1614060 (Refugee)

1614060 (Refugee) [2019] AATA 5747 (20 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614060
COUNTRY OF REFERENCE:                   India
MEMBER:Christine Cody
DATE:20 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 December 2019 at 4:53pm
CATCHWORDS
REFUGEE – protection visa – India – religion – first applicant’s father converted several times between Hinduism and Christianity – applicants Christian – threats and attacks on father and first applicant by Hindu religious/political groups – father’s death in one attack – credibility – inconsistent evidence – first applicant’s return to India after working in another country – second applicant’s return after travel to another country and application for protection – no harm to second applicant or children – status of Christians in India – application under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65, 424A
Migration Regulations 1994 (Cth),
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

The applicants, who claim to be citizens of India, applied for protection visas under s.65 of the Migration Act 1958 (the Act) on 20 May 2016. A delegate of the Minister for Immigration and Border Protection refused to grant the visas on 18 August 2016. This is an application for review of that decision. The relevant law is set out at Annexure A.
Migration history
The applicants were granted [temporary] visas on 13 January 2016 valid until 26 May 2016. They arrived in Australia [in] February 2016 as the holders of [temporary] visas. The applicants applied for a protection visa on 20 May 2016. Prior to coming to Australia, the first named applicant worked in [Country 1] from 2005 until 2011. The second named applicant travelled to [Country 1] in 2011 in order to visit the first named applicant[1].
[1] Information sourced from delegate’s decision record and application forms.
According to movement records on the Tribunal file, the second named applicant departed Australia [in] October 2018[2].
[2] This was put to the applicants pursuant to S.424A of the Act, discussed further below.
The Department
The Department file contains various documents including the application forms, a written statement by the first named applicant setting out his claims for protection, a marriage certificate for the applicants, certified copy of passport identify pages; a copy of the delegate’s decision record, and an application for Bridging Visas to enable the applicants to travel to [Country 2] and visit their children.
According to the application forms of 19 May 2016 and accompanying written statement, the applicants’ background and claims can be summarised as follows:
First Named Applicant
·     The first named applicant (the applicant) was born on [date] in [Location 1], Kerala, India. He is a Latin Catholic, who speaks, reads, and writes Malayalam, English, and Hindi.
·     The applicant’s father is deceased, and his mother and sister live in India.
·     The applicant was refused a visa for [Country 3], a Shenghen visa, and a visa to [Country 4] in January 2014.
·     The applicant lived in three addresses in Trivandrum, Kerala, the first from birth until January 2011 and then another two address from February 2011 until 2014 ([House name 1], the wife’s family home[3]) and from 2014 to January 2016 ([House name 2], a house built by the applicant for his family[4]).
·     The applicant completed high school in Kerala in [month year]. The applicant completed a pre-degree and a [Subject] Degree at [a] University ([month year] – [month year]), and a Diploma in [year].
·     The applicant worked as [an Occupation 1] in [Country 1] from September 2005[5] until December 2011. He worked as [an Occupation 2] in [Country 1] from March 2013 until April 2013.
Second Applicant
·     The second applicant was born on [date] in Thiruvananthapuram, Kerala, India. She is a Latin Catholic who speaks, reads, and writes English and Malayalam. Her father, mother [and siblings] all reside in India. She was refused a visa for [Country 3] and [Country 4] in January 2014.
·     The second applicant lists two addresses: [House name 1] from her date of birth until 2014, and then [House name 2] from 2014 until January 2016.
·     She completed high school in Kerala in [month year], then a degree at a college in Kerala from [month year] until [month year].
·     The second applicant lists no employment and states her occupation as housewife.
·     The second applicant states that she is not making her own claims for protection.
[3] Evidence from the applicant at hearing that [House name 1] is the wife’s family home.
[4] Evidence from the applicant at hearing that [House name 2] is the house he built.
[5] This work was stated to have commenced in 2015; the applicant arrived however in [Country 1] in 2005, and the Tribunal accepts it started in 2005.
The applicant and the second applicant married [in] 2011 in India. They have a [son] (born [year]) and a [daughter] (born [year]) who both live in [House name 1], India.
The Applicant’s Claims
The applicant’s claims can be summarised as including the following:
·     The applicant’s parents had an interreligious love marriage, his mother was a Christian but his father was a Hindu. This was not common in the 1980s. The applicant’s father‘s name is Mr [A], but he converted to Christianity and accepted the name [B]. While the family of the applicant’s mother supported the marriage, his father’s family did not.
·     The applicant’s father became an alcoholic and left their family when the applicant was [age] years old. The applicant’s mother worked in India for two years[6] and then as [an Occupation 3] in [region] and brought up the applicant and his sister there until 1995.
[6] Addition from second statement to the Tribunal.
·     After completing his degree back in India, the applicant had to go overseas to find a job in order to get a consistent income for his family.
·     After the second applicant became [pregnant], the applicant resigned his job overseas and returned to India. The applicant intended to remain in India with his family as he wanted to be present in his children’s lives.
·     The applicant’s father came back; he tried to convince the applicant and his family that the father wanted to stay with them. On the advice of their parish priest, the applicant and his family agreed for the father to stay with the applicant’s mother and sister. The applicant’s father said that his parents had compelled him to marry a Hindu woman after leaving the applicant’s mother, and that he had a daughter with this woman.
