1612712 (Refugee)

[2019] AATA 320

1612712 (Refugee) [2019] AATA 320 (21 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612712

COUNTRY OF REFERENCE:                  India

MEMBER:Sheridan Lee

DATE:21 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 January 2019 at 2:26pm

CATCHWORDS

REFUGEE – protection visa – India – particular social group – inter-caste marriage – Brahmin – Sikh – death threats from family members – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 July 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are citizens of India. The primary applicant is a [age] year old woman, and is married to the second named applicant. They applied for the visas on 21 December 2015. The delegate refused to grant the visas on the basis that while it may be unsafe for the primary applicant to return to her home area of Jammu, it would be safe and reasonable for her to live in another area within India.

3. The Tribunal viewed a copy of the primary applicant’s Indian passport and a copy of the secondary applicant’s passport was provided on the departmental file. I accept that the applicants are citizens of India and will assess their claims against India as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.

CRITERIA FOR A PROTECTION VISA

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

2. 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.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a).

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

5. 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

1. 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

Claims for protection

1. The applicants seek to invoke Australia's protection obligations so that they do not have to return to India, where they claim to fear harm from the primary applicant’s family on the basis of their marriage. The second named applicant is included in the application on the basis that he is a member of the family unit of the primary applicant. He has made no additional or separate claims for protection. [The second named applicant] left all relevant questions on the application for protection form blank and did not attend the hearing.

2. On her application for protection form, the primary applicant (the applicant) claims to be Hindu of the Brahmin cast of Jammu and Kashmir. [In] February 2014, she married the secondary applicant in [Australia]. [The second named applicant] is a Sikh and the marriage took place without the permission of the applicant’s parents. On her form, the applicant alleges that during her last trip to India she received death threats and if she returns to India she will be physically harmed or killed for showing disrespect to her parents and bringing shame on the family. The form outlines that she has relatives across India and they would locate her if she moved elsewhere in India and that police in India don’t get involved in religious or family matters.

3. The applicant attended a hearing on 3 December 2018 to give evidence and present arguments. [The second named applicant] was invited, however he did not attend the hearing. The applicant advised that [the second named applicant] has been working hard and wasn’t feeling well. I asked if he is currently suffering any medical condition, and the applicant said he is not. No medical certificate was submitted and the applicants did not request that the hearing be adjourned.

4. At the hearing, the applicant gave evidence that she was born in Jammu and Kashmir. Other than time she spent studying in Amritsar in the state of Punjab, the applicant lived in Jammu and Kashmir with her parents [and siblings]. The applicant first came to Australia [in] January 2009 to [study].

5. The applicant outlined that she met her husband in 2013 when she was [working], and they married in 2014. An Australian Certificate of Marriage has been provided to the Tribunal. The applicant outlined that the couple had a small function in Australia in February and travelled to India in December to have a wedding ceremony.

6. The applicant gave evidence that [the second named applicant] currently lives in [Australian City 1] and she has been living in [Australian City 2] since March 2018, where she accepted a job as [Occupation 1]. The applicant outlined that they generally travel fortnightly to visit each other.

7. Booking details for [flights] from [City 2] to [City 1] for the applicant were provided for flights on 29 March, 15 and 22 June and 26 October 2018. A tax invoice issued by [airline] was also supplied for a booking for [the second named applicant], however there were no flight details or confirmation of the destination.

8. The applicant stayed in India for six weeks from [December] 2014 until [February] 2015 at the time of the wedding ceremony. At the hearing, she gave evidence that [the second named applicant]’s family attended the ceremony, however not many people from her family attended. When I asked the applicant who attended from her family, she said that her parents and siblings had attended - her sister was always supportive of the marriage.

9. The applicant explained that she is from an orthodox Hindu family, however she thought it would be ok and everything would work out with her marriage. She gave evidence that her parents initially approved of the marriage, however due to religious and community pressure they now remain quiet. The applicant’s mother told her she has brought shame on the family and she’s not sure she can be on her side or protect her.

10. The applicant outlined the she went to her home town ten days before the wedding ceremony, but once she was married things became worse. She started to get calls and couldn’t visit with her family. I asked the applicant who was calling, to which she responded that her Aunties and Uncles called to say they were not happy with the marriage and she had brought shame to the family. At first her Mum reassured her that they would calm down. The applicant claims that she has been scared to go back since that visit and hasn’t returned to India for four years.

11. I asked the applicant who had been threatening her. The applicant gave evidence that it is primarily coming from two Uncles: [Mr A] and [Mr B]. She went on to say that [Mr A] is [an office bearer] of the Bharatiya Janata Party (BJP) for the Jammu North area and [Mr B] works in [a certain industry], however she couldn’t be sure of his post. I requested that the applicant provide evidence regarding the identity of her Uncles and their positions, for example media articles, and provided additional time post-hearing. The applicant did not provide any further evidence on this point.

12. I asked when the applicant last heard from her Uncles. She gave evidence that she heard from [Mr A] around two months back. He said that things are not settled ‘here’ and that perhaps the family will disown her. He advised the applicant that she should not return home and that they don’t want to see her husband. The applicant said that most of the time her family calls her, however one time she called hoping to speak with her cousins. She explained that she had been close to her cousins before the marriage and now they won’t talk to her.

13. I asked the applicant if she had any phone records to evidence the calls that have been made to her. She said no and explained that she mostly speaks with her sister.

14. I raised concern with the applicant regarding the timing of her application for protection. She was married in February 2014, travelled to India for the ceremony in December 2014 and did not claim protection until December 2015, at which point she had few visa options remaining. The applicant explained that she was hoping to apply for a Subclass 457 visa, but then the rules changed. She gave evidence that a protection visa was not her first choice; she thought things at home would settle down, but they didn’t. The applicant’s lawyer recommended the protection visa as an option.

15. The applicant’s representative also outlined that the applicant had made the protection application half-heartedly. It was her goal to get a skilled visa but then the rules changed. She found a company that was willing to sponsor her. He gave evidence that the applicant did not lodge the protection visa application straight away because she already had a valid visa. However, now she is in a position where she would be forced to return to India if she did not apply for protection. He contended that the threat from the two individuals mentioned by the applicant is real. He explained that they are active politically and that the applicant’s family is the priest of the local temple. No evidence was provided as to which member of the applicant’s family holds a position at the temple. Finally, he outlined that Jammu and Kashmir is an isolated part of India that has experience significant civil unrest. He contended that they do not follow the general rules of India and since the BNJ came to power, there have been more than 1000 honour killings in areas like Jammu and Kashmir.

Assessment of claims

1. I accept that applicants were legally married in Australia in February 2014 and travelled to India to hold a wedding ceremony in December 2014. I accept that the primary applicant is a Hindu and the second named applicant is a Sikh and that [the second named applicant] is of a lower caste. While the travel documentation provided by the applicant does not demonstrate that the applicants have travelled to visit each other fortnightly, I accept that the applicants are currently living apart due to work commitments and visit each other relatively often.

2. The Department of Foreign Affairs and Trade (DFAT) Information Report on India[1] states that India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal. However, arranged marriage continues to be the norm.

   According to local sources, violence associated with inter-religious or inter-caste marriage is more prevalent in Haryana, Uttar Pradesh and Rajasthan, especially if a Muslim man is involved or the man is from a lower caste than the woman. That said, sources observed that acceptance of marriages outside of castes or religion, or even of marriage partners not chosen by the family, depended heavily on individual family beliefs. Some families, particularly in urban areas, are more accepting, whereas others are extremely conservative and do not allow their children to choose spouses.

   DFAT assesses that treatment of people in inter-religious or inter-caste marriages varies according to the families involved. In some cases the families of intending marriage partners may perpetrate violence against them.

   [1] 17 October 2018

3. In this case, I do not accept the applicant’s claim to have been threatened with violence or death by her family. On her application for protection form, the applicant originally claimed that she was married without her parent’s permission. At hearing she gave conflicting evidence when she explained that her parents attended the wedding ceremony and originally approved of her marriage. The Tribunal did not have the benefit of receiving evidence from the second named applicant to corroborate the primary applicant’s claims and the applicant was unable to supply phone records or any other evidence to demonstrate contact from her family.

4. The applicants travelled to and remained in India for 6 weeks after they were legally married. I do not consider this as indicative behaviour of someone who has had threats made to their life.

5. Further, I do not accept that the applicant’s Uncles hold positions of political or societal influence or that a member of her family holds a position as priest of the local temple. No evidence was submitted to substantiate these claims with the application for protection to the Department or with the application for merits review made to the Tribunal. When I provided the applicant with additional time to submit evidence demonstrating the positions held by her family, no evidence was submitted on this point. I also had regard to publically available information on the official website of the BJP, which lists the [officer bearer] for Jammu and Kashmir as [another person]. No individual by the name of [Mr A] was listed in the official roles for the BJP in Jammu and Kashmir.

6. When viewed cumulatively, and in conjunction with the timing of the applicant’s claim for protection when she had few visa options remaining, I do not find the applicant to be a credible witness. I do not accept that the applicant faces a real chance of serious harm from her family if returned to India.

7. Given the above findings, it is not necessary to assess the applicant’s claim that protection from Indian police is withheld in family matters.

8. Country information supports the representative’s claim that area of Jammu and Kashmir has experienced civil unrest. According to the South Asia Terrorist Portal (SATP), at least 17 active and 18 inactive terrorist or extremist groups exist in Jammu and Kashmir (J&K). Some militant outfits are based in Pakistan or receive support from Pakistan-based groups and engage in organised crime. Reports indicate that some groups may have ties with Al Qaeda in the Indian subcontinent or the Pakistani and Afghan Taliban movements. DFAT is not aware of militants being forcibly recruited, however DFAT is aware of claims of the recruitment of a small number of children as fighters.

9. Violence and civil unrest has escalated since 2016 following an increase in cross-border firing, militant attacks and political protests. The Pakistan government publicly accused Indian forces of violating the 2003 ceasefire agreement more than a thousand times during 2017, killing 28 civilians and injuring 117. Conversely, the Indian government accused Pakistan of violating the ceasefire more than 800 times, resulting in the deaths of 25 civilians and 18 Indian troops.

10. The applicant has not claimed the she or her family suffered any harm as a result of the civil unrest while living in India. As previously noted, the applicant grew up in Jammu and Kashmir and her family continue to live there. Other than a general statement regarding civil unrest in the area, the applicant has made no claims specific to her circumstances. She has not alleged membership of a political group or that she has undertaken any political activities. The country information above indicates that there is no evidence that extremist groups are forcibly recruiting members. Further, no relationship was drawn between the applicant’s marriage to a Sikh man of a lower caste and the civil unrest within Jammu and Kashmir. On the evidence before me, I find that there has been no past harm and there is no real chance of serious harm to the applicant as a result of the civil unrest if she returns.

11. For the reasons given above, I find that there is no real chance that the applicant will face serious harm for any reason if she were returned to India: s.5J(1)(a). I further find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will suffer significant harm: s.36(2)(aa).

12. I am not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa). As previously outlined, the second named applicant has made no additional or separate claims for protection.

13. It follows that the applicants are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

DECISION

1. The Tribunal affirms the decision not to grant the applicants protection visas.

Sheridan Lee
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.

…