1603428 (Refugee)

[2018] AATA 5412

1603428 (Refugee) [2018] AATA 5412 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603428

COUNTRY OF REFERENCE:                 India

MEMBER:Jason Pennell

DATE:7 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa

Statement made on 7 December 2018 at 12.56pm

CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh –  inter-caste marriage – applicant did not appear at hearing – domestic violence – divorce – honour killings – mental health – inconsistent claims – insufficient evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 February 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 July 2014. The delegate refused to grant the visa on the basis that she was not satisfied that the applicants were people to whom Australia has protection obligations as outlined in s. 36(a) or (aa) of the Migration Act 1958 (the Act).

3. The applicant’s review hearing was initially listed for 15 January 2018. By a letter dated 12 January 2018 the applicant requested an adjournment of the hearing based on her medical condition, which was granted by the Tribunal.

4. On 17 January 2018 the Tribunal rescheduled the hearing to be held on 1 March 2018. By a ‘Response to Hearing Invitation’ dated 29 January 2018 the applicant confirmed that she would attend the hearing on 1 March 2018. On 15 February 2018 and 26 February 2018 the applicant requested a further postponement of the hearing. Both requests were considered by the Tribunal in light of the medical evidence provided on each occasion. The Tribunal determined on each occasion that the hearing would proceed due to the fact the applicant had failed to provide any information about her diagnosis, duration and prognosis of her medical condition that prevented her from participating in the hearing on 1 March 2018.

5. The applicant did not appear at the hearing on 1 March 2018 to give evidence and present arguments relating to her case. The applicant representative appeared at the hearing and was prepared make submissions in support of the applicant but was not able to give any evidence. He did not seek any further postponement of the hearing on behalf of the applicant. By a letter dated 5 March 2018 the Tribunal advised the applicant that it intended to proceed and make a determination of the matter without any further hearing and invited the applicant to make any submission by 9 April 2018. The applicant’s representative forwarded to the Tribunal a ‘Working File’ relevant to the applicants claim.

6. On 8 October 2018 the Tribunal invited the applicant to a further hearing on 7 November 2018. Given the passage of time and the fact that she had not appeared at the hearing on 1 March 2018 the Tribunal invited the applicant to the further hearing to ensure that she had every opportunity to give evidence and present arguments relating to her case. On  23 October 2018 the applicant forwarded two a medical reports dated 23 October 2018 and 14 October 2018 to the Tribunal requesting a postponement of the hearing. While the medical reports indicated that the applicant did have a medical condition they did not provide any diagnosis or prognosis of the applicant’s medical condition. In addition they did not indicate how the applicant would be prevented from giving evidence and presenting arguments at a hearing before the Tribunal. As a result the Tribunal determined to proceed with the hearing. The applicant did not appear at the hearing for the purposes of giving evidence and presenting arguments in support of her claim for protection.  As a result the Tribunal has determined to proceed to determine the matter without any further hearing.  

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

RELEVANT LAW

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

1. 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).

2. 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.

3. 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.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] 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.

   [1] s.91R(1)(b)

   [2] s.91R(1)(c) of the Act

6. 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.

7. 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.[3]

   [3] s.91R(1)(a) of the Act

8. 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.

9. 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.

10. 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.

Complementary protection criterion

1. 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’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4] 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.[5]

   [4] s.5(1) of the Act

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

Section 499 Ministerial Direction

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicants meet the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicants’ migration history

1. The applicant was born in [Village 1], Punjab, India on [date]. She claims to speak, read and write Punjabi, Hindi and English. She states that she follows the Sikh religion and identifies as an ethnic ‘Sikh.’[6] 

   [6]    Applicants Protection Application dated 2 July 2014; [File numbers].

2. The applicant states that her parents and [siblings] all reside in India.[7]

   [7]    Delegates decision dated 23 February 2016 @ p.2; Applicants Protection Application dated 2 July 2014; [File numbers].