·     Some days later, a small group of men came to the home with gifts, and promised the applicant and his family money, land, and other perks. The men told them to come back to the Hindu religion. When the applicant and his family refused their offerings, the men threatened that they will kill the applicant and his family if they do not become Hindus.
·     After a few weeks, a group of men came into the applicant’s house and asked about his father. They warned the applicant not to let his father live with his family as a Christian, as they are determined to undertake ‘khar vapasi’ and bring Hindus who have converted to other religions back to Hinduism. The men said that they may instigate a religious riot if the father continued to live as a Christian. The applicant’s father was horrified by this but he had been expecting the same since he came back.
·     A few weeks later, the applicant and his father were attacked by a group of people when walking home. The group yelled at the applicant’s father to revert to Hinduism, and that they would kill the applicant’s father and harm his family if he did not return. The applicant and his father were hospitalised due to their injuries.
·     Soon after they were discharged, the applicant and his father went out and were attacked again. The applicant escaped, but they killed the applicant’s father.
·     The applicant tried to file a police complaint, but the police did not accept the case and said that it was a normal death. The applicant believes that this was due to VHP’s influence.
·     The applicant received death threats from the people. The applicant moved to a neighbouring state, but the people found out where he was, and the applicant only escaped as his friend warned him.
·     The people told the applicant’s friend that they will kill the applicant. The applicant attempted to arrange a visa to [Country 4] and then [Country 5], but was refused. The applicants arranged an Australian visa, leaving their children with the applicant’s parents, as the visa might otherwise have been refused [in his statement made to the Tribunal, he said that this was a mistake, he had actually left the children with his wife’s parents].
·     The people have searched the applicant’s home in his absence.
·     The applicant fears that he will be attacked or killed by VHP or RSS/BJP; that BJP activists have immunity and impunity as their party is the ruling party in India; that the police are unwilling to assist him due to the religiously-motivated violence.
·     The applicant claims that VHP has been involved in mass violence against Christians. The applicant fears harm due to his religion at the hands of VHP. The applicant claims that VHP are present throughout India, and he therefore cannot relocate.
On 30 May 2016, the Department informed the applicant that his application may be decided without requesting additional information, and stated that the applicant should contact the Department within 7 days if he wished to attend an interview. The applicant did not respond. The Department refused the application on18 August 2016. The basis for the refusal was that the evidence was insufficient to satisfy the delegate that the applicant was a refugee or faced a real risk of significant harm. The delegate was also not satisfied that state protection would not be afforded to the applicant. The delegate was not satisfied that the second applicant could be granted a visa as a member of the family unit of her husband as his application had been unsuccessful.
There is a s 438(1)(a) non-disclosure certificate on file, which relates to folios 84 – 85, and 96. These are ICSE case notes relevant to the grant of a [temporary] visa, and a disclosure checklist. The basis for the certificate is that the folios contain information relating to internal working documents and business affairs.
It is appropriate to address the validity of the s.438(1) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in a document or information would be contrary to the public interest must be capable of forming “the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.” The only reason stated in the certificate is that the folios “contain information relating to an internal working document and business affairs.” That is neither a necessary nor a sufficient basis for public interest immunity.
At best, it is only a reason that could form part of the basis for a claim, not the basis, and does not communicate to the Tribunal any reason which meets the description in s.438(1). Since the certificate is not valid it does not trigger the operation of ss.438 (3)(a) and 438(3)(b) in relation to how the documents or information can be dealt with and the Tribunal has proceeded to treat the documents in the usual way as if there was no certificate. The disclosure check-list is an internal administrative document not relevant to the matters in issue in this case. The [temporary] visa notes show that the applicants were sent their [temporary] visas by email; the delegate had been concerned that this meant that the 5-6 weeks delay in leaving was due to the applicants’ delay. The applicant explained to the Tribunal that he had had engaged an agent who had created an email address for the applicant and who held the passports who was involved in obtaining the [temporary] visa and that there were difficulties in obtaining money to leave. The Tribunal is prepared to accept this and does not place any weight on the [temporary] visa notes or the delay in leaving.
The Tribunal
The applicants applied to the Tribunal for review of the decision on 2 September 2016. The applicant has not provided a copy of the delegate’s decision record. The applicant provided a second statement dated 30 December 2016 setting out his claims for protection including the following further information:
- The applicant’s father was baptised at [Church], [Location 2] by [a priest] [in] 1981.
- The applicant is a practising Christian, and the only male in his family.
- After his father left, the applicant’s mother did casual work for 2 years before working as [an Occupation 3] in [region] from 1990, and received financial support from her brothers.
