased them. There were written claims that [the applicant] and [his wife] could not find any help because the police did not want to get involved in this matter, but no oral evidence was given to the Tribunal that such help was sought and refused. Indeed, the oral evidence was that the police investigated the claim of abduction made by [Mr A] and following investigation, they dismissed the claim. The Tribunal finds it fanciful that [the applicant] would not disclose to his wife that [Mr A] had stopped him on the side of the road where [Mr A] allegedly told [the applicant] that he faced dire consequences, because according to [the applicant] (noting the change of being physically present with [Mr A] twice to one time), this was the only time (apart from the police station) that he had seen [Mr A]. In the Tribunal’s view, if [Mr A] had had intercepted [the applicant] on the side of the road, [the applicant] would have told his wife about it. The Tribunal does not accept [the applicant’s] explanations as to why he failed to do so.

The inconsistent evidence about the generation of the recent police complaint is also troubling. On one hand, [the applicant] told the Tribunal that his mother-in-law was reluctant to make the report because she did not want to get her brother in trouble (which is curious in itself, given that [Mr A] was threatening his sister’s child, child’s husband and by implication grandchild), and only did so when she was told that it was necessary to get evidence as requested by the applicant’s migration agent. On the other hand, [the applicant’s wife] told the Tribunal that the reason her mother did not make a complaint earlier was because she was protected by siblings and now decided to do so because those siblings had died and she had no support. [The applicant’s wife] told the Tribunal that her mother did not need to be asked to make this complaint and did so of her own accord. The Tribunal does not accept that that the inconsistency in the evidence was due to the fact that [the applicant] and [his wife] do not share information, especially in light of the fact that [the applicant’s wife] told the Tribunal that her husband would share information if it was serious. In the Tribunal’s view, making a claim for protection in Australia because of threats that an extended family member is making, is quite a serious thing and would have been discussed between [the applicant] and his wife if it were true.
Further, the evidence provided in the Detention Client Interviews about the reason for leaving India and why the applicants were unwilling to return was markedly different to the oral evidence given to the Tribunal. The Tribunal does not accept the explanations for telling those officials that the applicants left India to study and could not go back because they owed [the applicant’s wife’s] mother money. It is unreasonable to believe that both applicants would not tell the officials that they left India because of the threats and could not return there because of those threats, and instead talk about money being the reason that they could not return, and study was the reason that they came to Australia.
The cumulative effect of the inconsistencies in the evidence presented by the applicants, together with the incredulous aspects of other bits of their evidence, fundamentally undermines the credibility of the applicants in the Tribunal’s assessment of the witnesses. As such, the Tribunal places no weight on the applicants’ claims. The Tribunal is satisfied that the applicants have fabricated their claims as a means of remaining in Australia.
The Tribunal places no weight on the documentation that was provided by the applicants in support of [the applicant’s wife’s] Christianity. Given the fact that the Tribunal has found the applicants to be not credible witnesses, the Tribunal is satisfied that that documentation was fabricated in an attempt to lend credibility to the claims. Similarly, the Tribunal places no weight on the documentation that was provided by the applicants in support of the claim that [the applicant’s wife’s] mother had made a complaint to the police against her brother, nor any weight on the documentation that asserts the police investigated an allegation made by [Mr A] that his niece had been abducted. The Tribunal gives no weight to the affidavit of [the applicant’s wife’s] mother which was submitted by the applicants to the Tribunal. Given the fact that the Tribunal has found the applicants are not credible witnesses, the Tribunal is satisfied that the documentation was fabricated in an attempt to lend credibility to the claims.
The Tribunal is not satisfied that [the applicant] and [his wife] have an inter-faith marriage. The Tribunal cannot be satisfied as to whether they married in a Sikh Temple and were Sikhs, a Hindu Temple and were Hindus, or a combination of those variations. The credibility concerns in respect to [the applicant] and [his wife] leave the Tribunal in a position where it cannot give any weight to their evidence about their marriage, other than, for the purpose of being members of the same family unit, they are in fact married.
The Tribunal is not satisfied that any threats have been made to [the applicant], [his wife] or their daughter, either directly or through [the applicant’s wife’s] mother. The Tribunal is not satisfied that there has been any past physical harm, altercation or interaction between [Mr A], his family or the applicants. The Tribunal is not satisfied that [Mr A] has made any police complaint, or that he is subject of any police complaint, nor is the Tribunal satisfied that the applicants have contacted the Human Rights Commission in India or the police. The Tribunal is not satisfied that the applicants will be subject to ‘honour killings’. The Tribunal is satisfied that the applicants’ claims have been fabricated solely for the basis of remaining in Australia.
Specifically in relation to [the applicant’s daughter], the Tribunal notes that the protection claims were generated on the basis that she would suffer harm on the basis that she was a child from an inter-religious marriage. As noted earlier, the Tribunal does not accept that [the applicant’s daughter] is the product of such a marriage.
CONCLUSION
Refugee
Based on all the evidence before the Tribunal, and having considered the claims singularly and on a cumulative basis, the Tribunal does not accept that there is a real chance now or in the foreseeable future that the applicants will face serious harm for the reasons claimed by them.
Complementary Protection
The Tribunal has considered on the evidence before it, whether there are substantial grounds for believing that there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India, now or in the foreseeable future.
As the Tribunal has found that the applicants are not credible witnesses, it does not accept that the applicants will be arbitrarily deprived of their lives, face the death penalty, be tortured, will be subjected to cruel, inhuman treatment or punishment, or be subjected to degrading treatment or punishment.
Members of the same family unit as a person who holds a protection visa
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Nathan Goetz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally 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;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but 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 Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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[2019] AATA 5701

17 May 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction