1608747 (Refugee)

1608747 (Refugee) [2019] AATA 5834 (20 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608747
COUNTRY OF REFERENCE:                  India
MEMBER:Luke Hardy
DATE:20 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 June 2019 at 1:25pm
CATCHWORDS
REFUGEE – protection visa – India – religion – inter-faith marriage with Australian citizen – separated but not divorced – threats by family – particular social group – status of divorced women in India – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559 at 596
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52 at [69]
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a Hindu citizen of India from [Village], near Rajkot city in Gujarat state.
She entered Australia on a student visa [in] September 2008 and was issued with sequential student visas for several years. She married in Sydney [in] April 2012. She and her Australian husband lodged a partner visa application on 6 June 2012 but the application was refused on 30 July 2013 due to the relationship having ended. The refusal was affirmed on review. [The applicant] then sought Ministerial intervention on 28 November 2014 to prevent being removed to India. Then on 27 March 2015 she lodged a protection visa application. The delegate refused to grant the protection visa on 27 May 2016. [The applicant] then sought review by the Tribunal.
For the purposes of the review, [the applicant] submitted to the Tribunal a copy of the delegate’s decision, which contains a summary of the oral evidence she gave to the delegate as well discussion of the issues the delegate considered to be significant in this case.
[The applicant] appeared before the Tribunal on 18 June 2019 to give oral evidence and present arguments. She was accompanied by her adviser, a registered migration agent. The hearing was facilitated by an interpreter in the Gujarati-English and Hindi-English media, although for the most part, [the applicant] was comfortable and adept in giving her evidence directly in English.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
In her protection visa application form, [the applicant] claimed to have completed thirteen years of school education followed by three years studies towards a Bachelor [degree] obtained in 2002. After being sent to Australia to continue her education at [age], she completed a [qualification] in [course] in Australia followed by two [diplomas].
In a statement attached to her original protection visa application, [the applicant] claimed she was raised in a strict Hindu family that cannot tolerate what she has done in Australia by marrying an Australian who is a Christian. She claims the relationship was genuine but ended in separation leading to the refusal of her partner visa application. She claimed that this fact became known (somehow, though she did not specify how) to her family. She claimed that even when the relationship ended she was afraid that her family would harm her due to her having married a Christian. She claimed she called her family to explain her situation but found her parents refusing to listen to her in spite of her relationship with her Christian husband having ended; that is to say that it did not matter to her parents that the relationship had ended because she never should have gone into it in the first place. She said she then contacted her [brother] hoping he would be more tolerant, only to have her life threatened by him for damaging her family’s reputation. She said that all this happened because she never had her family’s permission to marry, let alone marry a Christian. She claimed that Hindus must have their parents’ permission to marry. She claimed that strict Hindu families usually reserve the right or the power to choose spouses for their children. She said her family and relatives will kill her if she returns to India because she married a non-Hindu. She said the state will not protect her due to the lack of rights for women in India. She claimed she cannot relocate within India because of the lack of security for women. She said that another reason why she cannot relocate was that her status as a divorced woman would cause her additional degradation. She said she would face a risk of sexual assault with no male in India to protect her. In support of her claims, [the applicant]’s then-advisor submitted some independent material reporting “honour killings” in India in cases where people married against the wishes of their families, along with a report of the rape of a woman in Rajkot, a city near [Village], and some links to other reports about Hindu marriage traditions. She also submitted letters from health professionals who had heard her talk about the breakdown of her marriage and her claimed fears about returning to India, including a fear of suffering harm due to her fragile mental state and a fear of being too old to compete in India’s job market.
[The applicant] made several claims to the delegate at her protection visa interview that appeared directly to contradict the claims she made in her original protection visa application. Having described her parents specifically as strict Hindus and generally non-pragmatic, she went on to say that her father was opposed to Western values. However, she also told the delegate that her father took out a substantial loan to pay for her travel to and study Australia.
The delegate [the applicant]’s drew attention to a claim in her protection visa application form about having been sent to a Catholic school in India for six years of primary education. The delegate put to her that this suggested her parents were much more pragmatic and worldly than she had initially suggested in her original protection visa application. In response, [the applicant] said her parents had sent her to that school to learn English, it being an English-medium learning environment. The delegate located the school’s website which stated that the school is “primarily meant to provide … sound education based on religious and moral values, but is open to all irrespective of religion, caste or community, paying due respect to … religious feelings and freedom of conscience.”
In addition, whereas [the applicant] had initially claimed that her family (somehow) found out about her marriage to a Christian and that she first spoke to them about it after the relationship had ended, she provided an account that was different from this in many respects. She now said that she had told her parents about her impending marriage before it took place and that her parents, though not warm to the idea of her marrying a Christian, accepted her decision as they assumed it would help her to remain in Australia. In saying this she seemed to indicate that the intention of funding her study in Australia had been to help her migrate here in due course. [The applicant] then told the delegate that, later, when she told her parents that her relationship had ended her parents took the news badly as they felt it would reflect badly on the family. She apparently did go on to repeat the initial claim about her parents not accepting of her marriage to a Christian even after it had ended because he was a Christian. She did not evidently reconcile these claims at the protection visa interview.
[The applicant] told the delegate that she had not yet become formally divorced from her husband because she could not afford to do so, although they were living apart.
In evidence to me, [the applicant] gave somewhat different evidence regarding her not yet having divorced her estranged husband: she said she did not know where he was located and had not taken any steps to ascertain her rights, options or potential liabilities in the circumstances.
I put to [the applicant] that her original written and subsequent oral claims about her family’s attitude, one, to her marriage and, two, to her separation appeared to be contradictory. I offered her an opportunity to resolve and reconcile the apparent discrepancies in these claims. In response, she said that both versions of events were true and the same. I put to her that I was unable at this stage to see how they could be consistent: in one version, it did not matter to her parents that her relationship had ended because in their view she never should have entered into it in the first place; whereas in the other, her parents accepted her decision to marry her Christian husband and, later, were more concerned about her being a divorcee. In response, [the applicant] provided a third version of events that did not appear to resolve or reconcile the other two versions.
[The applicant] told me that when she spoke to her parents before her impending marriage, she spoke to them in a joking manner. She said she did this because she was looking for hints as to how her parents would react to the reality of her marrying a non-Hindu. She then said to me that when she did this her parents did not say anything. This claim about her parents saying nothing is different from saying her parents opposed the relationship, as claimed in the original protection visa application, and it is also different from saying her parents accommodated it, as said to the delegate.
If [the applicant] was trying to glean how her parents would react to the notion of her marrying a Christian then, logically, she would have needed to sound to them as though she was being truthful. Meanwhile, since she was indeed about to marry a Christian and, in fact, proceeded to do so, it appears she would have been trying to sound plausible to her parents about a factual situation. In this light, it is hard to conceive where the “joking” occurred, particularly since none of her evidence (about her parents not responding) suggests that her parents treated her announcement as a joke. Overall, [the applicant]’s suggestion to the effect that she joked to her parents about intending to marry a Christian did not help to resolve the discrepancies before me, especially since she said to the delegate that her parents did respond by ultimately accepting her decision to marry the man she married.
[The applicant] claimed to me that later, in a telephone conversation with her, her brother asked her if she was going to get married or not, whereupon, she claimed, she did not rely to him. She went on to say that after she married she did tell her brother what she had done but still did not tell her parents. She said that her brother then told her parents unbeknownst to her. This information is different from what [the applicant] provided about her brother in both previous versions. In particular, it differs somewhat from where she said in her original March 2015 statement that her relationship became known to her family, which suggested that she had no idea as to the direct source of the information they received. However, when I asked [the applicant] to tell me clearly how she found out that her parents knew about her marriage, she told me that they told her that her brother had told them. This would likely have been in 2012. It should therefore have been easy for her to claim in her March 2015 statement to the Department that her family found out from her that she had married the man she married.
I asked [the applicant] what happened after her parents told her they knew, and she said she confirmed to her parents that what her brother had told her about her marrying a Christian was true even though she had only been joking about it before. Again, this reference to her only having joked to her parents did not make any sense, as she had evidently told them what was plainly true and she had been trying to gain a response from them based on their understanding it to be true (which, to emphasise what has already been reiterated, it was).
I put to [the applicant] that she had never claimed in either of her previous statements that she had, from her point of view, joked to her parents about marrying a Christian. In reply, she said she did not say everything in those statements. I put to her that it still appeared to me that I had before me three different accounts as to what happened, each of them to some extent mutually exclusive with the other two. In reply, she said the earlier two statements lacked the details she had just provided. I considered this explanation but, on doing so, I found that the only significant new details were the seemingly illogical one about her “joking” and the claim about her parents giving her no response to her telling them of her marrying a Christian. In both instances these details did not contribute to the story, or resolve the previous two accounts, because they respectively confused and contradicted previously-provided details.
I essentially put to [the applicant] at the hearing that I might have difficulty accepting her profile of her immediate and extended family as strict Hindus who would kill her for having married the man she married. She said that her parents had told her she could not return to “our place”, meaning the house in which her family resides.
[The applicant]’s evidence suggests that her parents, in funding her travel to and study in Australia, even before the issue of her marriage ever became known to them, had hopes that she would be able to stay here. It appears that the skills she acquired, as described to the delegate, were not appropriate skills to her obtaining permanent residence in the long run. As noted, she said to the delegates that her parents were disappointed that her marriage did not last; in 2013, this would have been at a time when she was no longer a student. Consequently, her parents might consider her somewhat of a burden were she to return to reside with them. However, that is not necessarily the same as wanting, intending and being equipped to kill her in the event of her return.
I put to [the applicant] that in the event of her not wishing or preferring to reside with her family again, it seemed safe, reasonable and practicable for her to reside away from [Village], say, in one of India’s larger cities, such as New Delhi or Mumbai. In reply, she made a new claim, instead of saying what she had said before about the lack of rights for women and the possibility of unprotected women being raped, she said her family would be able to trace her anywhere in India through her uncle and then they or he would kill her for having married a Christian and also for being divorced. She said her uncle would be able to find her “anywhere”. I asked her how he would be able to do this and she said he had contacts. I asked to say what kind of contacts her uncle has and she said he has then through his job and business. I asked her to be specific, and she said “[industry]”. I put to her that it was hard to conceive this would be sufficient for her uncle to be able to trace her, unless, say, she sought work with [an industry] operation linked to him, and she then said he has other contacts, but did not provide any detail. On the evidence before me, considered cumulatively, I am not satisfied that [the applicant] would be unable to avoid being traced by her family irrespective of where she resides in India.
I provided [the applicant] with two independent articles discussing the conditions for divorced women in India.[1] I put to her that according to one of these sources reported that the population of divorced persons in her home state of Gujarat in 2011 was already over 1.9 million, half of these people logically being women. This figure wold logically include divorced women living in the city of Rajkot near [Village]. I put to [the applicant] that I had not been able to locate any information suggesting that divorced women in Gujarat face a real chance of serious or significant harm due to being “divorced women”. In reply, [the applicant] said that divorced women do not “come out” in the open. I asked how it could be possible that there are a million women in Gujarat, all divorced, who stay indoors, never going out. In reply, she said their families suppress them. I put to her that the information I was citing appeared in an article dedicated to the subject of divorced women in India[2] and that if all of them are cloistered, as she suggests, it seemed reasonable to expect that some mention of this fact would have been made. [The applicant] gave no cogent reply to this. I asked her if she could not reasonably relocate to Mumbai or New Delhi; relevant to this the article I handed her, cited above, says that Maharashtra state, the capital of which is Mumbai, was home, as at 2011, to almost 2.1 million divorcees, half of which number would logically be women; the divorced population in Uttar Pradesh, the state that abuts New Delhi was reportedly almost 1.1 million in 2011. In reply, [the applicant] said that everywhere is the same. As distinct from [the applicant]’s generalised indications of pessimism about the circumstances in larger Indian cities, the article I cited contained information about organisations and Internet applications assisting divorced women as a social class and as an openly self-declared “dating” market demographic. The article acknowledges that divorce itself can be a traumatic process, as it usually is for anyone anywhere, but does not suggest that this is exacerbated by external stigma to any significant degree, since more and more divorced women can now be put I touch with other to exchange social and emotional support. Addressing this, [the applicant] said the reality in India is different from what is reported. In support of this position about the situation having significantly improved for divorced women in India since she last lived in India, [the applicant] asked why girls as young as eight years old are being raped in India. On hearing her say this I asked [the applicant] if she was not digressing and she said that even adult women are scared to report rape and sexual assault to the police for fear of being stigmatised and harassed.
[1] “Happily divorced: Indian women are breaking the stigma around separation like never before,” The Economic Times, 27 January 2019, “100 Women: Overcoming the stigma of an Indian divorce,” BBC News, 5 March 2018,
[2] “Happily divorced: Indian women are breaking the stigma around separation like never before,” The Economic Times, 27 January 2019,

[The applicant]’s argument here seemed to be about single adult women living away from their families in India rather than about divorced women specifically, although it is reasonable to perceive divorced adult women as a potential subset of the other broader group. It still stood at this stage of the hearing that there was no evidence before me to support the general contention that divorced women in India face a real chance of being persecuted irrespective of their education, socio-economic standing, employment status where they live in India, be their domicile either urban or rural.
Around this stage of the hearing, I was reminded that [the applicant] claims fear of being persecuted, even in the event of relocation within India, due to her former marriage having been with a non-Hindu. Her adviser asked me to consider that in her case, she faces a real chance of being persecuted due to the cumulative factors of being a divorcee and a person who married outside her Hindu religion and traditions. Summing up her claims, as also described in a submission dated 11 June 2019, her adviser said that when people find out that her former husband was not a Hindu she might face a heightened risk of harassment and harm. I put to [the applicant] that she would be under no obligation to give out personal or private details about the person she married. On the evidence before me so far, I indicated that I was not yet satisfied that being discreet about such details would amount to self- repression of a right that is fundamental to [the applicant]’s identity or conscience.[3] In response, [the applicant]’s adviser said that if people asked her about her marriage in Australia she would feel a need to tell; however, ultimately, all this struck me as being based in bald speculation.
[3] See s.5J(3) of the Act (in the attachment below); see also Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia: High Court, 9 December 2003, >
[The applicant]’s adviser put to me that if she is denied a job, say due to having married outside of her religion and/or being a divorcee, or just because she is too old to compete in the job market, all of these possibilities involve discrimination causing a threat to subsistence such as can reasonably be regarded as persecution. The adviser appeared to be referring here to the terms of s.5J(5)(d) and (f) of the Act. However, considering [the applicant]’s various qualifications and work experience, as detailed in the discussion contained in the delegate’s decision record (as submitted by [the applicant] to the Tribunal for the purposes of this review), it struck me as being purely speculative that she would be unable to obtain long-tern gainful employment in India.
[The applicant]’s adviser asked for a day to allow her to submit around ten Internet links in support of her claims about female divorcees and women who married outside of their Hindu religion and related traditions facing a real chance of being persecuted in India.
I received the foreshadowed material by email on the same day as the hearing:
>
The same submission also contained a brief summary of ss.5J(1), (4) and (5) of the Act.
I note that five of the links submitted refer either to individual instances of rape (including two articles about the rape of the eight month-old baby) or to statistics of sexual assault in India, or to protests seeking better protection for women from sexual assault in India. One link refers to domestic violence. Another refers to inter-caste marriages being capable of attracting shame and harm including “honour killing”. Another link refers to crime statistics in Ahmedabad having risen in 2016, possibly suggesting that I considered this an example of what is happening in Indian cities like New Delhi and Mumbai generally. There is also one link describing the “honour killing” in 2016 of a woman by her brothers, avenging the shame of her inter-caste Hindu marriage, the murder having been witnessed by neighbours and the known or suspected killers at the time of reporting being sought by police. One of the links submitted appears to be an accidental duplication of another.
The advisor’s 11 June 2019 submission summarises [the applicant]’s claims (with footnote references edited by me for continuity with my own footnoting):
Religion
The applicant belongs to Hindu faith and had married to Christian partner; whereas, in India, the Hindu Marriage Act allows members of the Hindu, Buddhist, Jain, or Sikh religions to intermarry and prevents other faiths from this law.[4] According to Manusmriti, partners in an inter-gotra marriage should be shunned.
[4] Hindu Marriage Act, No. 25 of 1955, § 2(1) & (3), 20 India Code (1993), available on the Government of Punjab, Department of Revenue, Central Acts/Rules website, at applicant believes that her family and similarly her community will be of view that she would have been forced or voluntarily convert to Christianity and had thrown away her Hindu symbols and religion. Therefore, she would be harmed for her imputed religion (Christianity). [In] “Tortured for 22 days: Hindu woman married to Christian exposes Kerala 'anti-conversion clinic'” The News Minute[5] provided that:
[5] a Hindu woman, says she was forcefully confined in a ‘yoga centre’ in Ernakulam for 22 days, where the staff, paid by her family, had one agenda: To force her to abandon her husband, a Christian.
The 28-year-old says that the yoga centre is actually an anti-conversion clinic for women who married outside their faith or converted to Christianity or Islam to marry a man of their choice. She says that the staff at the centre subjected her to days of ‘counselling’, asking her to either abandon her husband, or convince him to embrace Hinduism.
[In “Why Interfaith Marriages in India Continue to Raise Eyebrows,”][6] Mariyam Raza Haider … wrote [on 7 January 2019]:
[6] Such disturbing trends have been augmented by episodes of violence against interfaith couples by self-appointed moral police. Cases of physical assaults and mob violence against such couples have become prominent in recent times. The occurrence of such episodes has made it more difficult to push the envelope of free choice and more progressive values within the Indian diaspora…
Membership of Particular Social Group
The applicant fears being harmed by the society due to her membership of particular social groups namely divorced woman, woman with lack of male protection. The applicant suggests that if she escaped the harm from her family, she would be a fragile target for rape and sexual insults in her country. She wishes to draw the Tribunal attention to the following country information:
• Has India reached a turning point in tackling rape?[7] [by] Justin Rowlatt, South Asia BBC correspondent;
[7]
• Rajkot woman alleges rape, kidnapping by three men,[8] by the Indian Express;
[8]
• Sexual Assault in India,[9] by several sources
[9]
There are many article and reports supporting the applicant with her fear being seriously harmed is she returned to her home country; whereas, she wishes to provide the following country information regarding women honour killing in India for the reason of marrying from different religion:
• Indian woman burnt alive by brothers in caste-related 'honour killing', police say, by ABC news[10]
• The couples on the run for love in India, by BBC[11][.]
The above report states that:
Most Indian families still prefer marriages arranged within their religion and caste. Marriages outside these rigid boundaries have often led to violent consequences, including "honour" killings.
The report provides that “the latest data available from the National Crime Records Bureau (NCRB) shows that 77 murder cases in 2016 were reported with "honour killing" as the motive.”
Such violence is highly under-reported, and these numbers do not accurately reflect social attitudes that may be growing more conservative.
[10]
[11]
The advisor argued that the delegate put too much weight on [the applicant] having been sent to a Catholic school:
It is submitted that [the delegate’s] finding has nothing to do with the applicant’s claims; if the fact [was] as stated by the delegate, the applicant suggests that her family would have been converted to Christianity.
The submission argues that [the applicant]’s family had no problems with Christians in general but would be opposed to her marrying a Christian.
The submission argued that it was an irrelevant consideration on the delegate’s part to give weight to the minimum marriage age of 18 allowed for women under the Hindu Marriage Act in India.
I note that [the applicant] also claims that she will suffer from inadequate social support in India for her psychological issues involving stress and anxiety compared to the attention she has received in Australia. Letters discussing her anxiety and depression issues appear at ff.64 to 68 of her Immigration Department file.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[12] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[13]
[12] MIMA v Rajalingam (1999) 93 FCR 220.
[13] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[14] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[15]
[14] 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
[15] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the applicant] has suffered psychologically over the last few years. However, on the evidence before me, I am not satisfied that [the applicant] has been prevented from giving meaningful evidence in this case due to her diagnosed anxiety and depression issues, or due to any other circumstance beyond her control.
I accept that [the applicant] is a Hindu from [Village] in Gujarat state. I accept that she married a Christian, or at least nominally Christian, Australian citizen in a civil ceremony in 2011 and that the relationship ended in 2013. I accept that [the applicant] is not yet formally divorced from her estranged husband. I accept that the relationship and its collapse have caused [the applicant] much personal grief and stress.
As discussed above, I have difficulty with other substantive claims in this case.
I have considered the evidence of [the applicant]’s parents having sent her to a Catholic school that taught its curriculum in the English medium, to ensure that she would learn English. I accept that it is possible to allow one’s Hindu daughter to be educated amongst Christians, whilst not wishing for her to become a Christian and whilst not wishing for her to marry one; however, having considered all of the evidence before me, I find that [the applicant]’s parents displayed pragmatism, in sending her to that school, that does not sit with the claim, a seminal one in this case, to the effect that they were strict Hindus. I have also considered the evidence to the effect that [the applicant]’s parents supported her through thirteen years of schooling overall, followed by three years of degree studies that took her to [age] years, well above the age of 18 at which they could have married her off to someone, according to the strict Hindu family codes described in her claims. [The applicant]’s parents did not evidently organise to have her married off to their satisfaction during the six-year period 2002 to 2008 between her graduation and her travel to Australia for further vocational study; instead, they funded her travel to and study in Australia for at least part of the two years she studied here. There is no suggestion in [the applicant]’s claims that, during the six years she remained in India after graduating, there was any tension in her family over whether she was marrying according to Hindu tradition or pursuing her own vocation. Meanwhile, [the applicant]’s claim about her father being opposed to Western values appears negated by his evident investment in her education in Australia.
Considered cumulatively, I am satisfied that the facts discussed above negate the claim about [the applicant]’s parents being, or having ever been, strict or conservative Hindus, such as would engage in or encourage “honour killing” or any other form of persecution. Ultimately, on the cumulative evidence of modern, pragmatic, secular and worldly behaviour on the part of her parents, I do not accept that [the applicant]’s family is strictly or conservatively Hindu, as claimed.
Accumulating with this finding are my concerns as to the quality of [the applicant]’s evidence regarding when and how she informed her parents of her relationship with her now-estranged Australian Christian husband. As discussed, her evidence about her family becoming angered on learning of her marriage to a non-Hindu is highly inconsistent and was not satisfactorily resolved. Overall, I do not accept that hr marriage caused anger in her family, let alone that it led to family members threatening to kill her. On the evidence before me, I do not accept that [the applicant]’s claims about her uncle are factual: they struck me at the hearing as being improvised; she made no mention of the possibility of being traced by relatives in her evidence to the Department.
On the evidence before me, I do not accept the suggestion that people in India will, for one, necessarily find out that [the applicant] married a Christian in Australia and then, two, necessarily assume that [the applicant] converted to Christianity in order to do so, or for any other reason, and then, three, persecute her for having done so. I consider all of these claims to be baldly speculative.
I am not satisfied that the reports about instances of rape in India do anything to strengthen [the applicant]’s case. The individual incidents in the reports all have their own individual circumstances, most markedly in the horrific case of the eight month-old girl. None of the statistics for rape in India lead me to be satisfied that [the applicant] faces a real chance of being raped in that country, let alone for a potentially relevant reason.
I have considered the independent evidence [the applicant] has submitted regarding “honour killing” in India but, again, although I accept that the practice does occur from time to time in different places, usually rural, I find that the information provided relies on individual circumstances and attitudes that I find do not exist in this case: for a start, I do not accept that [the applicant]’s immediate family was angered by her marriage, let alone to the point of threatening her.
I am prepared to accept [the applicant]’s parents were disappointed on finding out that her marriage had ended. I find on the evidence before me, including what she said to the delegate, that this was largely due to the effect of the break-up on her prospects of being able to gain permanent residency in Australia. I can also accept that there is some stigma about being divorced that can cause women to feel humiliated in India. However, I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in India either separately or cumulatively due to her profile as a divorced woman.
Interestingly, the “honour killing” report submitted by [the applicant] related to a woman who eloped with a fellow Hindu, though of a different caste, her family reportedly having seen this as being in breach of strict Hindu codes. The killing took place in a village. It took place eight years after the victim and her husband moved away from the village and only occurred when she returned. The police arrested alleged perpetrators including one brother. The same report says that “honour killings” are “carried out by close relatives or village elders to protect what is seen as the family's reputation and pride in a hereditary-based caste system.” I find that I am not satisfied that [the applicant]’s family is a strict or conservative Hindu family, and therefore I am not satisfied that her family, immediate or extended, adheres to the strict mores discussed in the above-cited report.
In any event, if [the applicant] prefers not to live in her home village in particular or in a village generally, I find that it would be reasonable, practicable and safe for her to relocate to and reside and seek work in a city such as New Delhi or Mumbai. She is evidently fluent in Hindi, the national language, as well as Gujarati. She completed primary school in India and also certificate/diploma studies in Australia in the English medium. She has lived and worked in a foreign city, Sydney, for over a decade. There are evidently online and other support networks for divorced women residing in both Indian cities, Mumbai in particular.[16]
[16] “Happily divorced: Indian women are breaking the stigma around separation like never before,” The Economic Times, 27 January 2019, type="1">
I am not satisfied that [the applicant]’s circumstances as a divorcee formerly married to a Christian would prevent her from being able to find work or to subsist in an Indian city like New Delhi or Mumbai.[17] I am not satisfied that details of who [the applicant] formerly married need ever be discussed with others in India, let alone in an urban environment such as in Mumbai, or that her declining to discuss her past relationship would involve her being required to take unreasonable steps such as protection visa applicants are not required to take according to s.5J(3) of the Act.
[17] Ibid.
I accept that [the applicant]’s age, gender and long time away from India may make it harder for her to obtain work than it is for younger people with continuous work experience in that country. On the other hand, she evidently has some impressive qualifications and has had years of experience in Australia in [Occupation]. On the evidence before me, I consider it mere speculation that [the applicant] will not be able to find employment and long-term accommodation in India.
Whereas she has drawn attention to women enjoying less rights than men in Indian and to practices in India that discriminate against women, I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in India in the reasonably foreseeable future for the separate or cumulative reason of being a woman.
I am not satisfied that [the applicant] faces a real chance of being persecuted in India in the reasonably foreseeable future for the separate or cumulative reason of her diagnosed anxiety and depression issues. I am not satisfied that she wold be denied social and psychological support for any potentially relevant reason.
Having considered all of the evidence in this matter overall, I am not satisfied that [the applicant] faces a real chance of being persecuted in India in the reasonably foreseeable future either separately or cumulatively for any reason cited in s.5J(1)(a) of the Act.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are 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.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of India, I find that India is the “receiving country” in this case.
I find that the harm [the applicant] identifies in her claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
The applicant’s claims to complementary protection are essentially the same as her refugee status claims. Since her refugee claims have failed on the basis of inconsistency and lack of credibility, and on the failure to meet the “real chance” test, they can no more succeed as complementary protection claims.
In the alternative, they fail due to [the applicant]’s ability safely, practicably and reasonably to relocate. Either way, [the applicant]’s refugee claims can no more succeed as complementary protection claims.
I am not satisfied on the evidence before me that [the applicant] would be denied social or psychological support in India, let alone intentionally.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, she does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

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

[2019] AATA 5834

20 June 2019

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