- The applicant was forced to discontinue his studies, and went abroad to support his family. The applicant began working in [Country 1] in 2005. In December 2011, the applicant resigned from his job and returned to India as he was demoted and his wife was pregnant.
- The applicant believes that his step-mother instigated the VHP to take revenge against the applicant’s father and his family.
- The attack in which the applicant’s father was killed occurred around [time] [in] July 2013. The applicant and his father were attacked by a group of VHP people near a [location]. The applicant and his father were in a [vehicle] and the VHP people came up in [another vehicle] and chased the applicant and father. They surrounded the applicant and his father, and beat them with sticks, and one shouted that they should finish them. The applicant was kicked and strangled. When they focussed on attacking the applicant’s father, the applicant managed to escape and hide in a bush. The applicant witnessed them beat his father on the head and back, before taking the applicant’s father away on their [vehicle].
- The applicant filed a police report, but the police did not respond to the applicant. The police phoned the applicant the next day, and informed the applicant of his father’s death.
- The applicant attempted to arrange visas to [Country 4] in October 2014, and to [Country 5] in November 2014. The applicant relocated to Alappuzha in early 2015, and then to Tamil Nadu.
- The VHP people came to the applicant’s home to search for him in April 2016.
- The applicants travelled from Australia to [Country 2] on 12 November 2016 to see their children.
- The second named applicant’s sister (who cared for the children) had said that there was a risk to their son, and unknown people followed him to school. The applicant stated that his son had a visa, and so attempted to take him back to Australia, but was informed at the airport that the son’s visa was cancelled.
- The applicants now fear for their son’s and daughter’s safety in India as well.
- The applicant said he will seek counselling for his mental state due to his adverse experiences in India.
The applicants were initially represented by their registered migration agent in relation to the review until 15 November 2019 when the applicant informed the Tribunal that the agent was no longer engaged.
In his correspondence of 15 November 2019 the applicant also stated that his wife would not be attending the hearing as she is in India. He provided a marriage certificate for himself and the second applicant, a medical death certificate for his father stating that he died from the combined effect of head injury and occlusive coronary artery disease, a translation of a death certificate for his father (original not provided), a translation of a first information report from the police stating that Mr [A] died when he fell from a [vehicle] and struck his head while on the way to hospital due to severe chest pain (original not provided).
The Tribunal requested that the applicants provide all documents, submissions and evidence upon which they sought to rely to the Tribunal by 15 November 2019. The applicant provided a further copy of the second statement he had already provided to the Tribunal. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 21 November 2019. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. The Tribunal explained that it was not bound to follow anything that the delegate found and it would make up its own mind based on all the information before it. The Tribunal is satisfied that the applicant understood the proceedings and was able to give evidence and present arguments.
The applicant’s evidence
The applicant’s evidence included the following:
·     The application form and statements are all correct except he made some corrections, namely, he corrected the statement where it was stated that they came to attack him in a car, that is incorrect, they came in a [vehicle]. He said that in his statement, he had claimed that his mother and sister went into hiding after the second attack [a reference to them moving to a relative’s house] but it was actually after the first attack. Otherwise everything is true and correct.
·     He said that ever since he has been in Australia his mother, sister and her children (and his sister’s husband when he is back from [Country 1]) reside in the mother’s home (the family home [Location] in Trivandrum).
·     Before marriage he lived in his family home with his mother and sister. From his marriage in 2011 he was living in wife’s family home ([House name 1]). He constructed his own home, [House name 2], over a one year period from mid-2014-mid 2015 at which time it was ready to live in and he lived there sometimes (around two months).
·     The applicant said that the people after him are dangerous; they are BJP and VHP (who are not an official part of the BJP), and they would cause physical harm or kill him.
·     The applicant said that it was his fear that he would be forced to convert. The Tribunal said that his first statement seemed to refer more to the desire for his father to re-convert to Hinduism. The applicant said it is his fear that he will be forced to convert to Hinduism; and the Tribunal notes he did make this claim in his second statement. The Tribunal put to the applicant that Hindu people have had plenty of time throughout his whole life to seek to convert him. He responded that things only started when his father came back (2012). He said it is these specific people who were after his father who want him to convert to Hinduism. The Tribunal noted his evidence that his father had converted to being a Christian when young, and then when he left the applicant’s mother (when the applicant was 7 years old) his father had re-converted to being a Hindu. He said at hearing that some Hindus did not want his father to convert back to Catholicism from being a Hindu; this appeared different to his statement where claimed that the Hindus wanted his father to convert from Catholicism to being a Hindu. The applicant repeated his claim from the hearing (that these Hindus who were after his father did not want his father to convert back to being a Catholic and that is why they were after him).
·     When asked at the end of the questions if there was anything else he had not said, and any other reason he faces harm and he said no, he said that if he goes back he will be in trouble from those specific people, because he is his father’s son and they want him to convert. They will hurt him.

