1613377 (Refugee)

[2017] AATA 383

1613377 (Refugee) [2017] AATA 383 (3 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613377

COUNTRY OF REFERENCE:                  India

MEMBER:Peter Vlahos

DATE:3 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 03 March 2017 at 3:40pm

CATCHWORDS
Refugee – Protection visa – India – Particular social group – Inter-caste relationships – Love marriages – Threats from Khap Panchayat – Honour killings – State protection

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

CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA(1998) 86 FCR 547

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 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 [in] February 2014 and the delegate refused to grant the visa [in] October 2014.

3. On 25 January 2016, the Tribunal (differently constituted) affirmed the decision under review. [In] August 2016 the Federal Circuit Court ordered, by consent, that a Writ of Certiorari issue quashing the Tribunal’s decision and that a Writ of Mandamus issue directed to the Tribunal requiring it to determine the application made to it for review of the decision of the delegate to refuse the applicant’s application for a Protection visa according to law.

4. The applicant appeared before the Tribunal on 15 November 2016 to give evidence and present arguments.

   RELEVANT LAW

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

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A (2) for the purposes of the application of the Act and the Regulations to a particular person.

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

10. Second, an applicant must fear persecution. Under s.91R (1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R (1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R (2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A (2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘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.

18. 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.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

20. The applicant claims to be born on [date] in [his hometown] in the Indian state of Rajasthan and claims to be a citizen of India.

21. The applicant claims never to have been married or engaged; to belong to Hindu faith/tradition; and that he speaks and writes Hindi and English.

22. The applicant’s father is [name], aged [age] and is a [retiree]; his mother is [name], aged about [age], and is a housekeeper. Both are retired, residing in [the hometown]. The applicant has one sibling [who] is married with no children and living in the same village as the applicant’s parents.

23. The applicant claims his family as well as himself belong to the Jatt or Jagt caste and that he and his family belong to the Hindu faith/tradition.

24. The applicant claims he went to school in [another town] in the Indian state of Haryana and attended [a named] University in the capital territory of Chandigarh. The applicant speaks, reads and writes in English and speaks Punjabi.

25. The applicant arrived in Australia [in] September 2006 on a class TU [student] visa for tertiary studies. [In] June 2010, the applicant applied for a class TU subclass [visa] for [study] and was granted this visa [in] June 2010.

26. [In] September 2011, the applicant applied for a subsequent [student] visa but was refused this visa [in] November 2011. The applicant sought merits review of this decision at the Tribunal, differently constituted.

27. The Tribunal affirmed the primary decision not to grant the student visa. [In] August 2013, the applicant requested the Minister to personally intervene in granting the student visa. [In] January 2014, the Assistant Minister declined to employ her power in this case.

28. [In] February 2014, the applicant applied for a XA subclass 866 visa.

    Written Claims for Protection

29. The applicant provided limited in detail claims in his 866 Form. Below is a summary of those claims:

    §The applicant left his country because he was in a relationship with a girl from a different caste. The relationship brought shame and dishonour to the community. The applicant claims he was shunned by relatives and that the shame can only be erased ‘…through killing.’

    §The applicant’s sister or girlfriend was threatened and even the applicant and his family were forced to move far away as he had brought shame to the community;

    §The applicant fears anything could happen if he was to return to India, including being killed or being forced to suicide;

    §The ‘khap’ will harm the applicant if he returns and even try to harm his family members;

    §The authorities in India will not be able to protect the applicant because due to the perpetrators’ belief that the victim has brought shame to his community and the authorities do not have proper arrangements to save the victim because many of them are khap members;

    §The applicant claims ‘…the law itself us under the shadow of honour…’ Honour killings in India are brushed aside as mere numbers in the newspaper reports, especially in northern India were the khap panchayats are proactive.

30. The Tribunal notes the 866 Form says the applicant maintains contact with his parents through his phone and over the internet.

    Primary Decision

31. The applicant attended an interview with the Department [in] July 2014. The Department summarised these claims as follows:

    §The applicant met a young woman, [Ms A], while attending university in Chandigarh. At first, they were friends and then a relationship developed into a romantic relationship.

    §The applicant claims he proposed to her.

    §The respective families opposed the relationship because they were from different castes; because the marriage was not an arranged marriage and because [Ms A] was older than the applicant.

    §When the village community found out about the relationship, the applicant was attacked by ‘khap’ members and other members of the community;

    §If the applicant returns to India, he fears he will be killed by members of his village khap and other members of the community or by [Ms A’s] brother;

    §The applicant fears that his village khap and community members will make him enter into an arranged marriage;

    §The authorities of India cannot protect him. They do not have proper arrangements to save victims of honour killings. It is especially like these in Northern India where Khap Panchayats are proactive.

    Evidence at the hearing

32. The applicant appeared at a hearing before the Tribunal (differently constituted) on 19 January 2016 and reference is made to the evidence taken at that hearing as relevant below. After the hearing the applicant produced a copy of a Permanent Account Number (PAN) issued by the Income Tax Department in India to [Ms A] and copies of certificates in relation to her educational qualifications.

33. According to the applicant it was while studying at university he met ‘…his love of his life.’ At first, the relationship between the applicant and his girl was a friendship (according to the applicant) and around 2004, the relationship became very serious and caused him to propose marriage.

34. The Tribunal was told that the applicant was succumbed with happiness when his girlfriend (who the applicant identified to the Tribunal) as ‘[Ms A]’ said ‘yes’ to the applicant’s marriage proposal. Moreover, it did not matter to the applicant that his girl was a year older than him.

35. However, the couple’s relationship encountered family pressures. The applicant told the Tribunal that at first this relationship was concealed from the families of the couple. Both originated from Indian families which were strict in their morals, ethics and adherence to the respective dictates of the caste they belong to.

36. Indeed, the applicant told the Tribunal that the reason that the secrecy of the relationship was attractive to both was the fact that the couple’s respective parents would generally feel disappointment if they knew about the relationship being carried on while their children were studying at university.  More to the point, the applicant told the Tribunal that his parents would scold him upon knowing of this relationship stating that “…we sent you to university to get educated not to find a wife…”

37. Nevertheless, the Tribunal was told that when the university holidays came and the two went to the village, applicant’s girlfriend’s brother ‘…finds out about the relationship…’ from (according to the applicant) ‘…common friends.’ Eventually, the applicant’s father found out about the relationship from the applicant’s mother who had been privy to the news of the relationship between the applicant and his girl, [Ms A] since 2005 (when the applicant had confided it his mother).

38. The reaction of the applicant’s father was direct. The Tribunal was told that he confronted the applicant with the news and showed his disappointment and disapproval by ‘…slapping’ the applicant’s face. The Tribunal was told that his father was against the relationship ‘…because of his conservative thinking…’ The applicant’s father ‘…wanted to do the traditional thing [he] did not want to aggravate the khap which would place his ‘….family in danger.’ On the other hand, according to the applicant, his mother tried in vain ‘…to calm things down…’

39. Regardless of the applicant’s mother’s best efforts to calm matters down and to contain any further fall-out, the Tribunal was told that the applicant’s father told [one of his] brother (who together with his other [brothers] lived in the same village). According to the applicant’s evidence, his father and his brothers had disputes between them concerning ‘land’ and saw his relationship with his girlfriend ([Ms A]) as an opportunity to seek advantage over his father by using this ‘relationship’ as a pretext to force the applicant’s father to relinquish his claims with regards to this ‘land’ (which the applicant did not identify its whereabouts to the Tribunal). The applicant also told the Tribunal that this was so, because he (the applicant) was the only son of his father and this entire situation was an opportunity for his father’s [particular] brother and his other brother’s to seize the applicant’s future claim as a possible ‘heir’ to this disputed parcel of land.

40. Fearful that his son’s relationship would “…bring shame on the village” the applicant’s father asked his son to go and to talk about his relationship with khap. The applicant told the Tribunal that he told his father that “…I will not do it…” He was faced with no other alternative but to leave his village. The Tribunal was told that [Ms A’s] brother found out about the relationship and also levelled ‘threats’ at the applicant. However, the applicant continued to see [Ms A] and at the same time continued to make arrangements to leave for Australia.

    Evidence - Applicant’s decision to come to Australia

41. The applicant told the Tribunal that “…he did not know what he was getting into…” with regards to the “…resistance” he was encountering at the time concerning his relationship with [Ms A]. Admittedly, according to the applicant, he was “…too young at the time…” He also told the Tribunal that he was beaten ‘once’ or ‘twice’ by persons retained by the village’s khap. Moreover, even when he was away at Chandigarh studying at university his problems due to his relationship with [Ms A] “…would not end.”

42. During this time, the applicant told the Tribunal, he was engaged in discussions with his father concerning his wish to pursue higher studies and by the end of 2005 he decided to pursue those studies in Australia.

43. The applicant, the Tribunal was told informed his girlfriend about his intentions to study in Australia and according to the applicant, his girlfriend was supportive. Indeed, time away from India, would provide the applicant with an opportunity (according to the applicant) to re-consider his situation and plan, what he described as “…his resistance.”

    Evidence - Applicant’s studies while in Australia

44. According to the applicant he arrived in Australia in 2006 and undertook studies at [College 1] for a three year course in [subject]. The Tribunal was told that the applicant studied two (2) years at [College 1] and one (1) year at [a] University. His studies went well but in his third semester his student performance was not the best because of health issues. What followed was a series of events (according to the applicant) which eventually removed him from achieving his goal of furthering his education in Australia. The applicant tried to explain to the Department his low attendance at his scheduled classes but his visa was cancelled. He then appealed the decision to cancel his visa to the Tribunal (differently constituted). His appeal on that occasion was successful and he returned to [College 1] and to [University] but a ‘dispute’ over fees surfaced and through the offices of a migration agent, the applicant tried to organise another education college in order to complete his studies (in 2009). Later in 2010, he applied for a [different course] but the Tribunal was told that his attempts ended because this education institution became defunct.

    Evidence - Applicant’s relationship while in Australia with [Ms A]

1. According to the applicant for three years while he was in Australia, his contact with his girlfriend, [Ms A] was on a “…off and on basis…” The Tribunal was told that the applicant’s girlfriend’s mobile phone had been taken from her while she was in residence at her [Relative 1’s] home in Chandigarh. However, the two found other means to communicate and according to the applicant, their ‘relationship’ was ‘strong’.

2. Indeed, the Tribunal was told, that though his father at first, resisted his intentions concerning his relationship with [Ms A], he would not resist him but his father cannot leave the village. As for the applicant (according to him) he cannot return to his village because of the khap system. In regards to a relationship with his girlfriend’s family, the Tribunal was told that was “…non-existent…” According to the applicant the strained relationship between him and his girlfriend was due to the fact that the two originated from two different castes - the Jat and [another caste]. One was (according to the applicant’s explanation) a “…farming/rural caste”, the latter, a “caste of administration.”

3. The Tribunal asked the applicant was there any prospects for an understanding being agreed to which would allow both him and his girlfriend to marry. The applicant’s response to the Tribunal’s question was that “…if there is a marriage, it will be a ‘massacre’ which will extend to other members of the family…”

4. The Tribunal asked the applicant in the ten years he has been in Australia, why his girlfriend not visited him. The applicant told the Tribunal that her family does not permit this to occur and have refused to provide her with a passport. Moreover, in this time (that is while the applicant has been in Australia), the applicant has made proposals of marriage which have been refused not because his girlfriend refused but these proposals are refused because the infliction of punishment is the threatened alternative for non-compliance. Regardless of these difficult circumstances clouding the relationship between the two, the applicant was certain (as he had been told) that [Ms A] has no other relationship.

5. Indeed, when the applicant’s girlfriend is with the ‘[Relative 1]’ the two talked with each other over the telephone. The applicant also told the Tribunal that his girlfriend has been living with her [Relative 1] for the past 4.5 years and is supporting herself by working as a ‘[occupation].’ On the other hand, the applicant is not currently working and has been supported by his friends (her, in Australia) and by his father. Moreover, the applicant told the Tribunal that he currently owes ‘6 or 7 friends’ the amount of ‘$AUD[amount]…’

   Evidence - If the applicant returns to India – would he consider relocation?

6. The Tribunal asked the applicant – if he was to return to India could he re-locate to some other part of India in order to be secure. The applicant informed the Tribunal that the “…Khap have various levels…” with which they operate and function in India. Also, there was “…corruption” which allowed for any information about anyone to be “…sold and brought…” The applicant also told the Tribunal that his father had “…been the subject of continued pressures from the members of the village’s Khap…”  Who, according to the applicant “…would continuously attend on his father and ask ‘…when is your son returning to India…’ and ‘…when is your son to marry…’

7. Again, the Tribunal informed the applicant that the nature of the questions put to his father as the applicant described them, might not be interpreted as ‘threats’ directed either to his father or through his father towards the applicant. These ‘questions’ could be observed as members of the village seeking information from his father about the applicant’s intentions concerning his return to India. In response, the applicant told the Tribunal that he did not see it in this way and that these ‘questions’ asked of his father were “…threats of future bad intentions these people had for him…”

8. Though the applicant was ambivalent about re-location within India, he conceded to the Tribunal that it was “…an option for him to consider…” Indeed, the Tribunal informed the applicant that India was a ‘huge country’ which had (according to the country information) huge populous cities like Chennai (the former ‘Madras’). The applicant also told the Tribunal that it was possible for him to consider relocating to the ‘Andam & Nicobar Islands’ which are situated in the Indian Ocean and are a part of India.

9. While ‘relocation’ was a ‘real option’ for the applicant if he chose to take it, it was also a ‘very difficult one’ for him to actually carry out. The applicant’s explanation of the ‘difficulties’ he would encounter when and if he chose to relocate to another part of India, primarily concerned the khap system, because according to the applicant “…its members could locate him throughout India.” This was possible (according to the applicant) because the khap system had “…networked throughout India because of corrupt officials within government and police in all the states…” and this allows them to “…track him down and kill him…” In response, the Tribunal asked the applicant if he could provide independent information of this happening in India for the Tribunal to consider. The applicant told the Tribunal that he would provide this information but required some time to collate his research and to provide it to the attention of the Tribunal.

10. The Tribunal also requested from the applicant to make available to the Tribunal the current logs of his telephone calls to his girlfriend in India. The applicant told the Tribunal that he had no issue providing this information to the Tribunal.  

    Post-Hearing submissions by the Applicant

11. Following the hearing of this matter the applicant provided to the Tribunal on 30 November 2016 information concerning the khap panchayat and their roots throughout the country in India. The information provided by the applicant which is unsourced can be summarised as follows:

    §The Khap is an ancient concept which has written references found back from the Rig Vedic times. It is a social-political group, which usually comprise of the upper caste and elderly men from the Jat community, which are united by geography

    §Their purpose. The Khap Panchayat regulates the khap formed under the same gotra [clans or sub-caste] families. It basically asks for the amendment in the Hindu Marriage Act, 1955 banning marriages within the same gotra or even gotra from the same village. According to this, a boy and a girl same gotra are brothers and sisters. Love marriages are prohibited in the villages where the khap panchayat operates

    §How the khap panchayat operate? Ten to fifteen people constitute a Khap Panchayat, who control and make decision of the lives of the young people. Khap enforces its summons through social prohibitions and sanctions, imposes heavy fines or even kills the victims or makes them commit suicide. A lot of young couples are being killed because of flouting the khap rule.

    §Why is the Khap powerful in all parts of India? The Khap Panchayats are heavily powered by the politicians to keep the maximum vote bank throughout a particular district.    

12. Once this explanation was complete, the applicant provided again ‘unsourced’ examples which he described or the undisclosed source he consulted described as “…the dirty forms it takes –hard core reality of the Khaps….” There were references to ‘…female foeticide’, ‘…honour killings’, ‘…forced marriages’. This ‘unsourced’ information provided by the applicant goes on to concentrate the reader’s attention on three cases of ‘honour killings’ in Haryana, Jharkhand and Tamil Nadu.

13. The applicant provided no telephone logs of his discussions between himself and his girlfriend, [Ms A] as requested by the Tribunal in its letter to the applicant dated 16 November 2016.

    The Tribunal’s conclusions about the applicant’s claims

    Credibility

14. The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:

    “…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”

15. The Tribunal also accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph 196). However, the Handbook states (at para 204):

    “The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”

16. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

17. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

18. 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. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumount J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J, and Kopalapillai v MIMA (1998) 86 FCR 547).

19. First, the applicant claimed that he fears persecution in India at the hands of his village’s khap Panchayat because he had formed a ‘love-relationship’ with a local village girl from another caste which the khap disapproved. The Tribunal does not accept this claim as credible. According to the applicant’s evidence, his relationship with his girlfriend commenced in 2004 while both were attending university, in Chandigarh. After both tried to conceal their intimate relationship from friends and family, friends told the girl’s brother, who did not accept the relationship as proper and later the applicant’s father found out about it and expressed similar feelings and ‘slapped’ the applicant to show his displeasure.

20. Moreover, in this time period, the applicant’s father makes known his son’s relationship with this girl to his brothers who are members of the village’s Khap Panchayat and there is instant disapproval which is also communicated to the applicant directly at a meeting he has with the khap. The applicant is also threatened by his girlfriend’s brother – not to continue with the relationship. Indeed, the applicant in his post-hearing submission provided the Tribunal with some very disturbing (but unsourced) information about the workings of the khap panchayats in some areas of India. This information cited instances of both violence and murder. The country information[1] available to Tribunal states that village caste councils (known as Khap panchayats) are sometimes responsible for mistreating or ordering the mistreatment of, inter-religious or inter-caste couples. Some khap panchayats have been responsible for decreeing or encouraging honour killings and other forms of mistreatment towards couples of different castes and religion who either have married, or wish to do so.[2] Articles in TIME and Daily News and Analysis reason that the khap panchayats are attempting to assert their authority by issuing such rulings at a time when sections of modern society see them as increasingly irrelevant.[3]  

    [1] MRT-RRT Country Advice – Mixed Marriages in India –June 2012, see pp. 15-16, 22

    [2] ‘India Court calls for ‘stamping out honour killing’ 2011, BBC News, 20 April - Accessed 7 September 2011

    [3] Singh, M ‘Why Are Hindu Honour Killings Rising in India?’ 2010, TIME, 25 May – Accessed 21 March 2012; Nair, M 2010 ‘Khap panchayats flex muscle as shifting social dynamics threaten their relevance’, News Day and Analysis, 18 April -threaten-their-relevance_1372608 - Accessed 11 August 2011.

21. Human Rights Watch also reported in July 2010 that there had been an increase in honour killings in the northern Indian states of Haryana, Punjab and western Uttar Pradesh. There were also cases reported from the National Capital Territory of Delhi. The report states that these incidences of honour killings involved khap panchayat edicts issued against inter-religious and inter-caste couples. According to the report “…some local politicians and officials have been sympathetic to the councils’ edicts, implicitly supporting the violence.”[4]

    [4] Human Rights Watch 2010, India: Prosecute Rampant ‘Honour’ Killings, 18 July - Accessed 26 August 2010.

22. September 2010 report from The Hindu, a major English language daily, indicates that a Hindu-Muslim couple from Phaphunda, Uttar Pradesh had committed suicide after they had been ordered by the local khap panchayat to annul their marriage or face death. Police charged the panchayat with abetting suicide. However, the local village chief claimed it was a gathering of elders from the two families, not the panchayat per se, which issued the ultimatum.[5]

    [5] ‘Marriage registration process to be smoother in Delhi’, The Hindu, 14 September - Accessed 23 September 2010

23. From the country information referenced above by the Tribunal, the threats of the khap can be considered significant and in some instances injurious and fatal. The Tribunal noted that the Department’s delegate records that the applicant claimed that 100 persons from the village attacked him (but he had suffered no fractures) and then he moved to Chandigarh to live. Then, in his evidence to the first Tribunal the applicant claimed that he worked in a [business] in Chandigarh and that [Ms A’s] brothers and some of their friends came to the company where he was working in Chandigarh but that they were not able to enter the premises because of company security. It stands to reason, if the khap wanted to locate him and harm him they had ample opportunity and information to do so – they did not. Therefore, having regard to the history of the relationship given by the applicant himself and the country information in relation to the significant threat posed by khap panchayats, the Tribunal does not consider credible the applicant’s claim that his life was in danger or that he otherwise faced harm by his village’s khap either because his relationship with his girlfriend was a love relationship or because they were from different castes.

24. Secondly, the applicant stated that his relationship with his girlfriend, [Ms A] regardless of the impediments (referred to above) and distance between them for a period of ten years, remains strong and the applicant’s commitment to the relationship remains. The Tribunal noted that both the delegate and the first Tribunal accepted that a relationship existed, the applicant provided evidence to the Department (emails dating back from 2007 and [a communications provider] usage data report) and to the first Tribunal (the PAN card and educational certificates previously referred to herein) in support of the existence of the relationship. However, at the hearing, the Tribunal was told, that the applicant communicated regularly via the telephone which his girlfriend had access to while she lived with her [Relative 1]. The Tribunal requested from the applicant to provide evidence of continued telephone communications between him and [Ms A] but the Tribunal was provided with no phone logs. The Tribunal considers it reasonable to expect that, if the relationship continued to exist and the applicant communicated regularly with his girlfriend by telephone as he claimed, he would have been able to provide the Tribunal with the evidence of the existence of the relationship. Indeed he told the Tribunal he had no issue providing this information to the Tribunal. Having regard to his failure to provide this evidence the Tribunal does not accept that the relationship continues to exist as the applicant claimed.

25. Thirdly, the applicant told the Tribunal that over a period of time his father, who resisted his intentions initially, told him that he would not persist with his resistance if he wished to further his relationship with his girlfriend. However, if he was to return to India he could not return to the village because of the khap. Again, the Tribunal does not consider this claim as credible. If, there was a subsisting or current edict issued by the village panchayat, it would have been enforced and made known to the applicant in the early days of his alleged forbidden relationship. His whereabouts in Chandigarh were well known to [Ms A’s] brother and his friends – they attended the company premises but could not harm him because of the company’s security and as he claimed the khap could find him anywhere – they did not.   The Tribunal does not accept for the reasons given above that the relationship between the applicant and [Ms A] is continuing and given the fact that he has been in Australia for ten years, the Tribunal does not accept that there is a real chance or real risk that he will be harmed by their respective families (including in particular [Ms A’s] brother), members of the community or the khap panchayat because of his past relationship with [Ms A] if he returns to India now or in the reasonably foreseeable future.

26. For those reasons, the Tribunal is not satisfied that there has been an ongoing dispute between the applicant and his village’s khap panchayat because of his relationship with his girlfriend (fiancée) and that as a result of this dispute the applicant experienced threats. Therefore, the Tribunal is not satisfied that the applicant has been harmed or threatened with harm as consequence of his relationship with his girlfriend from 2005 to the present. The Tribunal does not accept that, as the applicant claimed at the hearing, his paternal uncles his relationship with his girlfriend as a pretext to force his father to relinquish his claims to a disputed parcel of land.

27. For those reasons, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any reason if he returns to India for now or the reasonably foreseeable future. It is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he returns to India. 

28. The applicant does not meet the refugee criterion (s. 36 (2) (a)).

29. Having regard to the Tribunal’s findings of fact above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to India, there is real risk he will suffer significant harm.

30. The applicant does not meet the complementary protection criterion (s. 36 (2) (aa)).

1. 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

2. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Peter Vlahos
   Member