3. The applicant first arrived in Australia [in] May 2008, as the holder of a [temporary] Visa. Her visa allowed for a stay in Australia until 25 August 2010.  

4. The applicant’s movement records indicated that the applicant departed Australia on three occasions including [in] 2009, [in] 2011 and [in] 2014. The applicant last arrived in Australia on [in] March 2014.

5. The applicant applied for a  [Temporary] visa ([Details deleted]) on 14 March 2012 which was granted on 29 March 2013. The applicant applied for a further  [temporary] visa on 6 June 2014 which was deemed to be invalid. The applicant was subsequently granted a Bridging visa  [on] 2 July 2014 and applied for a Protection ([subclass]) visa on 4 July 2014. The applicant has not departed Australia since her last arrival.

Country of Reference

1. The applicant claims to be citizen of the Republic of India. The applicant provided the department with her passport a copy of which is located on the department file.[8]

   [8]    [File number]

2. The applicant’s passport was issued in [City 1], India and states that she was born in [Village 1], Punjab, India on [date] and that her nationality is Indian.[9] There is no evidence to suggest that she has a right to enter and reside, whether temporarily or permanently, in any other country. Therefore, based on the applicant’s passport, the Tribunal finds that she is an Indian citizen and accordingly the applicant’s protection claims will be assessed against India as the country of reference for the purposes of assessing protection obligations under the refugee Convention.

   [9]    ibid

3. In addition the Tribunal is satisfied that India is the applicants receiving country as defined in section 5 of the Migration Act, for the purposes of assessing the complementary protection criteria.

4. The Tribunal is therefore satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that she is not excluded from Australia's protection obligations under s36(3).

The applicant’s protection claims

1. The applicant provided written claim attached to her application for protection visa[10] and are summarised in the delegate’s decision as follows:

   [10] Applicants Protection Application dated 2 July 2014; [File numbers].

   (a)She fears returning to India because she entered an inter-caste marriage.

   (b)She got married [in] November 2007 in [City 2], India.

   (c)She claims that the marriage was a ‘secret marriage’ as only her parents and her in-laws were aware of the ceremony.

   (d)She convinced her parents that her ex-husband belonged to a rich and reputed family with good political support.

   (e)When she and her husband arrived in Australia, her ex-husband told her to keep their marriage a secret and not to reveal it to anyone. He also advised her that he will be living separately, at his [sibling’s] house.

   (f)After a month in Australia, her ex-husband told her that he was going to work in  [various locations].

   (g)She tried calling him on several occasions but he had changed his contact number.

   (h)She became depressed and on one occasion, she [hurt herself] and was admitted to hospital.

   (i)She travelled back to India to try to contact her in-laws but they refused to make any contact with her.

   (j)When she decided to apply for a further visa, she did not include her ex-husband on the application and when he found out about this, he requested to meet up with her. When she did, he slapped her and assaulted her for not including him on the application as a dependant.

   (k)She travelled back to India on a second occasion to make on last attempt to meet up with her in-laws but it never happened.

   (l)Her parents also refused to support her after the breakdown of her marriage.

   (m)Her ex-husband told her that he wanted to initiate a divorce.

   (n)Most of her relatives were now aware of her marriage and separation. Her father called her and told her that he does not want to have any relation with her because she has given the family a bad name. Her relatives have also threatened her as she has given the whole family a bad name.

   (o)She travelled back to Australia a third time and made contact with her husband. On meeting him, she confronted by  [his] friends who were armed with guns and other deadly weapons. He threatened to kill her and her family if she tried to make a complaint to police.

   COUNTRY INFORMATION

2. The making its decision the Tribunal has considered the country information provided the Department of Foreign Affairs and Trade (DFAT) provided in the DFAT Country Information Report, India 17 October 2018 (DFAT India report) and the DFAT Thematic Report Indian State of Punjab dated 7 December 2016. In particular the Thematic Report notes in relation to health as follows:   

   Health

   2.19 In line with its relative prosperity, Punjab has better health outcomes in a number of key areas compared with other states in India. According to the Government of India’s Economic Survey, life expectancy at birth in Punjab is 71.1 years, the fourth highest of major states. Punjab also has the fourth lowest infant mortality rate. Around 99 per cent of households in Punjab have access to safe drinking water, the third highest rate of all states and union territories.

   Marriage

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

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

   3.35 There is also significant social pressure for individuals to marry within their own caste and/or religion. While statistics for inter-caste and inter-faith marriages can be variable, an India Human Development Survey conducted in November 2014 reported that just five per cent of Indian women had married a husband from a different caste, with inter-caste marriage being most common in Gujarat and Bihar (over 11 per cent) and rarest in Madhya Pradesh (less than one per cent). Since the election of the Modi government in May 2014, Hindu right-wing groups that claim proximity to the BJP have stepped up social pressure and violence against inter-faith marriages involving Hindus. In rural India, village councils have played a role in upholding conservative community views about marriage and relationships. In January 2014, the Supreme Court intervened after a woman in West Bengal was allegedly gang-raped on the orders of a village council as punishment for having a relationship with a man from a different caste. So-called “honour killings”, committed by the families and communities of those involved in inter-faith and inter-caste relationships, are particularly prevalent in villages and small towns in north India. It is estimated that at least 1,000 honour killings take place each year in India. Members of lower castes are vulnerable to violent reprisals if they are perceived to have entered relationships with members of higher castes.

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility 

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

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[11]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[12]

   [11] s.5AAA Migration Act 1958.

   [12] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[13] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

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

4. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[14] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

   Accepted facts

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

5. The applicant did not appear before the Tribunal on 1 March 2018 and 7 November 2018 to give evidence and present arguments relating to her case. However, the delegate’s decision notes that the applicant did attend an interview with the delegate on 9 June 2015.[15] Therefore having considered the applicant’s protection visa application and the evidence provided by the applicant to the delegate as detailed in the delegates decision dated 23 February 2016 the Tribunal accepts and finds that:

   (a)The applicant was born on [date] in [Village 1], Punjab, India

   (b)The applicant is a citizen of India, and of the Sikh faith.

   (c)The applicant speaks, reads and writes English, Punjabi and Hindi.

   (d)The applicant’s parents are alive and remain living in Punjab, India.

   (e)The applicant has [a number of siblings] who all continue to live in Punjab, India.

   (f)The applicant attended  [School] in [Village 2], Punjab, India.

   (g)The applicant was married on [in] September 2007 to  [(the] ex-husband).

   (h)The applicant arrived in Australia [in] May 2008, as the holder of a [temporary] Visa.

   [15] Delegate’s decision dated 23 February 2016 p.4; [File number].

6. The applicant stated to the delegate that she got married in November 2007 but the marriage registration paper provided by the applicant indicates that she got married [in] September 2007. She claimed that the marriage was a secret as only her parents and her in laws were aware of the ceremony. She claims that she convinced her parents that her ex-husband belonged to a rich and reputable family. In response to the delegates asking about her wedding the applicant stated that the wedding was ‘religious ceremony, not a party.’[16] In addition, the applicant confirmed to the delegate that ‘his parents and family and her family’ attended the wedding ceremony.

   [16] Delegate’s decision dated 23 February 2016 p.7; [File number].

7. The applicant claimed in her interview with the delegate that she had initiated court divorce proceedings.[17] There was no documentary evidence on the department file or the Tribunal file that indicated that she was divorced or that she had commenced such proceedings. Nevertheless, the Tribunal accepts that the applicant is now divorced from her ex-husband.

   [17] Delegate’s decision dated 23 February 2016 p.5; [File number].

8. The applicant’s evidence to the delegate was that her husband was included in her initial [temporary] visa application as a dependant and they both travelled to Australia together. Her evidence to the delegate was that when they arrived in Australia her ex-husband informed her that he would be living with his [sibling] and did not want her to reveal their marriage to anyone. After a month in Australia the husband called the applicant and said that he was going to work in [various locations]. The applicant said to the delegate that the husband had switched off his phone and that she was not able to contact him. After a month he told her that he did not want to continue a relationship with her, as a result she became depressed and attempted suicide was admitted to  [Hospital].[18] The Tribunal accepts the evidence of the applicant that her ex-husband had left their marriage soon after arriving in Australia and that she had become depressed as a result.

The Applicant’s Husband.

[18] Ibid

1. The applicant stated to the delegate that when she applied for a subsequent [temporary] visa she did not include her husband as a dependent. As a result her husband arranged to meet with her upon which he ‘he slapped and assaulted her physically.’[19]  While the applicant did not provide any evidence to support her claim, the Tribunal accepts the applicant’s evidence that her husband had assaulted her as claimed. However, on the applicant’s evidence the incident was a one off event rather than as part of a course of conduct by which she feared being persecuted. The applicant’s statement in her protection visa application indicates that she did not fear harm from her husband as she made contact with her husband upon her return to India in 2014.[20]

   [19] ibid

   [20] ibid

2. The applicant confirmed with the delegate that she had returned to India to meet up with her in-laws to try and work things out but that they did not want to meet her.[21] The applicant said to the delegate that on each occasion that she had returned to India she stayed with her parents.

   [21] Delegate’s decision dated 23 February 2016 p.8; [File number]

3. In 2014 the applicant returned to India. Her evidence to the delegate was that she attended her in-laws house and her ex-husband called her and asked her ‘how could you leave me there? She said that he had asked to meet her ‘in order to ‘save our marriage.’ The applicant evidence was that she had agreed to meet her husband and when she did she said that he came with friends who were all carrying weapons. The applicant said that her ex-husband said to her that he was giving her a warning and that the next time he sees her he will not spare her.[22] The applicant’s evidence was that he said to her that ‘the police are mine and if you tell the police, someone from your family will surely die.’

   [22] Delegate’s decision dated 23 February 2016 p.8; [File number];

4. The applicants evidence to the delegate is contrary to her statement in her protection visa application in which she stated that she had ‘finally made my mind to return to India. I made contact with my husband and asked to meet him.’[23] It is also inconsistent with her evidence to the delegate that her ex-husband had left their marriage her soon after arriving in Australia. Given that her ex-husband had displayed a desire not continue their relationship the Tribunal does not accept that her ex-husband would have called her to arrange to meet to her for the purposes of threatening her. Therefore, in the absence of any evidence to support the applicant’s evidence, the Tribunal does not accept the applicant evidence that her ex-husband threatened her as claimed.

   [23] Ibid; The delegate’s decision is adverse information for the purposes of s.424A, however, in this case, the delegate’s decision was provided by the applicant and as such the exception under s.424(3)(b) applies.

5. The applicant’s statement in her protection visa indicates that she did not fear her ex-husband upon her return to India.  The applicant was not able to explain to the delegate why, after four years of separation her ex-husband wanted to meet her and to harm her.  The Tribunal notes that the medical report of [Mr A] dated [in] March 2013 (‘[Mr A] Report’) confirmed that the applicant had been married but her ex-husband had deserted her soon after arriving in Australia. It stated that she had subsequently been engaged but her engagement had been broken.[24] From the report it appears that the applicant had accepted the separation of her husband and moved on with life. As a result the tribunal does not accept that the applicant was threatened or abused by the ex-husband as claimed.   

   [24] Medical report by [Mr A] dated [in] March 2013; [File number]

6. Finally, the applicant claimed that she does not want to take legal action against her husband as he is a rich man and that his family can manipulate the case by giving bribes to the police. Despite the applicants claim in her interview with the delegate she stated that she had already initiated court divorce proceedings.[25] The applicant has not provided any evidence of any legal proceeding initiated against her ex-husband. Nevertheless, given her evidence that she had already initiated proceedings against her ex-husband, the Tribunal finds that she did not fear any harm from her ex-husband as a result of initiating proceedings. Accordingly, the Tribunal finds that there is no real chance the applicant will suffer serious harm by reason of her taking legal action against her ex-husband.   

   [25] Delegate’s decision dated 23 February 2016 p.5; [File number].

7. In addition, there is no suggestion that her ex-husband wished to harm the applicant because of her race, religion, nationality, membership of a particular social group or political opinion. The Tribunal has accepted that the applicant was a victim of domestic violence, but finds that it was peculiar to the personal relationship between the applicant and her ex-husband. Based on the applicant’s statement and evidence to the delegate   the Tribunal does not accept her ex-husband was targeting her by reason of her membership of a particular social group (for example women, or married women in India).[26] Rather the tribunal finds that the applicant’s claim against her ex-husband is a personal dispute based on her personal relationship with him. While the Tribunal has accepted that the applicants ex-husband ‘slapped and assaulted her physically’ as claimed it finds that the ex-husbands actions were directed toward her as a result of their personal relationship and not for any convention reason.[27]

   [26] MIMA v Khawar (2002) 210 CLR 1

   [27] Article 1A(2) of the 1951 refugees Convention as amended by the 1967 Refugees Protocol. MIMA v Khawar (2002) 210 CLR 1

8. Therefore, having considered the applicants claim, her evidence to the delegate and the relevant documentary evidence on the department and Tribunal’s file, the Tribunal is satisfied that she does not face any harm from her ex-husband. The fact that the applicant’s ex-husband left the marriage soon after arriving in Australia, approximately 10 years ago and that his family did not want to meet with her in India to reconcile their relationship, the Tribunal finds that there is no real chance she will be face serious harm on her return to India.  

The Applicant’s Family

1. The applicant’s evidence to the delegate was that she had told her family all about what happened with her ex-husband in 2011. The applicant’s evidence was that her father had said to her that it had been her choice (to marry the ex-husband) and as a result he no longer wanted a relationship with her.[28] The applicant claims that most of her relatives are now aware that her marriage had failed and that she and her husband are now separated. She states that her father and relatives don’t want to have any relationship with her because she has given the family a bad name.

   [28] Delegate’s decision dated 23 February 2016 p.7; [File number]

2. The country information indicates that marriage is important to the Sikh faith. In particular it plays an important role in strengthening family life and raising children.[29]  However, Sikhs accept that divorce is sometimes inevitable.[30] A marriage is a commitment made in front of Waheguru and cannot easily be broken. However, if there is a problem with the relationship often the community will try to help resolve the situation. However, if one party refuses to heal the marriage the other partner can ask the community for permission to divorce and remarry.[31] In previous times if the marriage broke down, the woman would leave her husband and go and stay with her parents. Nowadays, the partners may live separately, or apply for a civil divorce.[32]

   [29] Sikhism - Marriage And Divorce, Discussion in 'Essays on Sikhism' started by Aman Singh, Aug 15, 2009, ibid

   [31] ibid

   [32] >

   The DFAT report notes that in India there remains pressure for individuals to marry according to their parents’ wishes and in particular within their own caste or religion. However, while the DFAT report notes that the divorce rate in India is comparatively very low, it reports that in recent years the divorce rate in India has increased.[33]  

   [33] DFAT Country Information report dated 15 July 2015 @ p.13.Report dated

3. However, despite claiming that in 2011 her father declared that he no longer wanted a relationship with her, the applicant’s evidence to the delegate was that she returned to India in 2014 and stayed with her parents at their home. As a result, the applicant did not fear any harm from her father or other her relatives by staying at her parents’ home. Further,  the medical report by [Mr B] dated [in] October 2015 (‘the [Mr B] Report’) refers to the applicant as having come from a close family in which her parents were very supportive.[34] Finally, the applicant did not identify any of her relatives who she claims had threatened to harm her. In addition, she did not provide any evidence or details of the threats she says she received from her relatives as a result of giving the family a bad name as claimed. As a result, the Tribunal does not accept the applicants claim that her father and relative do not want any relationship with her. Accordingly it finds that there is no real chance the applicant will suffer serious harm by reason of no longer having a relationship with her father or other relatives. . 

Honour Killing.

[34] Mecial Report [Mr B] dated [in] October 2015, AAT file No 1603428 f156

1. Finally, while the applicant made no specific claim, on the material before the Tribunal it may tolerably be claimed that the applicant fears being the subject of an honour killing by either her family or her ex-husbands family upon her return to India..

2. The applicant’s evidence was that she had tried to make contact with her ex-husband’s family and they had refused to meet her. In addition while she had claimed that her father did not want a relationship with her there was no evidence that he had threatened her physically or that he specifically excluded her from him and his family. In fact her evidence to the delegate was that when she returned to India in 2014 she stayed with her family at her parents’ home. In addition, the [Mr B] Report refers to the applicant as having come from a close family in which her parents were very supportive.[35] While, the applicant did claim that as a result of having given the family a bad name her relatives had threatened her, she did say by whom and did not provide any detail of the threats.  Accordingly,  the Tribunal does not accept that the applicant was threatened by relatives as claimed.

   [35] Mecial Report [Mr B] dated [in] October 2015, AAT file No 1603428 f156

3. There was no suggestion by the applicant that she faces a real chance of serious harm from members of her family or within her community or as a result of any interfaith marriage and its demise. As such the Tribunal finds that there is no real chance the applicant will be harmed by her family or a member of her ex-husbands family conducting an honour killing against the applicant. 

4. Therefore, while the Tribunal accepts that the applicant has suffered an unfortunate experience where her expectations of a successful marriage have not been realized, based on the country information, the applicants own evidence to the delegate and the report of Dr Ibrahim, it does not accept that there is a real chance she will be seriously harmed in the event she returns to India.[36]  In addition, the persecution claimed by the applicant and as described to the delegate does not constitute systematic[37] or discriminatory conduct[38] as required under s.91R(1) of the Act.

Applicants Mental Health

[36] S.91R(1)(b) of the Migration Act

[37] s.91R(1)(b)

[38] s.91R(1)(c) of the Act

1. The applicant claims that she is suffering for mental health issues including depression and post-traumatic stress syndrome. While not specifically claimed in her application, it may tolerably and clearly be claimed on the material before the Tribunal that if she is returned to India there is a real chance that she will be seriously harmed by reason of her medical condition.

2. The applicant claims that she was admitted to hospital and discharged from the [Hospital] after a suicide attempt [in] November 2009. This is evident from the Hospital Discharge Summary Sheet[39] which describes her as having been treated for [specific injuries]. The Discharge sheet notes that she needs to follow up with her general practitioner after her return to Australia.

   [39]  [Discharge] Summary Sheet dated [in] November 2009.

3. The medical reports by [Mr C] dated [in] August 2011[40] recommends that the applicant return to India for a period of 2 months to recover from her depression at that time. [Mr C’s]  report dated [in] April 2012[41] notes that the applicant had recovered from her depressive illness and that she was no longer on medication.

   [40] [File number]

   [41] [File number]

4. In a statement to the Australia Federal Police (‘AFP’) dated [in] October 2012[42] the applicant described an incident at work in which she was assaulted by a customer assault. A letter dated [in] November 2012 by [Ms C] of [Organisation 1] confirmed that the applicant has been referred to counseling after an incident at her work [in] October 2012 and that she presented on that day in a state of extreme anxiety and stress. The Tribunal accepts and finds that the applicant suffered an attack at work as described by the applicant in her statement to the AFP.

   [42] [File number]

1. The [Mr A] report[43] concluded that as a result of the attack at work the applicant satisfied the diagnosis of post-traumatic stress disorder. The medical report by [Mr D] dated [in] November 2014[44] also confirmed that the applicant was suffering for post-traumatic stress disorder and that she would not be able to return to work a for a period of 12 months. Finally, the [Mr B] Report, the reports by [Mr E][45]  and the medical report by [Mr F] dated [in] November 2013[46] provided by the applicant confirm that the applicant was suffering depression and post-traumatic stress disorder. Based on the medical reports provided by the applicant the Tribunal accepts and finds that that applicant suffers from depression and post-traumatic stress disorder. However, the Tribunal does not accept that there is a real chance the applicant will suffer serious harm in the event she returns to India by reason of her mental condition. The medical reports provided do not specifically say that the applicant is unable to return to India. In fact the report of [Mr C] dated [in] August 2011[47] recommended that the applicant return to India for a period of 2 months to help her recover for her depression. [Mr C] report dated [in] April 2012 stated that upon her return to Australia from India she had recovered from her depressive illness.[48] The Tribunal notes that treatment for post-traumatic stress disorder is available in India.[49] It also notes that support in recovering from post-traumatic stress disorder not only includes medical assistance but also help from family and friends who will listen and offer comfort  and support from one’s faith and/or community[50]. Given that the applicant’s family is based in India it appears to be an appropriate place for the applicant to receive the necessary support to aid her recovery for her mental health issues. 

   [43] [File number]

   [44] Medial report by [Mr D] dated [in] November 2014 [File number]

   [45] Patient summary reports AAT File No1603428 f149-144; medical report dated [in] October 2018, AAT File No1603428 f174

   [46] AAT File No1603428 f160

   [47] [File number]

   [48] [Mr C]’s report dated [in] April 2012

   [49] Post-Traumatic Stress Disorder (PTSD) Treatment Doctors in India

   [50] Post-Traumatic Stress Disorder (PTSD) Treatment Doctors in India

2. The country information reports that India has recently passed the Mental Health Care Act 2016 which provides for state health care facilities and protects the rights of persons with mental illnesses in India.[51] By replacing the older Act, it is said that this bill this bill empowers the individual and compels the state to have a mental health programme.[52] The Act declares that it is said that every person shall have a right to access mental health care and treatment from mental health services run or funded by the appropriate Government.[53]  That is, those living with a mental illness in India now have a right to good quality, affordable health care.[54] Health care worker are available in both [City 1] and [City 3], cities close to the applicant’s village.[55] It is reasonable that the applicant would travel to such cities close to her village to receive medical treatment. As such it appears there is no reasonable reason why the applicant would not be able to access the appropriate level of mental health services in India. 

   [51] The News Minute. ‘India has a new mental healthcare law, and here's all you need to know about it’ Monalisa Das Tuesday, March 28, 2017;    Op Cit per Health Minister JP Nadda said in Lok Sabha.

   [53] Ibid

   [54] Ibid

   [55] Traumatic Stress Disorder (PTSD) Treatment Doctors in India

While the applicant accepts that the applicant is a member of a particular social group, namely those individual suffering from a mental illness, after having considered the applicants medial reports together with the country information, the Tribunal finds that she is able to return to India and obtain the necessary treatment in India for her mental health condition. Accordingly the Tribunal finds that the there is no real chance the applicant will suffer serious harm in the event of her mental illness in the event that she is returned to India. 

Applicant’s complementary protection claim

1. The Tribunal has also considered whether there are any substantial reasons for it to believe that the applicant, as a necessary and foreseeable consequence of her being removed from Australia to her country of reference, faces a real risk of significant harm.

The Applicant’s Husband.

1. In relation to the fear the applicant claims from her ex-husband as detailed above the Tribunal finds that there is no real risk the applicant will be significantly harmed as claimed. While the Tribunal is prepared to accept that the applicant’s husband assaulted her as claimed, the incident appears to have been a one off event rather than a course of conduct by which she feared being significantly harmed. The applicant’s statement in her protection visa application which stated that she had decided to return to India and to make contact with her husband indicates that she did not fear any harm from her husband. [56]

   [56] ibid

2. The Tribunal does not accept the applicant’s evidence that upon her return to India in 2014 her husband asked to meet her and then threatened her in the company of friends carrying weapons. As referred to above, the applicant’s account of the events in India in 2014 are contrary to her evidence that her husband had left their marriage soon after arriving in Australia. In circumstances where her ex-husband had displayed a desire not to continue their relationship, the Tribunal does not accept that upon her return to India in 2014 her ex-husband called her to asked how she could have left him, arrange to meet to her and then threaten her as claimed. As such, the Tribunal finds that there is no real risk of the applicant being significantly harmed by her ex-husband upon her return to India.

3. The applicant claimed that she did not want to take legal action against her ex-husband as he is a rich man and that his family can manipulate the case by giving bribes to the police. However, as noted above, the applicant claimed in her interview with the delegate that she had already initiated court divorce proceedings.[57] By doing so it appears that she has not feared any harm for her ex-husband. Accordingly, the Tribunal finds that there is no real risk the applicant will suffer any significant harm by initiating proceedings against her ex-husband.  

The Applicant’s Family

[57] Delegate’s decision dated 23 February 2016 p.5; [File number].

1. The applicant claims that most of her relatives are now aware that her marriage had failed and that she and her husband are now separated.  She states that her father does not want to have any relationship with her because she has given the family a bad name. In addition she says that her relatives have also threatened her as she has given the whole family a bad name. The applicant claims that her father does not want to have a relationship with her and that her relatives have threatened her due to the fact that she has given the family a bad name. The applicant did not provide any details of who of her relatives had threatened her or the circumstances of such threats.

2. However, despite claiming that in 2011 her father declared that he no longer wanted a relationship with her, the applicant’s evidence to the delegate was that when she returned to India in 2014 and stayed with her parents. The [Mr B] Report notes that the applicant has come from a close family in which her parents were very supportive.[58] As a result, the Tribunal does not accept that the applicant fears any harm from her father or other relatives in the event that she returns to India. As such there is no real risk of the applicant being significantly harmed by her father or other family members upon her return to India.

Honour Killing.

[58] Mecial Report [Mr B] dated [in] October 2015, AAT file No 1603428 f156

1. Finally, as referred to above, while the applicant made no specific claim, on the material before the Tribunal it may tolerably and credibly be claimed that the applicant fears being the subject of an honour killing by either her family or her ex-husbands family upon her return to India. For the reasons expressed above the Tribunal finds that the applicant will not be harmed by an honour killing being carried out by her family or a member of her ex-husbands family. Accordingly, the Tribunal finds that there is no real risk the applicant will be significantly harmed as a result of an honour killing if returned to India.

Applicants Mental Health

1. The applicant claims that she is suffering for mental health issues including depression and post-traumatic stress syndrome. While not specifically claimed in her application, it may tolerably and clearly be claimed on the material before the Tribunal that if she is returned to India there is a real chance that she will be seriously harmed by reason of her medical condition. For the reason expressed above the Tribunal finds that the applicant will not suffer significant harm by reason of her mental health if returned to India. 

2. Therefore, based on the reasons expressed above the Tribunal does not accept that the applicant has a subjective fear of being harmed by her ex-husband, her father, members of her family and other members of her community. In addition the for the reason expressed above the Tribunal does not accept that there is a real risk the applicant will be harmed by reason of her mental health that includes severe physical violence and ill-treatment that amounts to significant harm as outlined in s.36(2A). 

3. Therefore, having considered the applicants evidence and taking into the relevant country information the Tribunal finds that, if removed from Australia to her country of reference, there is no real risk she will suffer significant harm. Accordingly, the Tribunal finds that there is no real risk that the applicant will suffer significant harm in India and as such he does not satisfy s.36(2)(aa) of the Act.

4. At no stage did the applicant advance any other reason, such as her race, nationality or religion, in her written or oral claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.

5. Having considered his claim and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are 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 she will suffer significant harm, including that she will be arbitrarily deprived of her life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s36(2)(aa).

CONCLUSION

1. 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 s.36(2)(a).

2. 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).

3. 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

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell

Member