Further relevant evidence is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
Country of reference
The applicant brought his passport to the hearing. The Tribunal is prepared to accept that the applicant is a national of India, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is India.
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal put to the applicant concerns and inconsistencies which it considered undermine his credibility and his claims about his circumstances and fears if he returns to India. The concerns are set out below.
Firstly, the Tribunal had concerns in relation to the events that the applicant said occurred which led to him and his father being attacked and then his father being killed. The concerns, when considered as a whole, led the Tribunal to be concerned that the applicant’s claims may not have been true. The first aspect relates to the timeline of events that the applicant had provided in his statements/evidence which did not seem to make sense, and which it put to the applicant.
He had said that his father returned [in] August 2012; then “some days later” people visited and threatened [so for eg [later in] August]; then after a few weeks there was another warning [eg early September 2012]; then a few weeks later they came to the house and gave a warning that the father shouldn’t live with the family [eg end September 2012]; then a few weeks later there is a warning; then the attack and the applicant and father were hospitalised; [eg end October 2012] then as this was for two weeks they were discharged (say mid-November 2012); then “soon after” the discharge they went out and his father was killed [eg about end November 2012]. The Tribunal noted that this was inconsistent with the documents, which stated that his father died [in] July 2013. The applicant said this is the second time we were attacked. The Tribunal noted that this did not explain the differences; the applicant said that the dates were not precise. The Tribunal, while acknowledging this, remained concerned because this was based on the applicant’s approximate timeline in his statements and evidence. While the Tribunal would, if there were no other concern, be prepared to overlook the difference in the different date of death, the following matters mean that the Tribunal is not prepared to disregard this concern:
· The applicant said that his father died from being attacked. His injuries were being hit in head and the back. He doesn’t know who attacked them because they covered their face; they were shouting ‘kill him’. First they attacked the applicant in his face / leg, then he ran away from them and hid in a forest, and they tried to attack his father. He said that they took his father away in a [vehicle]. After he told the police what happened he told them to catch the culprit and get the father back. They did not listen, they did not take the complaint. When asked if he did an FIR he said no. They did not take his complaint. He did not try again. When asked if an FIR was ever done he said yes, by [Mr C], his father’s daughter’s husband (he doesn’t know his surname). He later changed his evidence to say that the people who had attacked them were the ones who had reported to the police. The Tribunal put to him that it did not seem it make sense that the people who attacked himself and his father would voluntarily attend the police station and say that they were involved in his father’s death and make a report to the police about what had happened, especially as it was the applicant’s claim that the police had no intention of investigating his complaint. Further, the Tribunal noted that the applicant had said that the FIR was lodged by [Mr C], whom he did not claim was part of the people who attacked himself and his father.
· Further, the Tribunal also noted that the FIR and the post-mortem report were somewhat similar in that they noted that the cause of his father’s passing was that he had suffered chest pain and was being taken to hospital in a [vehicle] when he had fallen out (FIR) and death was caused due to the combined effect of head injury and occlusive coronary artery disease (post-mortem report). The Tribunal put to the applicant that these documents did not seem to support his claims that his father had died after having been attacked.
The applicant did not provide any satisfactory explanation for these concerns and agreed that the documents did not support his claims, but instead supported a different cause of death, not related to any attack.
Secondly, the Tribunal was concerned that the applicant provided inconsistent evidence as to where he was living in his application form and in his oral evidence to the Tribunal. In his application form he gave very specific information, in response to the question to provide all addresses where he had been living, including refugee camps, temporary accommodation, with no gaps, as follows:
·     [Date] – January 2011: [Location] House (his family home)
·     February 2011 to 2014: [House name 1] (his wife’s family home)
·     2014 – January 2016: [House name 2].
He initially said to the Tribunal that he did not work for three years because he was in hiding from 2013 to 2016. He then changed his evidence and said that even when he was in hiding he was still working to support his family 2-3 days /week: he was doing [various job tasks]. When asked where he lived when he was in hiding he said that he stayed at a friend’s house in Trivandrum for about 10 months (about 30km away). He went to Alapuzha (his sister’s husband house) for about one year and he went to Chennai for about one year. His wife and children were in hiding with him. He also lived in his home at [House name 2] for two months from about mid-2014.
The Tribunal put to him that his claims to be in hiding were very different to the specific addresses he gave in his application form. It also noted that according to his form he lived much longer in the [House name 2] than what he had claimed to the Tribunal (from 2014 to January 2016 when he came to Australia). It noted that the form asked for all previous addresses including refugee camps, any temporary accommodation, with no gaps, but he made no mention in that form of any place where he was in hiding. He agreed that he did not mention that he was in hiding in his application form; he did not offer a reason for that. The Tribunal considers that if the applicant had spent such a long time in hiding, he would have provided these addresses in his application form. While the Tribunal acknowledges that in his first statement (to the Department), he claimed that he received continual death threats so he moved to “a place in the neighbouring state”, and in his second statement (to the Tribunal) he repeated that, and added that in 2014 he relocated to Alappuzha and Tamil Nadu, the Tribunal remained concerned that when providing his addresses in his application form, he did not state the other addresses which he claimed to the Tribunal to have spent significant periods at in hiding (totalling three years).
A further concern with the claim that he was in hiding for three years arose from his evidence as to his work in 2013. He told the Tribunal that he went to [Country 1] in 2013. When asked for the reason he went, the only reason he gave was that he wanted to get work (he did not claim it was to escape). He said that he lost his job there so he came back. The Tribunal put to him that it did not understand why, if he was in hiding, he would leave his wife and children behind and go [Country 1] for work. He then said that they were only focussing on him; they were not worried about his wife and children. The Tribunal put to him that when he had been asked why he went to [Country 1], he did not say he went there to escape harm; rather he just said it was for work purposes. The applicant did not respond to that concern; he only said that if he gets a job he will be in hiding. The Tribunal considered that if the applicant was living in hiding for fear of being killed, and he had escaped to [Country 1] to save his life, he would have said, when asked, that this was his reason to go to [Country 1].
The Tribunal was more concerned with the applicant’s assertion that the people who wanted to cause harm were focussed on him, not his family. As put to the applicant, his written materials made a number of references to threats to kill both him and his family. In response he said that they were hiding also and if he gets a good job then he can stay in [Country 1]. When the Tribunal put to him however that while he was proposing to stay indefinitely in [Country 1] so that he would be safe, but that he would be leaving his wife and children in India, he then responded that if he gets a good job, he thought he could take them with him. The Tribunal noted that he did not say this when asked; instead he said it was his plan that he would go and stay in [Country 1]; and he had then claimed that he was leaving them behind because they weren’t focusing on his family. The applicant agreed that he had said this and did not offer any other explanation for his changing evidence. The Tribunal considers that if the applicant and his family were genuinely in fear of their lives from these dangerous people, the applicant would not have said that his plan was to go to [Country 1] to work for an for an indefinite period of time, thus leaving his family to fend for themselves in hiding. The Tribunal considers that his stated intention to go and stay long term in [Country 1], leaving his family behind, undermines his claimed fear of harm and threats made in India.
Thirdly, the Tribunal had concerns about the lack of claimed interest in the applicant since he had left for Australia.
The applicant said he believed that he would suffer harm if he went back because even while he is here they are enquiring about him. However when the Tribunal asked for further details, it appeared that only two enquiries had been made about him since he was in Australia in 2016: they were following his son (and nothing happened) and they came to his mother’s house but no one was at home, his friend was near the house and the friend said to them that he didn’t know anything about the applicant. The applicant said that no one knows where he is. The Tribunal noted that these two minimal enquiries about his whereabouts appear inconsistent with his claims in his written materials that the VHP and BJP are very powerful all over India, he can’t relocate anywhere in all of India because they will find him, they are brutal and dangerous and they have been wanting to find him for six years. The Tribunal said that it was difficult to accept that in the whole time he had been gone they had only made two efforts to find him. The applicant said that he did not have anything else to say in this regard.
The Tribunal was concerned with the claim that there was a strong, continuous and continuing desire to find and harm/kill the applicant because there were obvious people who could have been interrogated/ threatened to disclose the applicant’s whereabouts, namely his mother and sister, his children remained behind the whole time, and his wife who returned to India from Australia and according to his evidence lived at her parents’ place, not in hiding. The Tribunal suggested that there were many efforts that could have been made to actually find him if they had wanted to. The applicant did not offer a response to this; instead he said that they did not know he was out of India and they will hurt him when he gets back. He repeated that they did not know he was out of India. The applicant then changed evidence. After he initially confirmed that no one knows where he is the Tribunal repeated that it was his evidence that his wife and children are living in the ([House name 1]) home and despite the opportunity to go to the home and ask where he is, no one has done this, he then changed his evidence and said that they know that he is out of the country. When the Tribunal put to him that he had just changed his evidence, he then said that they must know he was out of the country because when they had looked for him they couldn’t find him. The Tribunal did not find the applicant’s explanations or changing evidence to be satisfactory.
The applicant’s claim that he was of such interest to them such that he had to remain in hiding for three years and had to escape to Australia, and that they are so powerful that they can find him no matter where he is, was also of concern given his claims about what happened when he was in hiding for three years. The Tribunal noted that in his statement he said that on one occasion when he was in India they had managed to find him but he moved. The applicant then said it was two occasions that they found him when he was in hiding: once in Trivandrum and Chennai and elsewhere. The Tribunal put to the applicant that according to his evidence, during the period he was in hiding, he built a house over a one year period and he then lived in that house for two months. The Tribunal put to him that this would have been an obvious place for him to be found by the people who were after him. In response he said that he didn’t go out at all during that time that he was living in his house. The Tribunal found it difficult to accept that the applicant was prepared to, and that he was able to, hide in his own house for two months without detection given the claims of the lengths these people are prepared to go to get the applicant (including search in neighbouring states). In this regard, the applicant said that one of their aims was to get the applicant to convert. The Tribunal put to him that if they wanted to force the applicant to convert to Hinduism, they had from August 2012 (when they came to his house) to February 2016 to make this happen. If they were present all over India and could find him no matter where he went, then it did not understand why these very determined and brutal people did not do what they wanted: for example they could have kidnapped his wife and children to force him to convert, they could have done anything to force him to convert but they did not do so. He agreed that they did not. The Tribunal did not consider the applicant’s explanations to be satisfactory.
The Tribunal remained concerned with the claim that the applicant’s family members had been threatened with death since 2012 if the father did not go back to Hinduism and if the applicant did not convert, and that their desire to kill remained strong after all these years. This was a further reason for concern about the lack of contact with the applicant’s family members to search out the applicant. It was the applicant’s claim that since the applicant (and his wife) had left India [in] February 2016. He said that the children were in a convent for two months in 2016 and apart from that they were in [House name 1]. His wife chose to return to India firstly in 2018 for one month and she stayed in [House name 1]. When she again returned ([in] October 2018; and she has not since returned to Australia) she and the children resided in [House name 1]. The children (aged [ages]) attend school. The Tribunal considered that they could have easily been found at [House name 1], and been subjected to adverse attention of the people who sought to cause harm. The Tribunal noted that nothing had happened to his wife or children in that time and he agreed. Concerning his son, he said that in November 2017 his son had been followed a few times when he was on his way to school in the school bus; he said that the reason was to find out if the applicant was in India. When asked how he knew about this he said that the driver told them that someone was following their son. This only happened a few times however; his son continued catching the bus and nothing else happened. The Tribunal put to the applicant that it was difficult to accept that if there were dangerous people after him, and they are prepared to harm or kill, his son had been followed, yet they let his son continue to catch the bus. The applicant then changed his evidence to say his wife then took him to school; when the Tribunal noted that he had not said that when asked, he had said that his child kept catching the bus, he said “ok”. The Tribunal was concerned that the applicant was prepared to change his evidence, and it did not find his evidence and explanations to be satisfactory.
Fourthly, the Tribunal was concerned that the applicant gave evidence which was inconsistent with the fact that his children had been residing at [House name 1]. In this regard when the Tribunal asked the applicant what was the reason why he feared they will hurt him, and he said that he is the only son in the whole family and that is why they will hurt him. The grandfather (his father) has gone and there is only the applicant. He is the only male child to keep the generation going so they want to kill him. There are no other males. The Tribunal put to him however that this was not correct, there was his son whom he had let behind; they could easily have taken his son and the applicant has not been hiding his son; he has been allowed to catch a bus by himself to and from school. The Tribunal said that if it was “the son” who was important and targeted by these people then it would think that he wouldn’t have left his son unprotected. The Tribunal asked the applicant if he wanted to comment on this and he said “no idea”. The Tribunal did not find this to be a satisfactory explanation. The Tribunal considered that if his evidence were true, he would not have left his son in India unprotected and easily found.
Finally, the Tribunal was concerned that the applicant’s explanations about his plans in coming to Australia to escape the people who wanted to harm him. It noted his claim that he had been trying to leave India for some time. The Tribunal asked whether it was his plan when he was about to come to Australia to claim protection immediately, given that he had been trying to leave India for a long time. He indicated that there was no plan. The Tribunal said it did not make sense that if he was going to have to borrow money and sell his gold and come to Australia, he would not have first made sure that he would be allowed to stay, and not have to return within a short period, which would be a waste of his funds and resources (and mean that he remained in danger). The Tribunal said that it would think he would have had a plan or made enquiries before coming to Australia to ensure that he could remain safely in Australia. The applicant responded that he didn’t know about protection or if he would be sent back or anything about coming to Australia, he knew nothing and made no enquiries. The Tribunal is not prepared to accept that, before spending all his money and borrowing money to get to Australia, he made no enquiries first whether he would be able to seek to stay in Australia.

