1603871 (Refugee)

[2019] AATA 4370

1603871 (Refugee) [2019] AATA 4370 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603871

COUNTRY OF REFERENCE:                  India

MEMBER:James Silva

DATE:3 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 April 2019 at 1:40pm

CATCHWORDS
REFUGEE – protection visa – India – inter-faith inter-caste marriage – victim of assault – opposition by family – relationship not genuine – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 424AA, 438
Migration Regulations (Cth), Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

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. The applicant is a man [age] from India, who claims to be a national of that country.

2. The applicant arrived in Australia [in] November 2007 as the holder of a student visa, as the dependant of his former wife. He first lodged an application for a protection visa on 10 May 2011, but the Department found this application to be invalid. He lodged the current application for a protection visa (class XA) on 19 February 2015. On 11 March 2016, the delegate of the Minister for Home Affairs (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on 1 April 2019.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed. In brief, the applicant claims to fear persecution or significant harm at the hands of his family, who opposed his relationship in India with a lower caste woman, and the couple’s secretive marriage. The Tribunal does not accept that the applicant was in a genuine relationship with this woman, and concludes that it was a sham marriage to secure his entry into Australia. It finds that his family have no intention to harm him. The applicant expressed some personal and practical concerns about returning to India after more than ten years in Australia, but the Tribunal is not satisfied that these give rise to any protection obligations in respect of him.

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant claims that members of his family, in particular a [relative] who is a member of the Sikh Shiromani Akali Dal party and a local political figure, rejected his relationship with a young woman from a lower caste (who is also a Hindu). He claims that his family verbally abused and threatened him, and his [relative] was behind an assault of him and his (then) girlfriend. Under increasing pressure, the couple decided to marry and come to Australia on the girlfriend’s student visa. The family found out about the marriage. The abuse and threats intensified, and his immediate family disowned him. He fears that his family and his community (the village residents or the upper caste Jat community) will inflict physical harm on or kill him if he returns. The police are uninterested in such matters, and corrupt. The danger exists throughout India, as village residents and his [relative]’s political connections may locate him.

   Background

8. The applicant is a [age] year old man from [a village], in Punjab, India. He described this as a village of some [number] households, mostly farmers and also some government employees (such as police and military). It is close to [Town 1], and some [number]km from Patiala.

9. The applicant wrote that his languages are Punjabi and English, and told the Tribunal that he also speaks some Hindi. He did not give details of his ethnicity or religion on his application form, but stated that he is a member of the Jat community. He confirmed at hearing that he is a Sikh.

10. The applicant attended high school up to [year]. He told the Tribunal that after completing Year [number], he helped his father with some farming, but was unemployed and usually not doing much.

11. The applicant married in India [in] 2007, and divorced in Australia [in] 2010. (The relationship forms a centrepiece of his protection claims, and the Tribunal examines it in detail below.)

12. The applicant’s parents, and older [sibling] and a younger [sibling] remain in India. His father runs a farm and has two small shops. His [older sibling] is married to a [occupation]. His younger [sibling] had difficulties at school, and stopped school to help their father. The applicant claimed to have had no contact with his family for some years, and to have no updates on their current circumstances (see detailed discussion of this below).

13. The applicant has worked in Australia in various jobs, including [list of occupations]. He lives in a share house with a married couple.  

    Evidence

14. The evidence before the Tribunal includes the following relevant material (from the Department and the Tribunal files): -

    §  The applicant’s protection visa application form, lodged on 19 February 2015.

    §  The applicant’s protection claims are set out in a brief statement submitted on 20 February 2015.

    §  Identity and personal documents: (a) partial photocopy of his Indian passport (biodata and back pages only); (b) a copy of his Punjab drivers licence, issued in May 2007; (c) a copy of a divorce order dated [2010], relating to the applicant’s marriage to Ms [A][1]; and (d) statements of attainment and a certificate for Ms [A].

    §  The applicant attended a protection visa interview (‘Department interview’) on 4 March 2016, a recording of which is on the Department file.

    §  The delegate’s protection visa decision record (‘delegate’s decision record’) of 11 March 2016.

    §  Review application form, lodged on 22 March 2016.

    [1] The court order incorrectly gives the date of marriage as [2001], when in fact it took place in 2007.

15. The Tribunal also has before it Department file [number], which contains the applicant’s first (attempted) protection visa application.

16. The applicant appeared before the Tribunal on a hearing held on 1 April 2019, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. A Tribunal officer attended the hearing as an observer, with the applicant’s prior consent.

17. The applicant is not represented in this matter.

    Non-disclosure certificates under s.438 of the Act

18. The Department issued a certificate under s.438 of the Act, certifying that the information in certain folios of the Department file [number] was subject to paragraph 438(1)(a), as disclosure of it would be contrary to the public interest. The certificate identified the public interest as being that the folios ‘contain information relating to an internal working document and business affairs’. In light of the Federal Court decision in MZAFZ v MIBP[2], which considered a s.438 certificate with similar wording[3], the Tribunal finds that the certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.

    [2] MZAFZ v MIBP [2016] FCA 1081, Federal Court of Australia, Beach J, VID 461 of 2016

    [3] In that matter, the phrase was ‘would be contrary to the public interest because it contains internal working documents’.

19. The certificate identifies a number of folios subject to s.438(1)(a): (a) folio 61, which is an identification test checklist; (b) folio 73, which states that certain pages have been removed to a different Department file; (c) folio 74, which records the applicant’s comments about his former migration agent; and folios 83-85, which relate to an earlier assessment relating to non-disclosure. The Tribunal assesses that none of these folios contains any information relevant to this decision.

20. The Tribunal alerted the applicant to the existence of these certificates; its view that they were invalid; and its view that the information was in any event not relevant to the review. He noted this without comment.

    Receiving country

21. The applicant claims that he is a national of India. He has provided his Indian passport, and given oral evidence that is consistent with his claim. There is nothing to suggest that he has any other or additional nationality. The Tribunal is satisfied that he is an Indian national. India is therefore the receiving country for the purpose of assessing his protection claims.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

22. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

23. The applicant in this matter is unrepresented. Also, he has been in Australia since late 2007. The Tribunal formed the impression that the applicant is anxious about returning to India after such a long time, and that this was reflected in his slightly nervous presentation. It also appreciates, and takes into account, that the passage of time makes it more difficult for the applicant to accurately recall the details of past events, and for the Tribunal to assess these.

24. Overall, the Tribunal has serious concerns about the applicant’s credibility. His claims consisted in large part of broad assertions, with minimal supporting evidence or context, and some inconsistencies. As noted in the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, ‘an applicant may not be able be support his statements by documentary or other proof […]’, and indeed there is no absolute requirement for this. In the present case, however, the applicant’s claims rely on a relationship that was allegedly conducted in India and Australia, over a total of at least two years. The lack of supporting evidence for the relationship is striking. Of more concern to the Tribunal, however, is the applicant’s apparent lack of genuine engagement at hearing when it comes to exploring what evidence there might be to demonstrate the claimed relationship.

25. Similarly, the applicant claimed that to fear persecution or significant harm from his family, and in particular a [relative] who is a local Akali Dal figure. The Tribunal’s efforts to obtain updated information about his family and conditions in his local area yielded very little. The applicant claimed that he is completely ostracised from his family; to fear making enquiries through any third parties; and to have no other contacts (for instance, because most or all of his classmates have migrated abroad). Again, the Tribunal formed the impression that the applicant was not genuinely interested in avenues of enquiry, either to bring him some peace of mind (if he genuinely fears prospective harm) or to assist in the review process.

26. At the Department interview and again at the Tribunal hearing, the applicant said that during his last conversation with his mother, she told him not to contact them again. Upset, he took some sleeping pills and tried to commit suicide. At hearing, the applicant said that he swallowed some non-prescription pills he had bought at a chemist. However, fearing that he might cause damage to his body, he vomited these up. He told the Department delegate at interview that he suffered a headache and sore eyes after this incident, but did not require medical treatment.

27. At hearing, the applicant said that there have been no further incidents of self-harm. However, he is always thinking of this, and once he had been planning to jump off a train. He is upset at the prospect of being required to return to India. The Tribunal alerted the applicant that medical and emergency help is available if he has such thoughts.

28. Apart from these statements, there is no medical or other evidence to indicate that the applicant has any mental health problem that impairs his ability to present his claims. The applicant expressed his disappointment that his original plan – to secure Australian permanent residency through (his former wife’s) study – had not worked out, and seemed worried at the prospect of returning to India without qualifications. However, the Tribunal observed nothing to suggest that he suffers any mental health problem.     

29. The Tribunal’s detailed assessment follows.

    Relationship with [Ms A]

30. The applicant’s protection claims arise from his (claimed) relationship with a local girl, whom he accompanied to Australia.

    In India

31. The applicant wrote on his application form that he had a ‘strong relationship with a girl from [his] village’. He told the Tribunal that [Ms A] lived in [a suburb in] Patiala, but he believes she was from Bathinda District, or perhaps [Town 2], in Patiala District.  

    §   He said he met her through a [relative] who, like [Ms A], was attending an English language course in Patiala. [Ms A] was preparing to do an English language test, so that she could study [field]. The applicant used to sometimes go with his [relative] to the college, and meet students there. At the time, the applicant was unemployed, occasionally helping his father with the farm. He had been thinking of perhaps joining the police, but there were medical problems.

    §   He said that [Ms A] had been living with her [relative] in Patiala for a long time. The applicant knew that she has a [child]. However, he applicant never met her, or any other members of [Ms A]’s family. He initially said that he knows nothing about the family but, in response to further questions, said that she has a number of [siblings]; her father drives a truck; and one [sibling] drives a car.

    §   The applicant said that he and [Ms A] used to go to the cinema together, or a park, or sometimes a temple.

    §   Asked whether he had any photographs or other mementos from their relationship in India, the applicant replied that both he and [Ms A] used to have photographs of each other and together on their mobile telephones, but his family took his mobile telephone. He did not have letters or other correspondence.

    §   In relation to their ‘secret’ wedding [in] 2007, the applicant said that they submitted all the photographs to the Department (implicitly in support of the Student visa application). In response to the Tribunal’s surprise that they had no other material (such as photographs for themselves), he replied that they did not have much evidence, and in any event, [Ms A] took it all when the couple divorced in 2010.   

32. The Tribunal asked the applicant about [Ms A]’s background. The applicant said that she was from the [named caste][4].

    [4] The name of this caste is variously given as [deleted], due to transliteration: People of India: Uttar Pradesh (Volume XLII) edited by A Hasan & J C Das

    In Australia

33. The applicant estimated that he and [Ms A] lived together for about a year or two after they arrived in Australia, before separating and finally divorcing in 2010.

34. As for evidence of the relationship from this period, the applicant said that they were in a two-bedroom share house. It was rented by someone else, and there were already seven people living there when the applicant and [Ms A] moved in as a couple. The applicant said that he and [Ms A] used to have a joint bank account, and she may have had college or other correspondence addressed to that place. As for other evidence – such as photographs at events or with mutual friends – the applicant said briefly that some friends might have images of them at New Year’s Eve. He added that this had been some twelve years ago, and people might have changed telephones. The applicant did not seem engaged in turning his mind to whether such material exists, and the Tribunal did not press this point.

35. The applicant said that he and [Ms A] separated some six or eight months prior to their divorce. At that time, he had been renting a house in his own name in [suburb], and was sharing it with some other men. [Ms A] did not like to stay there, in part because she felt uncomfortable with the other occupants, and in part she wanted to live closer to a train station so she could get to her lectures more easily. She preferred to stay with some girlfriends. The Tribunal noted these living arrangements, as they could indicate that he was not in a relationship with [Ms A]. The applicant commented that it had been hard to find accommodation, and he had consulted [Ms A] in the process.  

36. Assessment: The applicant’s demonstrated knowledge of [Ms A] and the evidence to support the relationship are scant. Also of concern is the applicant’s apparent lack of effort to or interest in seeking evidence of the relationship. The Tribunal is not prepared to accept at face value that the applicant and [Ms A] were in a genuine relationship in India or Australia. Rather, it is concerned that the applicant entered into a sham marriage to secure his entry into Australia and eventual permanent residence. The Tribunal returns to this issue, and makes findings, below.

    Family’s opposition to the relationship

37. The applicant claimed that his parents and extended family found out about the relationship, and signalled their disapproval of it, due to [Ms A]’s background.

38. By way of background, general country information indicates that the overwhelming majority of marriages in India are arranged. While India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal, in practice, such marriages may attract disapproval, social pressure and in some cases violence. The treatment of people in such marriages varies widely, often dependent on factors such as individual families and their backgrounds (eg. location, education, urban/rural setting and their faith or caste).[5]

    [5] The Tribunal draws on the Department of Foreign Affairs and Trade (DFAT) Country Information Report – India, 17 October 2018, paragraphs 3.42-3.46, which it considers to be a fair and up-to-date summary of the broad situation in India.

    Discovery of the relationship

39. At hearing, the Tribunal asked the applicant about his family’s discovery of the relationship.

    §   He said that his [relative Mr B] once saw him and [Ms A] travelling by motorcycle to Patiala. The applicant spotted [Mr B] and tried to do a U-turn. However, [Mr B] caught up and confronted the applicant about the girl who was with him. The applicant explained that he was just giving a lift to a classmate, but [Mr B] disbelieved him and said that he had seen them some two or three times.

    §   As for other ways in which his family or [Mr B] might have found out about the relationship, the applicant said that another [relative], [Mr C], might have told them. The applicant said that he used to walk to college with [Mr C], and the two of them travelled to Australia together after [Mr C] passed his English tests. The applicant said that he has had no contact with [Mr C] since about 2011.

    §   The Tribunal put to the applicant, pursuant to the procedure in s.424AA,[6] that according to the statement accompanying the application form he lodged in May 2011, he initially introduced [Ms A] to his [relative Mr D], who also studied in Patiala; [Mr D] sometimes accompanied the couple on outings; and he ([Mr D]) later announced the relationship at a gathering of the applicant’s and his [relative]’s families. The families reacted in shock, and [Mr B] ([Mr D]’s brother) reacted furiously at the news. The applicant’s failure to mention this gathering at hearing raises questions about the veracity of this claim.

    -   In his comments/response to the information, the applicant said that he told his story to a solicitor, who prepared the statement and read it back to him, but he (the applicant) cannot remember what it contained. He later said that he gave the solicitor only a brief account, and he believes that the solicitor added in more information to pad it out. 

    [6] The Tribunal put the information to the applicant, reading the relevant part of the statement accompanying his 2011 (attempted) protection visa application; explaining its relevance and consequences; and inviting him to comment or respond orally or in writing, and to request additional time to do so if he wished. He opted to comment/respond orally, on the spot.

1. The discovery of the relationship by the applicant’s family is a significant claim, as it is the trigger for their adverse interest in him. The applicant’s evidence about how his family, and in particular, [Mr B] found out about it, was uncertain and inconsistent. The Tribunal recognises that the passage of time can affect a person’s recall, but it is not satisfied that this adequately explains the applicant’s confusion. As for the claim that the solicitor took his first statement and read it back to him, but must have later added in extra details, the Tribunal found this to be a somewhat improvised response, which leaves numerous questions unanswered.[7] 

   [7] For instance, it suggests that the applicant did not in fact check the statement attached to that application form; and it raises questions about why a solicitor would go to the trouble of inventing such incidents.

2. In sum, the Tribunal has significant doubts about the truthfulness of the applicant’s account of how his family discovered his relationship. (For findings, see below).

   Family’s initial reaction to the news

3. The applicant wrote in his current application that his entire family was strongly opposed to the affair, and told him to stop it immediately. At hearing, the applicant initially said that their opposition to it was religion, as his family is Sikh and [Ms A] is Hindu. In further comments, he acknowledged that [Ms A] has a Sikh name, but thought that her family had converted to Hinduism generations earlier. The main point of contention is that she is from [a lower caste]. He said that his family learned about her background after [Mr B] had confronted them on the road, and asked for her personal details.

4. The applicant claimed that the initial reaction from his family and his [relative]’s family (especially [Mr B]) was verbal abuse and warnings. Essentially, they told the applicant that such an affair would damage the reputation of the family, and that they (and the whole Jat community) would break their relationship with him if he continued. (The Tribunal notes the confusion around how the applicant’s family found out and the precise sequence of events. For instance, at hearing, when asked for the background to the group assault in October 2006, the applicant said that [Mr B] once beat him up. In light of his later statements, it appears that the applicant was in fact referring to the group assault, and not any earlier event.)   

   Assault of the applicant and [Ms A]

5. The applicant claimed that he continued to see [Ms A] despite the threats and warnings from his family.

6. One day, the couple were travelling by motorcycle when a group of young men stopped them and started to assault the applicant. There were four or five in the group, and the applicant recognised one of them as a friend of [Mr B]’s. Two of the men told the applicant to get off his motorcycle, and started abusing him. Two others joined them, and started to beat him, kicking and striking him with rods. This continued for a couple of minutes, until [Ms A] tried to intervene. They then turned on her and beat her, too. The applicant estimated that the assault lasted about five minutes. According to his written statement, they warned that they would kill both the applicant and [Ms A] if they saw them together again.

7. The applicant said that they both suffered bruises and swelling after the attack. According to his written statement, he was also bleeding from the mouth. The applicant said that he did not seek a medical check-up or treatment, for fear that the matter would be referred to the police. This, he commented, would only make matters worse (implicitly, by provoking [Mr B] and his agents into further action).

8. The applicant confirmed that he did not go the police to lodge any complaint about the attack. The Tribunal drew attention to the written statement of claims reads, in part: ‘When we complained to the police, about the incident, they advised us not to indulge in such affairs. We could not depend on them to protect us.’ The applicant said that he was unsure whether he made an error in his statement, or whether it was the interpreter. He said that he once discussed with someone whether the police would protect him and [Ms A] if they decided to get married. That person had said that the police would accept a complaint (implicitly, against [Mr B] or other family members), but only upon payment of money. They would not, in fact, provide any protection. 

9. Against a background of already serious credibility concerns, the Tribunal finds several aspects of this claim problematic. First, it is somewhat surprising that an attack by four or five armed men, over a period of some five minutes (and even allowing for the difficulty in estimating the duration of these kinds of incidents), did not require the applicant or [Ms A] to at least get some medical checks.  This suggests that the applicant’s account is exaggerated, or that the incident did not in fact occur. Second, the applicant’s inconsistent evidence as to whether or not he tried to report the matter to the police, and their reaction, further undermine his claim.

   [Mr B]: the applicant’s main threat

10. The applicant claimed that his [relative Mr B] is the person who was implicated in the assault, and whom he fears most. In response to the Tribunal’s questions, he said that [Mr B] is a member of the Akali Dal (Shiromani Akali Dal), and a kind of councillor (or youth councillor) for [Town 1] and the surrounding area.

11. The Tribunal asked for further details, and any independent reporting about this person. The applicant said that there have been many court cases against [Mr B], and the courts have ordered that his passport be confiscated, so that he cannot flee the country. He has spent time in prison. Asked whether he has any reports about [Mr B] – for instance, about his political activities and/or any criminal convictions – the applicant said that [Mr B]’s family lives next door to his, so he has witnessed his criminal conduct at first hand.

12. The Tribunal signalled that the applicant’s lack of enquiry about [Mr B]’s circumstances could give rise to doubts as to whether the applicant really feared him. The applicant replied that he avoids asking anyone, in case it exacerbates his problems on return to India (for instance, by alerting [Mr B] to any pending return). As for [Mr B]’s presence or influence beyond [Town 1], and whether the applicant had any supporting evidence of this, the applicant said vaguely that he ([Mr B]) moves around, and that he also has relatives who visit other places who can keep [Mr B] informed.

    Departure from India

13. The applicant wrote in his statement of claims: ‘I encouraged my parents to send me overseas for studies’. They were unaware of [Ms A]’s plan to accompany him to Australia.

14. Around the same time, he and [Ms A] decided to marry in secret. As noted above, the applicant said that they had submitted documents relating to the marriage to the Department, with the student visa application. He offered no further evidence, suggesting that he did not even keep any photographs or other items as keepsakes.

15. At hearing, the applicant confirmed that [Ms A] (whom he had met at the English language institute that his [relative] had been attending) was the primary holder of the Australian student visa, and he accompanied her as her dependant. He said that his father gave him the money for the student visa application, and he (the applicant) engaged an agent to make the preparations. He lied to his family that he was planning to sit the English test[8] (and, by implication, that he was making preparations to obtain a student visa in his own right). As for how he persuaded his father to pay a substantial fee without seeing evidence of his prospective study, the applicant replied that his father is illiterate and trusted him. In relation to [Ms A]’s application and the payment of the fees, the applicant said that the agent might have prepared the application in a way that made it appear that her family was funding her studies, but in reality, she opened an account and put his father’s money into it, without her family’s knowledge.

    [8] IELTS, International English Language Testing System. At the outset of the hearing, the applicant said that the delegate made a mistake in saying that he sat and failed the IELTS test; in fact, he never sat for it at all.

16. The Tribunal asked about the documents that the couple had submitted to support their visa application, and whether these showed that they co-habited. The applicant said that, to his knowledge, [Ms A] had given his residential address in her student visa application. He believed that the solicitor who assisted them with the marriage certificate and other documents had recorded them as having the same residential address. The applicant stated that, at the time, none of this was correct. They were unable to live together or declare their relationship, for fear of persecution or significant harm.

17. The applicant said that, on the day of their travel, his and [Ms A]’s families took them to the airport terminal separately; the couple met up after check-in, inside the airport.

18. In effect, the applicant invites the Tribunal to accept that he and [Ms A] were in a genuine relationship, but were unable to declare their marriage or co-habit because of the risks to their lives, and as a consequence, arranged false documents. In doing so, he disputes the delegate’s conclusion that there were in a genuine relationship and living together, with their families’ knowledge and approval. However, the Tribunal has an overarching concern, in light of the detailed exchange at hearing, that there was in fact no genuine relationship at all, and that the applicant arranged false documentation in order to secure entry into Australia.

19. The Tribunal is not satisfied, in light of the above concerns, that the applicant departed India in response to any recent assault or ongoing threats to him (or to his claimed ex-wife [Ms A]).   

    Developments since arrival in Australia

20. The applicant claimed that his family (including [Mr B]) came to know about his secret marriage to [Ms A] in about 2009. At hearing, he said that he and [Ms A] stayed with his [relative Mr C], when they first arrived in Australia. He suspects that [Mr C], who is from the same village, might have told his family about the marriage. In 2011, [Mr C] denied having told family members, but the applicant does not know anyone else in Australia who has his family’s contact details.

21. The Tribunal asked the applicant whether [Mr C] would be available to confirm these details, or whether he had corroborative evidence from [Ms A] or anyone else. He replied briefly that he has had no contact with [Mr C] since 2011, and he does not know [Ms A]’s whereabouts.

22. The applicant claimed that, after learning about his marriage, in 2009, his parents were furious. His father was upset, used abusive language and told the applicant that he is now dead in his eyes. They have not spoken since. He contacted his mother a few times after that, when his father was not home. They spoke most recently in 2013 or 2014. She indicated her displeasure with his actions, and that he should no longer call her, as his father knew about their contacts.

23. He also claimed to have no ongoing contact with his siblings. Similarly, he claimed to have no contacts with members of his extended family (paternal or maternal). As a result, the applicant said that he has no up-to-date information about his family. The applicant said that his [sibling]’s friend sent a message on [social media] some time ago, mistakenly congratulating him on the birth of a daughter, when in fact it was a message intended for the [sibling]. The Tribunal explored whether he had any information from other local residents, such as school friends. The applicant replied briefly that all or most of them have moved abroad. He initially kept in contact with some of them via [social media], but has now not used social media for some six or seven years.

24. As the Tribunal signalled at hearing, it is difficult to believe that the applicant’s immediate family has ostracised him; that he feels that he has no means to find out about their circumstances; and that he is genuinely uninterested in or unable to find out about his extended family (including the [relative] who reportedly has the power to persecute or significantly harm him). Furthermore, the Tribunal finds unconvincing and does not accept that the applicant now has ‘no one’ left in India.

25. The Tribunal noted that the applicant had submitted a divorce certificate from September 2010, and wondered whether he thought the divorce might provide a means for him and his family to reconcile any differences they had about the relationship. The applicant said he doubted this. He said that when they first beat him up – presumably a reference to the occasion in October 2006 when [Mr B]’s friends attacked him, he promised never to see [Ms A] again. But he lied to them, and they have since discovered that. The applicant said that his father told him unambiguously that he will not enter the family home again, at least while the father is still alive. His parents have said that they will never forgive him. Again, the Tribunal sensed no real interest on the applicant’s part in exploring whether – following his divorce, with the passage of time, or in any other circumstances – his family might be willing to forgive him. Rather, the applicant’s insistence that the family’s earlier rejection of him was final reinforces the Tribunal’s concern that he was tailoring his evidence to bolster his protection claims.

    The applicant’s Indian passport

26. The applicant presented his Indian passport at hearing; it expired in [2017]. He said that he has not applied for a replacement. The applicant said that he has not applied for a new passport, because he has ‘no other certificate’. The Tribunal formed the impression that he has not initiated any enquiries about renewing his Indian passport, and is unenthusiastic about doing so.

27. The applicant raised some concerns about his documentation if he returns to India, which the Tribunal examines below (in assessing whether he has a well-founded fear of persecution for a s.5J(1) reason).        

    Summary of findings

28. The Tribunal has considered the claims and evidence, individually and cumulatively. The concerns set out above,[9] taken as a whole, lead the Tribunal to conclude that the applicant’s protection claims lack credibility. It makes the following findings of fact:

    §  The applicant was not in a genuine relationship with [Ms A], a young woman from a different caste (and perhaps Hindu).

    §  As a result, the Tribunal also does not accept the associated claims of past harm, including (a) that the couple conducted their relationship in secret; (b) that family members, including a politically influential [relative], discovered the relationship and subjected the applicant (and his girlfriend) to verbal abuse, warnings and/or threats; (c) that a group of men confronted the applicant (and his then girlfriend), assaulted them, and threatened to kill them if they continued the relationship; (d) that the applicant suffered physical or other injuries due to such as an assault, but declined to seek medical treatment due to a fear of the matter being referred to the police; or (e) that the applicant was afraid to go the police, fearing that they would fail to protect him and/or that his [relative] or others would exact revenge on him for seeking protection. 

    §  The Tribunal accepts that the applicant married [Ms A]; and that the couple presented several fraudulent documents to the Australian authorities, to show that they shared a residential address. In light of its finding that the applicant and [Ms A] were not in a genuine relationship, the Tribunal finds that the applicant did not channel his father’s money to [Ms A] secretly or take other measures to hide their relationship or departure plans from their families (and avoid persecution or significant harm). The Tribunal finds that the applicant married [Ms A], forwarded funds from her and ordered fraudulent documents showing their co-habitation so that he could secure entry into Australia as [Ms A]’s partner, and eventual permanent residency.

    §  The Tribunal does not accept that the applicant and [Ms A] departed India fearing persecution or significant harm at the hands of his family, for reasons related to the (now-rejected) relationship. It finds that the applicant departed India for unrelated reasons (and it notes, in this context, that he alluded at hearing to the social expectations on young people to move abroad, as many of his friends have).

    §  The Tribunal does not accept that the applicant’s family have since learned about the marriage and reacted furiously, for instance, with his father disowning and making other implied threats; with his mother having to cease contacts several years later, to avoid antagonising the father; with the applicant receiving threats or warnings from other family members; and with the applicant effectively being ostracised by family members and the broader (village and Jat) communities.

    §  The Tribunal does not accept that the applicant has ceased all contact with his parents, family and others in India, for any reasons linked with his protection claims. It accepts that it may have declined, however, due to the passage of time or other factors unrelated to his protection claims.

    §  The Tribunal finds that the applicant’s subsequent divorce was for reasons unrelated to his protection claims. 

    §  The Tribunal accepts, on the basis that it is possible, that the applicant is apprehensive about returning to India. But, just as it does not accept he departed India to flee imminent persecution or significant harm, due to his family’s adverse reaction to his inter-caste relationship, it also does not accept that he genuinely fears returning to India for any related reasons.

    [9] See in particular paragraphs 24-28, 36, 40-41, 48, 51, 57-58, and 63-64.

29. Given the extent of its concerns and adverse credibility findings, the Tribunal does not accept any associated claims regarding the applicant’s past experiences in India.

    ASSESSMENT: REFUGEE CRITERION

30. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors – in particular, country information, as well as the applicant’s future conduct – there is a real chance of him experiencing serious harm amounting to persecution for any reason set out in s.5J(1), in the reasonably foreseeable future, if he returns to India.

31. The applicant was reluctant to engage in discussion on his likely conduct if he returns to India. He said that he cannot safely go back there; that he does not have a single person he could stay with, even for a night; and he alluded to difficulties with documents and administration. On the limited available evidence, the Tribunal finds it most likely that the applicant would return to his home village (it does not accept that his immediate or extended family are intent on killing or harming him), and seeking to re-establish himself and find work there.

32. The applicant claimed that he has no one in India, not a single person who could help him on his return to that country. The Tribunal has already assessed, and rejected, his claim that his immediate family, and his extended paternal and maternal families have ostracised him. It also finds unreliable, and does not accept, the broader claim that the applicant has lost contact with all former neighbours, friends and others in India. As the Tribunal does not accept that the applicant will return to India without any family, social or other personal contacts, it is unnecessary for it to factor this into the assessment below. 

33. The Tribunal has found above that the applicant was not in a genuine relationship with a young woman from a lower caste, or who was a Hindu; that he did not experience past harm at the hands of family members opposed to the relationship; that he did not flee persecution for that or any other reason. Similarly, the Tribunal does not accept any of the claims regarding events following the applicant’s arrival in Australia. The Tribunal therefore concludes that the applicant does not face a real chance of serious harm amounting to persecution arising from the (now-rejected) relationship with [Ms A], or from his marriage and divorce from her (in 2007 and 2010). It is unnecessary for the Tribunal to further determine whether such harm, as claimed, would fall within the scope of s.5J(1).

1. The applicant claimed that, even if he were to obtain a new Indian passport, he faces formidable challenges on his return. As his family will seek to persecute or significantly harm him in his village, he would be unable to access his birth certificate and other documents, which he needs in order to get an aadhaar card, his unique identification number. Without an aadhaar card, it is impossible to do basic tasks such as obtain a SIM card and open a bank account. Having found that the applicant’s family or other persons do not have an adverse interest in the applicant, and no plans to persecute him, the Tribunal does not accept that he would be unable to obtain documents from his home. It follows that there is no real chance that the applicant would be in India as a person without an aadhaar card or other document; or that he would face the adverse practical consequences of this. The Tribunal finds that there is no real chance of the applicant being subject to serious harm for an associated reason.

2. The applicant expressed concerns that India has changed a lot over the past ten or more years, and indicated that he feels he will be at a loss as to what to do on his return. The Tribunal understands his reluctance to return there and, conversely, his strong preference to remain in Australia with permission to work and/or the prospect of permanent residence. The Tribunal is not satisfied that the general living conditions in India or the applicant’s home area – he intimated that conservative social practices, and economic and social conditions are of concern to him – involve persecution. The feared harm or detriment does not involve serious harm to the person: s.5J(4)(b); it does not involve systematic and discriminatory conduct: s.5J(4)(c); and the essential and significant reason does not lie in any of the five grounds set out in s.5J(1). 

3. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to India.

4. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   ASSESSMENT: COMPLEMENTARY PROTECTION

5. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.

6. The Tribunal takes into account the above findings of fact; its view of the applicant’s future conduct; and country information about general conditions in India. It is mindful of the applicant’s long stay in Australia and that he may need to adjust back to life in Punjab. Nonetheless, it concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life, or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to India.    

7. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm: s.36(2)(aa).

   CONCLUSION

8. 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).

9. 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).

10. 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

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

    James Silva
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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 themselves 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.