1611213 (Refugee)

[2019] AATA 5825

1611213 (Refugee) [2019] AATA 5825 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611213

COUNTRY OF REFERENCE:                   India

MEMBER:Anne Grant

DATE:12 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 12 June 2019 at 4:20pm

CATCHWORDS
REFUGEE – protection visa – India – dowry dispute with former wife’s family – former wife’s family’s harassment of applicant’s family and threats against applicant – legal procedings – country information – decision under review affirmed

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

CASES

EZC18 v MHA [2019] FCCA 464

MIAC v SZQRB [2013]FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa on 30 June 2015. The delegate refused to grant the visa, finding, in summary, that she was not satisfied that the applicant’s fear of harm was for any of the reasons in section 5J(1)(a) of the Act.  The delegate also found that there was not a real risk that the applicant would suffer significant harm if he were to return to India. 

3. A hearing was conducted on 2 May 2019 and the applicant attended and gave evidence, in English.  At the conclusion of the hearing, the applicant requested and was granted time to provide additional information about legal proceedings commenced against him and his parents soon after the end of his marriage by his former wife’s family and finalised in around 2011.   On 29 May 2019, he provided a document said to be a Copy of an FIR dated [October] 2008, (in English only) against the applicant and other people, including his parents.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. Section 5H of the Act defines a refugee, in the case of a person who has a nationality and is outside the country of their nationality, as a person who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country. 

7. Under s.5J of the Act 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.

8. Section5J(2)-(5) of the Act further defines the meaning to be attributed to a well-founded fear of persecution in the following manner:

   (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.   

9. 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’).

10. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).  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.

11. Section 36(2B) of the Act sets out 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. 

    CLAIMS AND EVIDENCE

12. The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm.

    Applicant’s oral and written evidence

13. I have before me the Department’s file which includes a copy of the applicant’s protection visa application, various news or blog articles filed in support of his claims by the applicant and the delegate’s reasons for decision.  The applicant has also provided a copy of the delegate’s decision to the Tribunal with his application for review.

14. In his written claims, the applicant lists his nationality as Indian and his faith as Hindu. He formerly lived in Amritsar, Punjab.

15. The applicant’s claims (from his written application and his oral evidence) in summary are as follows:

    ·    In his written claims, the applicant submitted that he came to Australia to study in 2005.  However, he claims that if he returns, he will be prosecuted for crimes he has not committed, because the family of his previous wife has lodged a complaint against him with the police.  The complaint claims that he has taken dowry even though he did not and that he has harassed and tortured her.  He has not sought help as he has not returned to India since the complaint and the police would find him anywhere to prosecute him for crimes which he did not commit. 

    ·    He has provided, with his written claims, several general news articles about men being charged over dowry complaints, and the impact such claims have on men, particularly when the claims are said to be false.  At hearing, the applicant said these articles were put forward to demonstrate that false dowry claims are made against men in India and that such claims can destroy a man’s life. 

    ·    He returned to India from Australia in 2007 to marry.  The woman was from a local family well known to his family, and was an arranged marriage. She then returned to Australia with him but very quickly, it became clear that she ‘wanted more’ in terms of better accommodation and a higher standard of living. The applicant said his family is relatively middle class as is hers, and they are from the same caste.  Her family knew he was a student in Australia but when his wife came here, she seemed to expect that he was a businessman.  She refused to look for work and demanded more and complained a lot and they began to fight.  She returned to India and they separated within about six months of her coming here.  When she returned, she told her family he had harmed and abused her. 

    ·    Her family responded very badly to the separation.  They have threatened to lodge a case against the applicant and in his absence did lodge a dowry harassment case against his family in 2008.   They spent years defending it until it was quashed in the Supreme Court in Delhi in either 2010 or 2011.    His wife’s family have not forgotten him and will lodge a dowry harassment case against him as soon as he sets foot in the country.  He claims that they may even get him killed.

    ·    Her family is well connected and know prominent local politicians.  They will find him throughout the country and as soon as they know he is back, they will start a false case against him which will ruin him.   The applicant says that people in India do not give up their grudges. Even though a lot of years have gone past, they are still vengeful and will lodge a false case against him because they want to harm him. They harass his parents, who are old, by making false and irritating and frivolous complaints to the local authorities about them, such as about bad parking on the street.  His parents have not lodged any FIR’s about this harassment because they want nothing to do with them.

    ·    The applicant claims that there was no dowry – her family just gave his family a gift of [amount], which was used to buy furniture.  The applicant asserted that 1 lakh is only 1-2,000 rupees, despite my referring to and understanding that 1 Lakh was 100,000 rupees.    

    ·     His [sibling] got married and for some time, his in-laws annoyed [her/him] by asking where the applicant was, even though [s/he] moved to Bangalore, far from them.   She and [her/his] [spouse] work in IT.  They haven’t contacted [her/him] for about one year.

    ·    The applicant claims that the family of his ex-wife know the local police and politicians in Amritsar and he would not be safe from them ‘all over India’. The local police and authorities will not protect him.

    ·    The applicant said during the hearing that he does not work in Australia and his parents and friends are supporting him.  However, during the hearing when asked why his parents wouldn’t continue to support him if he moved elsewhere within India, he gave different evidence, saying that his parents are not supporting him in Australia, he is supported by friends.

    ·    The applicant agreed, as noted by the delegate, that he did not lodge his claim for protection until he had exhausted all other options for a work or skilled visa had concluded because, as he said, he was hopeful of showing that he was qualified for that visa. 

    ·    The applicant said if he returns to India, he is in his [age], is not well-educated and would find it difficult to find work and re-establish himself.  He has a [Qualification in Subject] and has worked in [a work sector] when he had work rights in Australia.

16. At the conclusion of the hearing, the applicant requested time to provide evidence about the proceedings pursued and concluded against his parents.  I allowed him one month to obtain that evidence, submit it and a translated copy to the Tribunal. 

17. On 29 May 2019 the applicant provided, as noted above, a document purporting to be a FIR dated [October] 2008 filed at [a police station in] Amritsar.  This lengthy and detailed document alleges (in summary) that the applicant and his family abused and stole from the applicant’s former wife and also that they made multiple dowry demands and threats to her and her family.  The applicant had undertaken to provide evidence about the successful finalisation of a case against his parents, which he said had ended in around 2011 with the claims being dismissed.  This FIR is not evidence about the conclusion of the proceedings but outlines claims about a dispute in 2008 related to the breakdown of the marriage between the applicant and his former wife. 

    Country information

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to have regard to relevant country information assessments prepared by the Department of Foreign affairs and Trade (DFAT) expressly for protection status determination purposes.  I have had regard to the DFAT Country Information Report India (17 October 2018), discussed with the applicant at hearing. 

19. The DFAT report includes the following relevant information pertinent to the issues before me:   

    3.33 Traditional social practices and the low status of women in many parts of India result in domestic and gender-based violence. Child marriage and sati (widowed women committing suicide on their husband’s funeral pyre) are illegal, but both practices continue in rural areas. The tradition of the bride’s family paying a dowry leads to female infanticide, sex-selective abortions and dowry deaths (women murdered or driven to suicide in the attempt to extort a higher dowry). Over 90 per cent of domestic violence incidents are not reported to any formal agency such as police, social workers or lawyers.

    Police

    5.3 Each state and union territory maintains a separate police force. NCRB data records a total of 1.7 million officers of all ranks across India in 2013. The central government recruits and manages the Indian Police Service, which posts officers to senior positions within state police forces. The central government oversees national armed police organisations: the Assam Rifles, the Border Security Force, the Central Industrial Security Force, the Central Reserve Police Force, the Indo-Tibetan Border Police and the National Security Guards. It is also responsible for the Bureau of Police Research and Development, the Central Bureau of Investigation (corruption investigation agency that reports directly to the prime minister), the Directorate of Coordination of Police Wireless, the Intelligence Bureau, the National Crime Records Bureau, the National Institute of Criminology and Forensic Science, and the National Police Academy.

    5.4 The processes of recruitment, transfer, promotion and dismissal of police officers are opaque. Police resources, training and staffing are limited in some areas. There are media and civil society allegations that senior officials or political figures shape the conduct of investigations. Some victims of crime allege that people other than political figures or senior officials sometimes also attempt to interfere with police investigations.

    5.5 Registration, investigation and prosecution of cases may be affected by bias in relation to the class, caste, ethnicity and religion of a victim or offender. Ethnic and religious minorities complain that police lack sensitivity, suspicions about which sometimes lead to communal violence. Local sources report that police,
    along with other agencies including the courts, public servants, judiciary and prosecutors, have an inherent bias when dealing with Dalit victims of crime in particular.

    Judiciary

    5.6 The Indian judiciary is independent of the executive branch. Some international rights organisations claim that corruption is prevalent, particularly at lower levels of the judiciary. Large backlogs of cases means that most citizens have great difficulty securing justice through the courts. In 2017, the government created a search and evaluation committee to support the appointment of judges.

    5.7 The high courts in 2017 had over four million cases pending, with 25 million cases awaiting trial in subordinate courts. The Supreme Court has over 60,000 cases pending. Backlogs lead to lengthy pre-trial detention periods for a large number of suspects, in some cases significantly longer than any prison term their alleged offence would attract. Over two thirds of detainees in the criminal justice system are awaiting trial, and prisons are overcrowded.

    5.8 Section 39A of the Constitution mandates that equal justice and free legal aid are rights of every Indian citizen. In practice, defendants are assigned state-appointed lawyers. The quality and consistency of representation by state lawyers varies. The standard of defence from a state-appointed lawyer would not compare to a highly-paid private lawyer.

    5.9 In April 2017, the Ministry of Law and Justice launched an alternative to improve legal assistance for disadvantaged citizens. This included expanding pro-bono legal services to improve access to higher quality legal advice. The ministry partnered with the Ministry of Electronics and Information Technology to launch a pilot of ‘tele-law’ services, which provide legal services through common service centres in remote rural areas.

    Detention and Prison

    5.10 Under the Constitution, the states and territories administer prisons, which are governed by the federal Prisons Act (1894). The US State Department reports that prison conditions in India do not meet international standards due to a lack of resources, overcrowding and poor sanitary conditions, which, in some cases, are life threatening. Minorities, including Muslims and members of Scheduled Castes and Scheduled Tribes, tend to be over-represented among convicted prisoners.

    5.11 The NHRC has powers to visit any institution ‘under the control of the government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates and make recommendations’.

1. The news articles provided by the applicant have also been considered.  They are as follows:

   ·“Man Kills himself over dowry complaint” The Times of India 12 May 2013.  In this report, the Police are stated to have found that the case ‘could not attract a dowry harassment case’ and asked the couple to settle the issue in court and tried to mediate a settlement.

   ·“Unfair Dowry Law in India leads to Suicides, and a Movie.”  News Blaze report  undated but contains ‘data’ for the period 2005 to 2010.  The applicant has highlighted a sentence claiming that “in the seven years from 2004 to 2010, close to 500,000 innocent men (husbands, their brothers, fathers) and 200,000 innocent women (mothers and sisters of husbands) have been arrested without trial or investigation, based on a mere complaint.”

   ·“Stop legal terrorism” 16 February 2008 Indian Express News   In this article the applicant has highlighted a sentence claiming that ‘In the year 2005 alone, nearly twice as many married men (52,483), compared to married women (28,186) committed suicide, unable to withstand verbal, emotional, economic and physical abuse and legal harassment.”

   ·“On Women’s Day, Read the Suicide note of a Man.” India Opines 2014 Blog.

   ·“Suicide by men due to false dowry claims” undated article from approximately 2009 (printed in 2015 and states ‘posted 6 years ago’.)

   ·“Dowry Deaths of Men far Exceed those of Women” Pak Reveal article 30 December 2014.  The applicant has highlighted a sentence which states that “More than three times as many men commit suicide due to dowry harassment.”  This article makes a claim that 98% of dowry harassment allegations are false and also that 75% of rape allegations are false but does not provide any support for those statements.

   ·“Harassed Husbands are a sad and silent reality!”  Article in the Times of India 13 September 2014.  The applicant has highlighted a statement that “more and more married men are committing suicide.”

   ·“Will the silent tears of harassed men find recourse?”  Article in Daijiworld.com dated 22 August 2013.    This article includes a sentence highlighted by the applicant claiming that only women are allowed to file a complaint against men ‘which is unreasonable considering that 42% of the victims who commit suicides in matrimonial disputes are men, according to source from ministry of Home Affairs.’

   ·“Was D K Ravi a victim of section 489 A:  Men’s right group asks.”  One India article 21 March 2015

   ·“I am a woman, but here is why I chose to fight for men” The Newsminute article 21 March 2015. 

2. Generally, these reports suggest that false dowry harassment claims are made against men by ‘disgruntled’ women in India and that men’s lives are ruined as a result.  However I consider that caution must be exercised in relying on them as verifying any tangible number of such incidents.  Without exception the information and statistics in the reports are unverified; and even at times contradict each other.  These reports are not proof of the claims included within.    I have been unable to locate reliable country information which provides verified statistics about false dowry claims, or indeed that a high number of claims lodged are in fact false.  Nonetheless, I accept that there are some reports suggesting that the dowry harassment law can be abused by filing false charges, and that this has come to the attention of the Supreme court:  one report I located, as discussed with the applicant, suggests that the Supreme Court has indicated that persons charged with dowry crime should not be arrested pending trial due to the risk to innocent defendants and taking into account the length of time between charging and the hearing.[1] This report includes the following information:

   “NEW DELHI: Expressing concern over disgruntled wives misusing the anti-dowry law against their husbands and in-laws, the Supreme Court on Thursday directed that no arrest or coercive action should be taken on such complaints without ascertaining the veracity of allegations.

   Acknowledging a growing trend among women involved in marital discord to abuse Section 498A of IPC to rope in their husbands’ relatives, - including parents, minor children, siblings and grandparents – in criminal cases, a bench of Justices AK Goel and UU Lalit said it was high time such frivolous cases which violated the human rights of the innocent was checked…

   The bench ruled that all such complaints received by the police or the magistrate must be referred to the family welfare committee and no action should be taken against the husband and the in-laws till the committee gave its report after interacting with the parties.

   “Report of such committee be given to the authority by whom the complaint is referred to, latest within one month from the date of receipt of complaint,” the court said.  The court also said bail applications of husbands and in-laws should be decided expeditiously by trial courts, preferably the same day it is filed.

   [1] “Dowry:  no arrest in dowry cases till charges are verified, says Supreme Court” Times of India report 27 July 2017 available here: 

   CONSIDERATION AND FINDINGS

3. On the basis of the applicant’s passport presented at hearing and his evidence about his nationality, I am satisfied that the applicant is a national of India.  Accordingly, India is the country of reference with respect to the refugee criteria and the receiving country in respect to complementary protection criteria.

   Does the applicant have a well-founded fear of persecution should he return to India? 

4. I have considered the applicant’s claims and evidence, both written and given in person at hearing.  I have given regard to the FIR document and carefully considered the information it contains.

5. The applicant claims he will be harassed, threatened, falsely charged with a crime and possibly killed by his former wife’s family due to the breakdown of their marriage and financial matters related to wedding property. 

6. I accept that the applicant married in 2007 and separated in approximately 2008.  I also accept as plausible the applicant’s evidence that his former in-laws have expended considerable energy and resources in pursuing legal action based on the claims in the FIR he has provided against his parents.  The FIR claims that the applicant and his family had extracted and demanded a dowry illegally, abused his former wife and stolen property belonging to her.  Although the applicant has failed to provide any corroboration of his evidence that such case was quashed in the Supreme Court in 2010 or 2011, I have given him the benefit of the doubt on this point and have proceeded on that basis.  I accept the applicant’s evidence that his would-be persecutors no longer contact his parents but pursue low level harassment of them (such as making complaints to local authorities about parking) and that they have never contacted him in Australia.  I consider that some ongoing hostility of his ex-wife’s family towards the applicant is plausible, based on the information and evidence before me.  

7. I have some concerns about his evidence that either his in-laws or someone related to them had contacted his [sibling], now living in Bangalore, to enquire about his whereabouts as recently as a year ago.   I consider it implausible that they would have [her/his] number or that [s/he] would even take a phone call from them, given the extent of the inter-familial dispute the applicant refers to, culminating in legal proceedings. However, for the purposes of my review of this application, I am prepared to proceed on the basis that his ex-wife’s family have made enquiries about his whereabouts around one year ago and maintains some interest in the applicant.  I accept that it may plausibly still be their desire to renew or start legal proceedings against him when he returns to India.   The evidence is and I accept that they merely called his [sibling] to demand to know his whereabouts, and not that any type of direct pressure, physical assault or harassment has been applied to his [sibling]. 

8. The evidence before me is that the applicant’s family have never been physically assaulted despite being present in India and the subject of equivalent claims of abuse, dowry abuse and theft by the applicant’s ex-wife and her family.  After considering his evidence as a whole, I consider the applicants’ claims that he will be killed or assaulted by his ex-wife’s family on returning to India to be speculative and far-fetched.   I do not accept the applicant’s claims that his ex-wife’s family will potentially kill or assault him because of the old dispute from 2008 if he returns to India.    I do accept that they may want to pursue dowry and related claims against him, in the event that he returns to India.  I am not in a position to say whether such claims are, as the applicant claims, ‘false’ dowry harassment and abuse claims.  Based on the country information, including the articles provided by the applicant, I acknowledge that being charged with and prosecuted for an offence related to dowry harassment in India could potentially take time and resources to defend. I do not accept however that the very act of laying charges amounts to causing the applicant serious harm.  I do not accept that he will be wrongfully imprisoned if such charges are laid. As discussed with the applicant at hearing, the Supreme Court has directed that in such cases, prospective defendants should not be imprisoned pending the hearing on unproven dowry claims.  In his own case, the very fact that his parents have ‘beaten’ the same charges years ago and arising from the same allegations claimed against him must impact on the likelihood of any revival of charges against him and on how seriously they would be taken if they were. 

9. Because an unsuccessful prosecution has already run its’ course against his parents, I find that the chance that the applicant would be subjected to further prosecution for the same alleged offences for which an FIR was lodged in 2008 on his return to India is remote.  I am not satisfied that in the applicant’s case there is a real chance that he will face such claims if he is to return to India.

10. I have also taken into account and considered the applicant’s assertions that his former in-laws know politicians and police in Amritsar and that they ‘therefore’ have contacts throughout the country and will trace and harm him wherever he goes.  When I asked who and how they would do so, the applicant was vague, stating only that they would do so, ‘somehow’.  His evidence is that local police and local politicians in Amritsar would be likely to assist his in-laws, due to influence and bribes.  As put to the applicant at hearing, I find this claim vague and implausible.   As explained to the applicant, I have concerns about the plausibility of unrelated but ‘important’ people in his community searching for him so many years after a simple marriage breakdown.  After all, his parents successfully defended the claims many years ago despite any apparent ‘interference’ from those same ‘important police or community members.’  

11. The applicant claims that even if his in-laws may not be looking for him currently, they would revive their interest as soon as they discovered he had returned to India.  He could not explain how they would discover that he had returned, confirming that his family would certainly not tell them of his return.  I have taken into account that no-one has been actively looking for him for at least a year, and that even on that last occasion it was simply a phone call to his [sibling] to enquire about him and with no physical threats.  Based on his parents’ experience in successfully defending the proceedings based on the same charges, I do not accept the applicants’ claims that his ex-wife’s family are able to influence or corrupt future court proceedings, that they are well connected, or able to locate the applicant ‘wherever he is’ in  India on return. On balance, I consider that the risk that the applicant is of ongoing interest or would be ‘discovered’ on his return to India and subjected to ongoing harassment, intimidation, and false prosecution (or that he would be killed) if he returns to India by his former in-laws or anyone acting on their behalf is remote.

12. The applicant stated that if he returned to India he would face hardship and difficulty finding work due to his lack of education and age.  He expressed a desire to stay in Australia. I accept that the applicant may experience some hardship on returning to India and re-establishing himself, and have therefore considered this aspect of his claims.  He has not provided information suggesting that any such hardship as he referred to would be the result of him being targeted or impeded by any person or authority in re-establishing himself in India, or that he would face hardships any greater than those experienced by any other member of the Indian community either relocating within India or returning there after a lengthy period overseas.  I note that the applicant has the emotional support (at the very least) of his family, including his [sibling] who lives in a large city distant from his former home.    He also has experience living and working in a foreign country (Australia).  Apart from his age and his relative lack of education, the applicant did not raise any other, unusual or significant circumstances which could or would potentially affect his ability to satisfactorily re-establish himself in India or which would substantially impede his capacity to subsist.  Examples of ‘serious harm’ for the purposes of s.5J(4)(b) as provided in s5J(5) of the Act include significant economic hardship that threatens an applicant’s capacity to subsist, denial of access to basic services or denial of a capacity to earn a livelihood of any kind.  I do not accept that the difficulties described by the applicant and that he may potentially experience, (including some hardship finding work and accommodation) wherever he chooses to reside in India, would be so serious as to impede his capacity to subsist or to cause him ‘serious harm.’

13. Consequently, I do not accept that there is a real chance that the applicant will suffer serious harm (being assaulted or killed, falsely imprisoned or wrongfully prosecuted for dowry offences and abuse) by his former in-laws or people associated with or corrupted by them (including the Judiciary or Police) if he returns to India.  I have found that any hardship he may face in re-establishing himself in India (finding work and accommodation) is not sufficient to amount to serious harm.   Persecution must involve ‘serious harm’ (s.5J(4)(b) of the Act).  I conclude and find that there is not a real chance that the applicant will be persecuted for any reason if he returns to India.   

14. I find that the applicant does not meet the refugee criterion in s.36(2)(a).

    Complementary Protection

15. I have turned to consider whether the applicant meets the criteria in s.36(2)(aa).  In doing so, I must be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to India, there is a real risk that the applicant will suffer significant harm.

16. Section 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: MIAC v SZQRB [2013] FCAFC 33.

17. I refer to and rely on my findings above in relation to the applicant’s claims.   I do not accept that the applicant faces a real risk of being killed, assaulted, falsely imprisoned, prosecuted or harassed with false charges related to dowry harassment or related charges.  I do not accept his claim that the applicant will be of interest to corrupt politicians or police officers on his return or subjected to malicious prosecution in relation to the breakdown of his marriage. I have found that he may experience some hardship in re-establishing himself but I find that such hardship is insufficient to amount to causing the applicant significant harm.  The applicant did not raise it as a separate claim, but the articles he referred to suggest that men falsely charged with dowry harassment have been known to take their own lives due to the harassment involved.  I have found that there is not a real risk that he will be falsely charged with dowry harassment or related charges, and thus I conclude that there is not a real risk that the applicant will take his own life as a consequence of facing and defending such charges.  In any event, I note that in EZC18 v MHA [2019] FCCA 464 the Court found that the risk of suicide by an applicant will not result in significant harm where there is no requisite intention from a third party to deprive the applicant of their life.

18. The applicant did not raise and the evidence before me does not disclose any other claim that he would suffer other, significant harm, as a necessary and foreseeable consequence of him being removed from Australia to India. 

19. On the evidence and information before me, I therefore conclude that there are not substantial grounds (or any grounds) for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed to India.

20. 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). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. 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

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

    Anne Grant
    Member