On the basis of the above, the Tribunal is not prepared to accept that the applicant is a witness of truth in matters relevant to why he remained in Australia and why he claimed to fear harm upon return.
Other matters
Although he claimed in his 2016 statement to the Tribunal that he intended to seek counselling in Australia about his adverse experiences in India, there was no evidence of this provided to the Tribunal nor did the applicant raise this at all when the Tribunal asked whether there was anything else that he had not told the Tribunal. He made no claims to the Tribunal related to mental health about returning. The Tribunal is not prepared to accept the applicant’s assertion that he wanted to seek counselling due to adverse experiences in India as claimed.
The Tribunal considered the documents provided by the applicant including the obituary from the newspaper that the applicant had provided at hearing; when the Tribunal asked what it said, the applicant said his father’s name was mentioned in a list of obituaries and it just referred to his name and relative details. As discussed at hearing, the official documents support that his father passed away from a cause different to that claimed by the applicant. While the Tribunal is prepared to accept that the applicant’s father passed away as described in the post mortem and the police report (which said that the father had fallen out of the [vehicle] while he was on his away to hospital), it does not consider that the documents on their face are corroborative evidence of the applicant’s claims.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth when claiming to hold fears, and concerning his character and past harm, upon which he has based his protection claims.
Findings on the applicant’s claims
Concerns put to the applicant
At the end of the hearing the Tribunal said to the applicant that it had not made up its mind, but it was concerned that the claims he had made were not credible regarding adverse attention in India, his father being targeted, his father’ s conversions and the claim that people wanted the applicant to convert (and thus all the claims flowing from these matters). The Tribunal said that it was not sure it accepted that there had been problems India nor that he will have problems when he returns. In response the applicant said that he had nothing to say. The Tribunal considers that if the applicant’s claims were true and he genuinely considered that he feared harm in India, he would not have said that he had nothing to say in response to the Tribunal’s concerns.
Matters accepted
The Tribunal is prepared to accept that the applicant is a well-educated man who completed his Bachelor Degree in India, thereafter went to [Country 1] to work and then returned to marry his wife. It accepts that he and his wife have two children ([Names]) and that he built a house ([House name 2]) for his family to live in using funds that he accumulated while working in [Country 1]. It accepts that his family home is the [Location] house and that his mother and sister and his sister’s husband are living there (when he is not in [Country 1]). It accepts that the wife’s family home is the [House name 1], and that he and his wife left the children in India with his wife’s parents, and that the wife went back to see the children in 2018 and stayed for one month in [House name 1], and that she returned again to India [in] October 2018 and has not come back to Australia. It accepts that she is residing there with the two children. It accepts that they are Christians.
The Tribunal wrote to the applicants on 6 November 2019 pursuant to section 424A of the Act noting information that the second applicant had not been in Australia since [October] 2019, and that if the Tribunal relied upon this information, then, having regard to s.36 (2) of the Act, which requires an applicant for a protection visa to be a non-citizen in Australia, the application for review would have to be affirmed in relation to the second applicant because she is not in Australia. Any comment and/or response was due on 20 November 2019. The second applicant did not respond to that email, but the applicant wrote to the Tribunal on 15 November 2019 stating that he was aware that his wife could not be granted a protection visa as she was not in the country. The Tribunal raised this again at the hearing and the applicant said that he understood this. The Tribunal accepts that the second applicant is not in Australia and it finds that she does not satisfy s.36 (2) of the Act, and thus it affirms the decision under review in respect of the second applicant.
Other accepted matters are referred to below.
Matters of concern
Although it has doubts with the applicant’s credibility, the Tribunal has considered the Baptism certificate for the applicant’s father and it is prepared to accept that the applicant’s father had converted many years ago to Christianity. It is prepared to accept that he left the applicant’s family and reconverted to Hinduism. The Tribunal notes that the death certificate is in the name [Mr A] which the applicant said was his father’s Hindu name. It is prepared to accept that his father died from the matters set out in the post mortem and police report. The Tribunal accepts that the death of his father caused distress to the applicant.
However, the Tribunal is not prepared to accept the balance of the applicant’s claims namely that the applicant’s father, the applicant and his family were targeted nor that they were attacked nor that there were threats to convert or be killed. It does not accept that the applicant’s father was killed in the manner claimed. The Tribunal does not accept that there was any adverse interest in the applicant nor that he relocated within India nor that there was any adverse interest in him when he came to Australia (or since he has been here) nor does it accept that he had any genuine fear when he came to Australia. The Tribunal is not prepared to accept these claims or any claims flowing from these claims, on the basis of the adverse credibility finding. The Tribunal does not accept that the applicant has had any genuine concern that he or his family were or are or will be in danger.
On the basis of the adverse credibility finding the Tribunal is not prepared to accept that the applicant, his father or his family have faced adverse attention or harm in India as claimed. It does not accept that his father, himself or his family were targeted or threatened by or harmed by or had a genuine fear of Hindus or members of VHP or RSS/BJP.
The applicant claimed that the problems only occurred because of his father; the Tribunal has not accepted that any problems arose because of his father. The Tribunal thus finds that the applicant did not face any problems while he was in India (on the basis of religion or for any other reason).
Return to India
The Tribunal does not accept that because of his claimed circumstances, the applicant fears that he will be attacked or killed by VHP or RSS/BJP (whom he claims have immunity and impunity as their party is the ruling party in India), noting that it does not accept his claimed circumstances (except that he is a Christian and that his father was a converted Hindu who abandoned his Christianity and then reconverted to being a Hindu).
The Tribunal noted the written assertion that VHP has been involved in mass violence against Christians; that he fears harm due to his religion at the hands of VHP; that they are present throughout India, and he therefore cannot relocate; that the VHP have wanted India as a Hindu country and thus it is not safe for Christians. The Tribunal put to the applicant that it was required to have regard to the DFAT Report which it has in relation to country conditions in India. The applicants did not produce any independent country information (although the applicants were represented by an agent until after they had made submissions to the Tribunal)
The Tribunal read out to the applicant extracts from the DFAT Report[7] and it noted that although Christians are a minority in India, the country information does not support the assertion that they are not safe from violence anywhere in India. DFAT assesses that most Christians live day-to-day without societal discrimination or violence. The Tribunal notes he made no claim that he proselytised or had any desire or intention to do so.
[7] See Annexure B
The Tribunal noted that he has not made any suggestion that as Christians, his wife, children and his mother are facing any harm (other than his specific claims which the Tribunal has not accepted); the Tribunal put to the applicant that it did not seem to the Tribunal on the evidence before it that if he returns to Kerala he faces a real chance of serious harm or a real risk of significant harm as a Christian either from VHP or RSS/BJP, or Hindus generally.
The Tribunal noted that it was his claim that the sons are important, yet there were no steps being taken to protect or hide his son. The Tribunal does not accept that the applicant has a genuine fear that the males in his family (including the applicant himself) face a real chance of serious harm or a real risk of significant form for reasons of religion including forced conversion or as the son of a Hindu who had converted to Christianity and back to Hinduism again. The Tribunal notes that DFAT assesses that treatment of people of mixed religion marriages varies according to the families involved. The Tribunal does not accept that there were difficulties as claimed between the father’s and mother’s families. It is not satisfied on the evidence before it that the applicant, as the son of an inter-religious marriage of his parents, or as one of approximately 65 million Christians in India, faces a real chance or a real risk of forced conversion or other serious or significant harm.
The applicant stated that he fears that the police are unwilling to assist him, however the Tribunal is not satisfied that the applicant faces a real chance or real risk of requiring access to state protection.
The Tribunal discussed the financial position of his family at hearing. The Tribunal noted that he had said in his application form that he had completed his degree but in his second statement he said that he had been forced to discontinue his studies for financial reasons. The applicant said that he had completed his Bachelor of [Subject] in 2004 after four years study and the he applied for Master’s degree but there was no money for that. He managed to afford his Bachelor Degree because he worked and he got financial help from his mother’s brother. He confirmed that he had a lot of work experience: he started doing casual work in year 10, such as [job tasks], during his studies. After finishing his studies he continued to do casual work and then he went overseas he worked [in] a shop in [Country 1]. When he came back to India he drove a [vehicle] (which he sold for $600 to pay for the baptism of child). He then worked in [work sectors]. In Australia, he has also worked; for the last three years he has been employed as [an occupation].
The Tribunal put to the applicant that he was highly educated in [subject], and that he has international work experience. It noted that DFAT[8] assessed that males had a higher workforce participation and it also noted that although the official unemployment rate is 3.4 percent, which might not reflect the full picture in India, the Tribunal does not accept his claim that he was forced to go to [Country 1] for work, and it is not satisfied that he will not be able to find some work in India nor that he faces a real chance of serious harm or a real risk of significant harm in India for financial or economic reasons. The Tribunal also notes the claim in the applicant’s second statement that he has a valuable house in India, a good education and work experience.
[8] See Annexure B
The Tribunal is not satisfied that when the applicant came to Australia he was escaping any harm or adverse interest in India nor does it accept that he stayed in Australia due to a fear of harm in India. It notes that his wife was prepared to return to India and did so. The Tribunal is not satisfied that the applicant faces a real chance or real risk of serious or significant harm for any reason.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant or his family have experienced any adverse interest or harm or attention in India. It has found that he made up his protection claims. The Tribunal does not accept that there is any reason for him to face a real risk of adverse attention or harm amounting to significant harm (as discussed in the Annexure A). It considers that he will continue to live with his Christian family, be a practicing Christian, and will work again. On the evidence before it the Tribunal is not satisfied that the applicant, as a Christian or a son of a deceased Hindu father who converted to Christianity when he married the applicant’s mother and then converted back to Hinduism later, faces a real risk of significant harm for reasons of his religion including forced conversion or any other harm as a Christian. Having considered his claims and circumstances on a cumulative basis it is not satisfied that he faces a real risk of significant harm for any reason.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the first named applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the first named applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the first named 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 first named applicant does not satisfy the criteria in s.36(2).
The Tribunal accepts that the second applicant is not in Australia and it finds that she does not satisfy s.36 (2) of the Act, and thus it affirms the decision under review in respect of the second applicant.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Christine Cody
Member

ANNEXURE A - CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted below.
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 below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…
ANNEXURE B – DFAT REPORT –REFERENCES INCLUDE:

Religion

Section 15 of the Constitution prohibits discrimination against any citizen on the grounds of religion. Section 25 guarantees the right to freely profess, practise and propagate religion, and section 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. Federal law provides minority community status to six religious groups: Muslims, Sikhs, Christians, Parsis, Jains and Buddhists. State governments can grant minority status to religious groups that are minorities in a particular region.

According to the 2011 census, 79.8 per cent of Indians are Hindu, 14.2 per cent are Muslim, 2.3 per cent are Christian and 1.7 per cent are Sikh. Two per cent of Indians adhere to another religion including Buddhists, Jains, Zoroastrians, Jews, Baha’i and tribal religions.

Anti-conversion laws exist in Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha, Rajasthan and Uttarakhand. Six of these states enforce the laws; there is no implementing legislation for the anti-conversion law in Arunachal Pradesh, Rajasthan and Jharkhand. The laws prohibit conversion based on force, allurement, inducement or fraud, but sources report that there are instances where the laws have applied to Muslims and Christians engaged in proselytization. [9]

[9] DFAT, Country Information Report – India, 17 October 2018, p. 13, paras [3.4] - [3.6].

…

Christians

Christians constitute approximately 2.3 per cent of the population. The largest Christian denominations today are Roman Catholics, Syro-Malabar Catholics, Malankara Orthodox Syrians and various Protestant denominations. Christianity is the majority religion in the north-eastern states of Mizoram, Nagaland and Meghalaya, and has a strong presence in the southern states of Goa, Kerala and Tamil Nadu.

A rise in Hindu nationalism has coincided with increasing incidents of violence and discrimination against Christians. Christians have increasingly faced poorly founded legal proceedings and police reports, difficulties for churches and NGOs dealing with local government authorities, public statements by prominent officials denigrating Christians, and threats or acts of violence. In July 2017, attackers publicly murdered a Christian pastor in Punjab, allegedly for attempting to convert others.

Authorities have disbanded or de-registered Christian charities and NGOs as part of a continuing trend limiting NGO activity. One of India’s largest Christian charities, the United States-based Compassion International, shut down after 48 years of operating in India when the government banned foreign donations to the organisation. The government claimed the charity, which operates child sponsorship programmes out of local Indian churches, was using its charity status to convert children to Christianity.

On 2 August 2017, the Supreme Court asked the Odisha government to reinvestigate 315 cases pertaining to anti-Christian violence in 2008 in Kandhamal District. The 315 cases, from a total of 827 registered cases, had been closed on grounds of insufficient evidence against the accused. Charges were filed in the other 512 cases. Completed trials in 362 cases, resulted in 78 convictions. The Supreme Court also directed the state government to pay compensation for injury and property loss or damage.

DFAT assesses that most Christians live day-to-day without societal discrimination or violence. Christians engaged in proselytising, or perceived to be proselytising, particularly to Hindus, face a moderate risk of official and societal discrimination, and a moderate risk of societal violence.[10]

[10] DFAT, Country Information Report – India, 17 October 2018, pp. 14 – 15, paras [3.11] - [3.15].

Employment

2.24 According to the International Labour Organisation, approximately 66 per cent of the population is of legal working age (15 to 64 years). The labour force participation rate was 53.8 per cent as at 2017. The participation rate for men is more than 50 percentage points higher than for women, whose participation rate is approximately 27 per cent and falling. The total unemployment rate is 3.4 per cent, and the youth unemployment rate is 9.5 per cent for men and women. Much of India’s labour market is not organised and these figures may not accurately reflect the rates of unemployment.

2.25 The vast majority of working people are employed in the informal sector. Individuals in this sector experience low job and income security, as well as lower coverage by social protection systems and employment regulation. Over time, workers have been shifting out of the agriculture sector and into the services and manufacturing sectors.

Marriage (inter-faith, inter-caste)

India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal. India has no centralised system for marriage registration. Some states require marriages to be registered by law. Couples may seek to marry under one of India’s personal religious laws, which have been codified according to the requirements of different religions. The Special Marriage Act (1954) is an alternative to each of the various religious personal laws. The Act is available to all citizens who choose to marry outside their faith, and the religion of the parties to an intended marriage is immaterial under the Act.

Arranged marriages continue to account for the overwhelming majority of marriages across India. Parents or other family members often assume sole responsibility for deciding whom their children marry, particularly in northern India. Many parents consider arranging a marriage for their children a right and a duty, and may not accept their son or daughter choosing their own spouse. Women face social pressure to marry by their mid-20s and men by their mid-30s. Around one in 1,000 marriages in India ends in divorce, compared with around one in three in Australia, although rates are increasing.

Hindu nationalists have increasingly used the term ‘love jihad’ to allege Muslim extremist groups are leading an organised campaign to coerce Hindu women to marry Muslim men and convert to Islam. Activists and politicians, have used traditional and social media to propagate this idea, to threaten and warn Muslims away from marriage to Hindu women and to incite Hindu men to violence against Muslim men. DFAT has found no evidence of Muslim men coercing Hindu women into marriage for the purposes of proselytisation.

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. [11]

[11] DFAT, Country Information Report – India, 17 October 2018, pp. 18 – 19, paras [3.42] - [3.46].

[2019] AATA 5747

20 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction