1615365 (Refugee)

1615365 (Refugee) [2017] AATA 370 (14 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615365
COUNTRY OF REFERENCE:                  India
MEMBER:Saxon Rice
DATE:14 February 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 February 2017 at 4:25pm
CATCHWORDS
Refugee – Protection visa – India – Religion – Christian – Conversion from Islam – Social group – Inter-religious marriage – Fear of harm from family member – Relocation possible
LEGISLATION
Migration Act 1958
, ss 5, 36, 65, 499

Migration Regulations 1994
, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas [in] March 2016. The delegate refused to grant the visas on the basis that he was not satisfied, on the evidence provided, that the applicants face a real chance of persecution or that there is a real risk the applicants will suffer significant harm if they return to India.
This is therefore, an application for a review of that decision.
The applicants were given an opportunity to appear before the Tribunal on 3 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. The applicants are not represented in this matter.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 themself 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 in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Background
When lodging the application to the Department, applicant 1 stated that he was born in [Kerala]. He stated on the application form that he speaks, reads and writes Malayalam and English and reads and writes Hindi. He indicated that his religion was Christian Catholic and he identifies as ethnic Malayali.
Applicant 1 stated that he completed a [course] in 2009 and a [further course] in 2008, following his completion of high school in 2006. From February 2010 until May 2013, the applicant was employed in India as [occupation] for supplying [certain] products and since his arrival in Australia in February 2014 he has been consistently employed as [occupation] in [Australia].
When lodging the application to the Department, applicant 2 stated that she was born in [Kerala]. She stated on the application form that she speaks, reads and writes Malayalam and English. She indicated that her religion was Christian Catholic and she identifies as ethnic Malayali.
Applicant 2 stated that she also completed [courses] in 2009 and [another course] in 2008, following her completion of high school in [year]. From December 2009 until March 2013, the applicant was employed in India as [occupation] in [a certain] industry and since her arrival in Australia in February 2014, she has not worked.
Applicants 1 and 2 hold Indian passports issued in 2009 and 2012 respectively. According to details provided in their protection visa applications, they first arrived in Australia [in] February 2014 on a dependent (student) visa and student visa and neither has previously travelled to any other countries. Applicant 3 was born in Australia on [date]. He is the holder of an Indian passport issued in 2016.
Claims
Each applicant’s protection visa application referred to a singular attached statement in relation to the claims being made. The statement was titled ‘Statement of [Applicant 1]’ which the Tribunal understands contains the claims relevant to all applicants.
Below is a summary of the claims contained in that statement and summarised in the delegate’s decision record which the applicants provided to the Tribunal:
·The applicants claim that applicant 1 is a Christian and he promoted the faith in India. They claim that applicant 2 was formally a Muslim and she has converted to Christianity. The couple were married in April 2012.
·The applicants claim that the family of applicant 2 are strict Muslims and they (along with other strict Muslims from their mosque) have vowed to kill both adult applicants as well as the child applicant (applicant 3).
·The claim that since their arrival in Australia, Muslim terrorists in the area where they live have taken up the matter and they have undertaken to kill them in order to punish them and set an example to the rest of the community.
The applicants claim that the threat to kill applicant 2 is because she converted from Islam to Christianity and because she married a non-Muslim. The threat to kill applicant 1 is because he influenced applicant 2 to convert to Christianity and applicant 3 is considered to be ‘son of devil’.
The applicants claim that they initially registered their marriage [in] April 2012 although applicant 2 was not baptised until [date] November 2012. The applicants claim they were then married at applicant 1’s church in the presence of his parents and relatives [in] November 2012.
The applicants claim a group of people attacked their house and they have ‘had to stay in a lot of different places moving from one place to another’ before a priest recommended they go to Australia on a student visa.
Evidence
The evidence before the Tribunal includes the following relevant material:
·The completed protection visa forms, lodged [in] March 2016, which includes the applicants’ combined written statement for claiming protection.
·A photocopy of the applicants’ Indian passports.
·The delegate’s protection visa assessment record (‘delegate’s decision record’) [in] September 2016.
·The applicant’s online application for review on 21 September 2016, which included a copy of the delegate’s decision record.
·The applicants gave oral evidence at a Tribunal hearing on 3 February 2017, including evidence from witnesses.
·Additional statement and evidence provided by the applicant 1 at the Tribunal hearing on 3 February 2017.
The Tribunal notes that the applicants’ departmental file includes a certificate and notification regarding the disclosure of certain information under s. 438 of the Migration Act 1958. The reason given for why disclosure of the information subject to the certificate would be contrary to the public interest is that the folios contain information relating to ‘an internal working document and business affairs’.
The folios concerned contain purely administrative [material].
The Tribunal gave consideration to the validity of the certificate and on the basis that a public interest reason has not been identified for the relevant folios, finds the certificate invalid. The folios have not been considered relevant to this review because they are purely administrative. As such, at the Tribunal hearing, the Tribunal advised the applicants of the existence of the certificate and its finding to be invalid.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicants claim and the Tribunal is satisfied on the basis of the personal details provided, that they are Indian nationals. India is therefore the receiving country for the purpose of assessing the applicants’ claim for protection.
Tribunal hearing
At the Tribunal hearing, the Tribunal took evidence from applicant 1 and applicant 2. The Tribunal notes that the third named applicant (applicant 3), who is approximately [age], accompanied the other applicants to the hearing, but for obvious reasons was not questioned by the Tribunal.
Applicant 1 confirmed that the statement provided with the protection visa application is a still an accurate reflection of their claims. Applicant 2 agreed. Applicant 1 also noted that he had provided an additional statement at the beginning of the Tribunal hearing and this statement was also relevant.
Applicant 1 told the Tribunal that he had grown up in a strict Christian household and applicant 2 said she grew up in a strict Muslim household. Applicant 2 also said some of her family members had Committee positions in the local community at the Mosque. She said her practice of Islam included praying five times a day, fasting and covering herself with a veil if she was in public. The Tribunal noted that the applicants grew up very close to other and applicant 1 said a river divided where they lived and on one side was Christian and the other, Muslim. Applicant 1 said where he grew up, it was mostly Christian and some Muslims and Hindus. Applicant 2 said that where she grew up was predominately Muslim but there was some Christians and 1-2 Hindu households.
Applicant 1 told the Tribunal they met in 2006 and registered their marriage in April 2012. He said that applicant 2 was baptised in November 2012 before the couple held a church wedding. Applicant 2 said that after they registered their marriage, each applicant was still living in their family home but she began getting marriage proposals so they had to tell their families about the marriage registration. Applicant 2 told the Tribunal that she then converted to Christianity and her conversion was voluntary. Applicant 2 said that in a place like Kerala, it was very hard for them and they were scared of people from other religions. The Tribunal noted country information on Kerala that states that:
Kerala is frequently represented in the media as one of India’s most peaceful and tolerant states in terms of the relations between resident Hindu, Muslim and Christian communities. In October 2008, for example, the Indian social activist Aruna Roy argued that Kerala, with “almost equal numbers of Hindus, Christians and Muslims” was home to a “visible pluralism” which, in the context of the violence which then affected Orissa state, should serve as a model for the rest of India. In 2003 a visiting cultural studies scholar from New Zealand, Dr Peter Raine, found that … “very few serious conflicts occur owing to religions differences”.
The Tribunal asked the applicants if they would like to comment on that assessment of Kerala. Applicant 2 said that she didn’t think it could be said like that because the media doesn’t know what happens. She said there were lots of incidents in Kerala between Christians and Muslims and lots were killed. Applicant 1 agreed.
The Tribunal also noted that the applicants appeared to have been in a relationship from 2006-2012 and they had not had any problems. Applicant 2 said that from 2006-2009, their families did not know about the relationship so there were no problems then. She said that after 2009, they didn’t have time to meet so they did courses together such as in [course] so their parents didn’t know and this is how they saw each other.
The Tribunal asked the applicants what they fear in returning to India. Applicant 1 said that his wife’s community people are scared because he married a Muslim and this is shocking to them because they are the role models for the next generation. He said that they still want to get rid of them because they are doing well and they don’t want that to happen. Applicant 2 agreed and said that people in her family were creating problems because it was a big shame for them and they are telling people that people high in the committees at the mosque supported them so they want to kill them to prove that they didn’t support the relationship. Applicant 2 said that the people against them have the support of the political parties in Kerala so they can murder or do anything to them.
Applicant 2 also stated that her [Relative 1] was one of the people in a political party and also a worker at the mosque. She said that her [Relative 1] has witnessed many other murders in connection with many other political parties. Applicant 1 said that his family was [occupation] family and not involved in political parties but he was sure that they would plan an accident or murder and will not leave any evidence with the support of political parties.
The Tribunal asked the applicants about the threat to kill them and their [child]. Applicant 2 said she was getting marriage proposals for a Muslim wedding and had to tell her mother that she could not be married. She said that she and applicant 1 arranged her conversion to Christianity and their church wedding but told her family that she had gone away for work. She said that one day, one of her [family members] saw the applicants in the street and they thought someone had informed on them. When they went home to applicant 1’s family house, it was bad, her [Relative 1] had been there, destroyed lots of things and threatened and pushed applicant 1’s parents. Applicant 2 said they did not report this attack and the threats to Police because the attackers had told them that if they made a Police complaint there would be consequences.
The Tribunal asked the applicants about the Muslim terrorist group they claim have taken up their case. Applicant 2 said that the group did not have a name, they were referred to as the ‘terrorist group’ and it was her [Relative 1] and people from the mosque who are recruited to do murders. They are associated with Congress Party. Applicant 2 claimed her [Relative 1] had also previously assaulted and stabbed a non-Muslim boy that commented about her in the street.
Applicant 2 said that after the attack on applicant 1’s family house and the threats, they stayed in different places. She said that ‘they’ could not find them but the applicants were aware they were being searched for in order to be killed.
The Tribunal noted that in the statement and submission provided at the hearing, the applicants claim another threat was made in 2016 and asked them about this threat. Applicant 1 said that over the last 3 years, there had been many emergency situations in India and the wedding of his [sister] but they have not gone to India because of the threat. Applicant 1 said his brother was attacked by applicant 2’s family in October 2016. He was hit very badly and had to go to hospital and the attackers threatened to kill everyone in the family because they were expecting the applicants to return to India for the wedding. He said his brother was also threatened not to report the attack to Police.
The Tribunal asked the applicants why the group at the mosque would still be so concerned with them given it was now nearly three years since they left India. Applicant 1 said that they were trying to prove that even after all this time, they will still kill them to prove that the families did not support the relationship. Applicant 2 agreed.
The Tribunal asked the applicants why, given the threat to their lives and given the period they had spent moving around before coming to Australia, it took them almost 2 years since their arrival in Australia to apply for a protection visa and noted that delays in applying for protection visas can cause the Tribunal to doubt the credibility of the claims being made. Applicant 1 said they were advised to go to Australia and study and when they had finished their study then things may have changed when they return to India. Applicant 2 agreed.
The Tribunal asked the applicants why, if the situation was as they described, they would think they could return to India. Applicant 2 said she thought that her brother might sympathise and because her mother was still in India. Applicant 1 said they did have a plan to go back but they had an unexpected pregnancy and they got information from the mother of applicant 2 that things were still bad. The Tribunal noted its difficulty in their evidence that they thought things might change if the situation was as they described.
The Tribunal spent some time providing the applicants with a summary of the independent country information relating to relocation set out at Attachment 2.
The Tribunal put to the applicants that they can both speak, read and write English and Malayalam and applicant 1 can also read and write Hindi. They both have considerable education qualifications and work histories and appeared to be fit and able-bodied. The Tribunal noted that unemployment was low in India, there was freedom of internal movement and it did not appear they would have any difficulty in supporting themselves if they relocated. The Tribunal also put to the applicants that it appeared they would have no difficulty in relocating because they were Christian given there were millions of Christians in India and that DFAT’s assessment was that while there were incidents of violence, these represent a moderate risk of social discrimination and violence, although generally speaking most Christians can go about their lives without incident. In relation to applicant 2 having voluntarily converted from Islam to Christianity, country information suggests that conversions from Islam have led to occurrences of harm in India, however the occurrences of harm are sporadic and infrequent and the reports do not suggest that people being seriously harmed for reason of apostasy from Islam is common place in India.

Applicant 2 said they had tried to stay in different places before but when they were in Chhattisgarh, her mother informed them that her [Relative 1] had found them and they would be going there soon because they have political connections in all parts of India.
The Tribunal asked the applicants why they moved from Chhattisgarh back to Kerala and closer to the harm if they had just received that information. Applicant 1 said that when they contacted people, they came to know where they were living. Applicant 2 said that lots of things like this happen in North India but when they were living in North India, they couldn’t speak the language and they didn’t know anyone there so it was hard for them to live. Applicant 1 said that when they went back to Kerala, they were in hiding.
The Tribunal discussed country information with the applicants that suggests that the lack of any centralised registration system in India means that police are unable to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories and that the possibility of the police, or any person or body being able to locate, at the behest of an individual’s family, a person who had fled to another state or territory in India, was remote. Applicant 1 said that he understood but when they started living the situation it is different to research and hard to live. Applicant 2 said that apart from the government and Police, where they are living is an important part of their life. Applicant 2 also said that in India, neighbours want to interfere, they know everything so they can identify you. She also referred to an instance of an attack in relation to an inter-caste marriage but nothing was done. The Tribunal clarified that no claims were being made in relation to inter-caste marriage.
In relation to Christians living in India, applicant 2 said that all the reports and speeches was not what was happening in practice. Applicant 1 said that people get killed for eating beef. Applicant 2 also said that every human being in India can have a problem, especially like her husband and his family that have no political involvement because there are a lot of mishaps going on in India.
Applicant 1 said that of the thousands of things happening, only one or two come out to the media. They are very scared about their life, they might not do anything but they fear for their lives. Applicant 2 also said that India’s constitution says a lot of things but this can all be overlooked so they were really scared. They didn’t know how to live in India, they had to think of their child’s future and if they had been in India, their [child] would have been discriminated against because of [the] parents.
The Tribunal asked applicant 2 about her education history and noted that her protection visa application states that she completed year [grade] at [a] school and asked if this was a Catholic school. She said that it was not a Catholic school but it was originally Christian and now the only thing Christian was its name. The Tribunal noted that the applicant said she was a strict Muslim and asked why she would go to this school. Applicant 2 said that the school was set up when the Christian missionaries came to India but all the local children went there and when she studied there it had Muslim teachers only.
The Tribunal also noted that both the applicants claim to have finished year [grade] and year [grade] at school in the same years, [year] and [year] respectively but they had told the Tribunal they were two years apart in age and asked how they finished school in the same year. Applicant 1 said he went to a different school and he had to ‘start again’ so he finished later. He also said that when he finished at one school and started at another school he lost two years.
The Tribunal noted that the copy of the applicant 1’s baptism certificates and their marriage certificate that they had provided as part of their protection visa application were dated with the same issue date in November 2016 and that while they were both from the same place, they had different seals on them which listed different postcodes for the same location – [postcode] and [postcode]. The Tribunal the applicants if they can explain those anomalies. Applicant 2 said that they didn’t have these documents and had to get a copy for their protection visa applications and they were just issued on the same date. Applicant 1 stated that the differences in the postcodes may be because they came from a different place. The Tribunal noted that both documents claim to be from the same place. The Tribunal also outlined country information from DFAT in relation to document fraud in India and asked the applicants if the documents were genuine. Applicant 2 said the documents were genuine. Applicant 1 agreed.
The Tribunal took evidence from the [family member] of applicant 1, [Mr A], who was in India. [Mr A] told the Tribunal that there was too much going on and people were trying to hurt and attack them. He said [Applicant 1] and his wife did not come for their [sibling]’s wedding and [Mr A] said he was told he had to inform ‘them’ when they come back to India. The Tribunal asked [Mr A] about the attack on him that the applicants had claimed related to their not being in India. [Mr A] said he was attacked when he was going to work, there were [number] attackers and they pushed him down and stomped on him. He said the attack happened around [distance]km from his home in [Town 1], they were wearing helmets and he thought they were involved in political groups. [Mr A] also said the attackers were asking about the applicants. [Mr A] said that if the applicants come to India it will be a problem for them but if they don’t come, it will be a problem for him too. The Tribunal asked the applicant if he was still living in the area after the attack and he confirmed that he was, but ‘they’ watch whenever he is contacting [Applicant 1].
The Tribunal also attempted to contact the mother of applicant 2 who is also in Australia. The witness did not answer the phone and the Tribunal advised the applicants that it would be happy to receive a submission in writing. Applicant 2 advised the Tribunal that she had already provided everything her mother would say and it was included in the statements so there was no need to provide an additional statement.
The Tribunal asked the applicants if there was any other information they wanted to ensure the Tribunal was aware. Applicant 1 said they wanted to live here peacefully and they can’t risk their lives.
FINDINGS AND REASONS
The applicants claim they face harm on return to India because applicant 2 was formerly a Muslim and she voluntarily converted to Christianity and married applicant one who is a Christian. The applicants claim that their relationship has caused the family house of applicant 1 in [Town 1] to be attacked by the [Relative 1] of applicant 2 and his associates at his mosque and this resulted in threats to the applicants.
While it has some doubts about the applicants’ credibility, the Tribunal is prepared to accept that applicant 2 converted from Islam to Christianity and married the applicant 1 in 2012. The Tribunal is also prepared to accept that the [Relative 1] of applicant 2 and his associates from their mosque, who applicant 2 also believes were associated with Congress Party, attacked their family home and has threatened to kill the applicants in the future if the applicants return to their hometown of [Town 1].
The Tribunal accepts that the applicants face a real chance of serious harm at the hands of applicant 2’s [Relative 1] and his associates in the reasonably foreseeable future in their home area of [Town 1], Kerala. The Tribunal also accepts that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India, they face a real risk of significant harm at the hands of the [Relative 1] of applicant 2 and his associates in their hometown of [Town 1] in Kerala.
It was put to the applicants at the hearing that India is a vast and very populous nation, and that independent country information does not support that authorities conduct background checks when Indian nationals relocate internally. In addition, there is a very high rate of internal mobility within India with estimates of approximately 30% of the population migrating internally. The Tribunal finds that country information does not support that the [Relative 1] of applicant 2 or anyone else would be able to find the applicants in the rest of India, especially given information about the lack of central registries for housing, rentals and schools and the difficulties that even police have in tracking down individuals.
It is almost four years since the applicants’ family home was attacked and they were threatened by the [family member] of applicant 2 and his associates and almost 3 years since the applicants have been in Australia. While the evidence of [Applicant 1] was that he was attacked in October 2016, he claims this was near [Town 1] in Kerala but he has not been so concerned about the attack or threats to move location. The Tribunal doubts that the [Relative 1] of applicant 2 and his associates would be motivated to seek out the applicants in other parts of India. Even if applicant 2’s [Relative 1] and his associates were motivated to pursue the applicants across India, the country information indicates that India has a massive population and enormous cities. There is no unified national registration system for Indians and very limited sharing of information between police forces. The country information concerning the lack of central registries and the difficulties police have in tracking down individuals across the nation indicates that the chance or the risk that they would be able to locate the applicant is remote. Given the totality of the independent country information and considering their individual circumstances, the Tribunal finds that the applicants could relocate to other Indian states where there is a remote risk of the occurrence of the feared harm.
The Tribunal notes that the applicants stated that when they moved around after the attack on the house, ‘they’ could not find them. The applicants then said that when they moved to Chhattisgarh they continued to contact relatives in Kerala and applicant 2’s mother told them they had been found due to the political connections of applicant 2’s [Relative 1]. The applicants also claimed that neighbours like to interfere and could identify them. However, the applicants did not claim that they were actually found in Chhattisgarh but relied on hearsay from applicant 2’s mother and took the opportunity to move back to Kerala, where they claimed they were safe in hiding in [location], approximately one hour’s drive from the family home of applicant 1. While the applicants asserted that neighbours could interfere and identify them, they did not claim that this is what actually occurred when they moved to Chhattisgarh but rather, that the applicants had been contacting relatives in Kerala. As such, considering all the available country information and the experience of the applicants, the Tribunal finds that the chance of the applicants being located in another part of India due to neighbours, political or other connections is remote.
The applicants can read, speak and write Malayalam and English, both of which are spoken by millions of people and in a number of states. The applicants appeared to be able-bodied and they both have considerable education and employment histories. Independent country information indicates that unemployment is low in India and the country is experiencing substantial economic growth. The Tribunal does not accept that the applicants could not move to another part of India and that they could not obtain employment which would be sufficient to support themselves. The Tribunal notes that the applicants have been resourceful in traveling to Australia and establishing themselves in a foreign country and finding employment (applicant 2 told the Tribunal she was now working in [occupation]) to support themselves. The Tribunal is satisfied that the applicants could relocate and find employment in India.
As noted above, the applicants are Christian and independent country information indicates that Christians are present throughout the country representing approximately 2.4% of the population. The Tribunal is satisfied that Christians in India can practise their religion without restriction and that they have indiscriminate access to employment.
The Tribunal notes that applicant 2 converted from Islam to Christianity and the Tribunal is satisfied that independent country information indicates that conversions from Islam have led to occurrences of harm in India, however the occurrences of harm are sporadic and infrequent and the reports do not suggest that people being seriously harmed for reason of apostasy from Islam is common place in India. The Tribunal also notes that during the Tribunal hearing, applicant 2 said that if they had been in India, their son would have been discriminated against because of his parents. Applicant 3’s protection visa application states that he is Christian. On the basis of the independent country information relating to Christians, the Tribunal is satisfied that while there may be a moderate risk of social discrimination and violence, generally speaking most Christians can go about their lives without incident.
In addition, the Tribunal acknowledges the April 2015 UK Home Office report, Country Information and Guidance, India: Religious Minority Groups, which states that “religious minority communities are found across the country and generally live peacefully side by side” and that “the evidence does not support a finding that there is a real risk of persecution, serious harm, or other breach of fundamental human rights to members of those minorities”. On this basis, the Tribunal does not accept that any discrimination applicant 3 may experience on account of perception of his parents as Christians or his mother having converted from Islam to Christianity would amount to a real chance of serious harm or a real risk of significant harm.
The Tribunal notes that applicant 2 claimed that the reports and speeches (of country information) is not what is happening in practice in India. However, the Tribunal is satisfied that it has had regard to recent and authoritative country information regarding the assessment of India in relation to Christians, including DFAT’s Country Information Report.
The Tribunal does not accept applicant 2’s claims that they are unable to relocate in India because they do not know how to live in India or that where they live is an important part of their life and that they needed to think of their child’s future. Applicants 1 and 2 were born in India and spent their whole lives there until they came to Australia in 2014. Given they have only been away from India for a relatively short period of time, the Tribunal is satisfied that they know how to live in India and will be able to support applicant 3 in doing so. The applicants have also proven to be adaptable in settling in Australia since their arrival, including finding housing and employment. The Tribunal is satisfied that where the applicants live and their child’s future do not affect the applicants’ ability to return or relocate within India but are considerations for the applicants upon return to India.
Considering the independent country information and their individual circumstances, the Tribunal finds that it would be reasonable for the applicants to relocate to an area of the country where there would not be a real chance they will suffer serious harm. As such, the Tribunal is not satisfied, in accordance with s 5J(1)(c), that the real chance of persecution relates to all areas within India and therefore, the Tribunal is not satisfied that the applicants’ fear of persecution is well-founded.
Considering the independent country information and their individual circumstances, the Tribunal also finds that it would be reasonable for the applicants to relocate to an area of the country where there would not be a real risk that the applicants’ will suffer significant harm and that 36(2B)(a) applies in his case. Accordingly, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm.
CONCLUSIONS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Saxon Rice
Member

ATTACHMENT 1 - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
ATTACHMENT 2 – Independent Country Information
Relocation in India
India has some 1.3 billion people (July 2015 estimate) in some 53 million urban agglomerations in India, and the largest 8 cities have between 4 and 12 million people each.[1][2][3]
[1] – Accessed November 2016. See also USDOS, International Religious Freedom Report for 2015, is the majority language in the following northern states: Himachal Pradesh, Haryana, Delhi, Uttaranchal, Uttar Pradesh, Rajasthan, Madhya Pradesh, Bihar, Jharkhand and Chhattisgarh. Hindi is the official language of eight of the nine states listed above.[4] Malayalam has official language status in the state of Kerala and the union territories of Lakshadweep and Puducherry and is spoken by some 38 million people. Malayalam is also spoken in the neighbouring states of Tamil Nadu and Karnataka.[5] English is widespread in business circles and as a second language. Article 348 of the Constitution provides that all proceedings of the Supreme Court and High Courts, as well as bills and acts of Parliament, must be in English.[6]
[4] University of Illinois at Urbana-Champaign – Linguistics Department (n.d.), A Brief Profile of the Hindi Language - accessed November 2016.
[5]
[6] UK Home Office, Country of Origin Information Report – India, p. 10. Accessed November 2016.
According to the 2011 census, the most recent year for which disaggregated figures have been released, Hindus constitute 79.8 percent of the population, Muslims 14.2 percent, Christians 2.3 percent, and Sikhs 1.7 percent.[7]
[7] USDOS, International Religious Freedom Report for 2015, Times of India reported on 23 June 2013 that the overall Indian unemployment rate was 3%.[8] In April 2013, the World Bank issued a report in which it expected economic growth in India to accelerate to 6.7% in 2015, and concluded that long-term prospects remain bright.[9]
[8] Accessed November 2016.
[9] - accessed November 2016
The Department of Foreign Affairs and Trade (DFAT) states that Sections 19(1)(d) and (e) of the Constitution guarantee citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interests of the sovereignty and integrity of India and the security of the State. The condition of ‘reasonable restrictions’ is left to the interpretation of government and courts. It gives room for laws and regulations that can restrict movement (for example, in places where there is unrest or in some border areas) and residence (outsiders cannot buy land in Jammu and Kashmir or in Uttarakhand). DFAT also states that there is a very high rate of internal mobility within India. The 2001 Census stated that there were around 307 million internal migrants in India, defining as a migrant anyone who lived in a place different to their place of birth or place of last residence. This figure represents approximately 30 per cent of India’s total population.[10]
[10] Department of Foreign Affairs and Trade, DFAT Country Information Report – India, 15 July 2015, p. 21.
USDOS states that Indian law provides for freedom of movement within the country, and the government generally respects this in practice.[11] The UK Home Office reported that background checks by the Indian police are not conducted where Indian nationals relocate within India, as the authorities have neither the resources nor the language abilities to monitor internal relocation. While there is not currently a national registration system for Indian citizens, several proposals and versions of identity card are being used in various states for various purposes.[12]
[11] US Department of State 2013, Country Reports on Human Rights Practices for 2012 – India, 19 April, Section II
[12] UK Home Office 2010, Country of Origin Information Report, 21 September, p. 95.
DFAT also states that it is not aware of any credible reports of mistreatment of returnees by Indian authorities, including failed asylum seekers. India does not have a centralised registration system in place which would enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories within the country. A February 2015 report by the UK Home Office said that the possibility of the police, or any person or body being able to locate, at the behest of an individual’s family, a person who had fled to another state or territory in India, was remote.[13]
[13] Department of Foreign Affairs and Trade, DFAT Country Information Report – India, 15 July 2015, p. 22.
The IRBC corresponded with an official at the Canadian High Commission in India, who said that “police share information about ‘law enforcement’ but indicated that ‘there is limited sharing of information between police forces’ and police are not required to ‘report the movements of persons of interest to other offices’”.[14] In relation to tracing a person through registration, India reportedly does not have central registries for housing, rentals, schools, etc. If a person wishes to transfer voter registration to another location, however, the elections committee requires proof of address.[15]
[14] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May Accessed November 2016.
[15] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 Accessed November 2016
The previously mentioned official from the Canadian High Commission in India indicated to the IRBC that as there is no central police database and records are kept in local police stations in India, “this makes it ‘extremely difficult, if not impossible’ to locate an individual as a result of a security check, unless there is a match between a local police station and the subject of a security check”.[16] It was reported in April 2011 that an applicant was not required to go to the police station to obtain identity documents such as a driver’s licences, voter cards, or ration cards.[17] The IRBC also reported on 10 May 2016 that according to information posted on the website of the Kerala Police Department, police stations across India are "virtually unconnected islands in the case of Crime & Criminal Tracking. There is no system of effective data storage … sharing and accessing data," and there is "no single system" by which a police unit can "talk to another directly".[18]
[16] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May Accessed November 2016.
[17] Immigration and Refugee Board of Canada 2011, India: Identity documents required to obtain employment and housing in Delhi, Mumbai and Chandigarh; whether individuals must present themselves apt police stations to obtain identity documents; issuance procedures for ration cards, birth certificates, driver’s licenses, and voter cards, IND103725.E, 27 April - Accessed November 2016
[18] Immigration and Refugee Board of Canada 2016, India: Communication between police offices across the country, including the use of POLNET; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and surveillance technology, 10 May 2016, - Accessed November 2016.
Christians in India
DFAT states that According to the 2001 Census, approximately 24 million Indians identified as Christian, 2.3 per cent of India’s population at that time, making Christianity India’s third-largest religion. According to Indian Christian traditions, Christianity was brought to India by the Apostle Thomas in the first century CE, and a number of Indian Christian denominations are among the world’s oldest. From the late 15th century onwards, missionaries from Portugal and other European countries introduced Roman Catholicism to India. Protestant missions from Europe and America arrived from the beginning of the 18th century, and were particularly active during the period of British rule.
The largest Christian denominations today are Roman Catholics (17.3 million); the Syro-Malabar Catholic Church (3 million); the Protestant Church of South India (4 million); and the Malankara Orthodox Syrian Church (2.5 million). Christianity is the majority religion in the small north-east states of Mizoram, Nagaland and Meghalaya, and also has a strong residual presence in the south Indian states of Goa, Kerala and Tamil Nadu. There have been a large number of prominent Christian Indians, including former and present Chief Ministers and State Governors.
Christians have generally coexisted peacefully with members of other religious groups in India. However, there have been recent reports that right-wing Hindu organisations allied with the BJP have begun conducting “homecoming” ceremonies, in which Christians and Muslims are “re-converted” to Hinduism (on the basis that Hinduism is their ancestral religion). Some participants in these ceremonies have allegedly been threatened with violence if they did not participate. Such incidents have raised considerable concern among some Indian Christians of an increasing atmosphere of religious intolerance in India.
In totality, DFAT’s assessment is that these incidents of violence represent a moderate risk of social discrimination and violence, although generally speaking most Christians can go about their lives without incident.[19]
[19] Department of Foreign Affairs and Trade, DFAT Country Information Report – India, 15 July 2015, p. 12.
The US Department of State - International Religious Freedom Report for 2015 states that in a speech at a New Delhi event honoring Indian Catholic saints on February 17, Prime Minister Modi said, “My government will ensure that there is complete freedom of faith and that everyone has the undeniable right to retain or adopt the religion of his or her choice without coercion or undue influence...My government will not allow any religious group, belonging to the majority or the minority, to incite hatred against others, overtly or covertly.” According to the British newspaper The Guardian, religious leaders of different faiths praised his remarks, but some members of his party stated the prime minister was “pandering” to a “secular” crowd. In interviews in May and June, according to the Hindustan Times, the prime minister said, “So far as the government is concerned, there is only one holy book, which is the constitution...” and “Our constitution guarantees religious freedom to every citizen and that is not negotiable...Any discrimination or violence against any community will not be tolerated.”
The April 2015 UK Home Office report, Country Information and Guidance, India: Religious Minority Groups, also states that “religious minority communities are found across the country and generally live peacefully side by side” and that “the evidence does not support a finding that there is a real risk of persecution, serious harm, or other breach of fundamental human rights to members of those minorities”.[20]
[20] UK Home Office, Country Information and Guidance, India: Religious Minority Groups, April 2015, p. 5.
Apostasy from Islam
Reports were located indicating that some Muslims converts to Christianity have been targeted and harmed in India. A September 2014 Catholic News Agency article refers to a former Muslim imam in India who converted to Christianity, who said his ‘conversion to Christianity triggered a violent reaction from family members’. Mario Joseph reportedly received ‘death threats and torture at the hands of his family members’. He ‘said he did not expect that he would still be alive 18 years after his conversion. He said people are still trying to kill him, and his parents held a mock funeral ceremony for him to signify that he was an outcast. On the mock grave, they marked as his death date the date of his baptism’.[21]
[21] ‘Former imam: God saved me from torture after Christian conversion’ 2014, Catholic News Agency, 11 September < Accessed 26 May 2016 <CX1B9ECAB12162>
A March 2012 article on the World Watch Monitor website,[22] indicates that the parents of a young woman, Rekha Khatoon, and ‘Muslim extremists’ in a predominantly Muslim village in India’s West Bengal state, had harassed a Christian woman, Aimazan Bibi, who had ‘encouraged Khatoon to trust Christ as Lord’. Bashir Pal, pastor and founder of the village Believers Church, said that ‘Rekha Khatoon’s father, Nistar Shaike, and about 20 Muslim radicals surrounded Aimazan’s house, shouted anti-Christian slogans, threatened to harm her and her family and falsely accused her of “luring” Rekha to convert to Christianity’. Rekha Khatoon was also reportedly thrown out of her home ‘and then her parents helped Islamic extremists to beat her nearly unconscious’. She subsequently relocated to another area, where she lived ‘largely confined for her own protection’.[23]
[22] World Watch Monitor describes itself as reporting ‘the story of Christians around the world under pressure for their faith’. See: ‘About us’ n.d., World Watch Monitor <
[23] Sailo, M 2012, ‘Parents, Islamic Extremists Beat Young Woman in India’, World Watch Monitor, 20 March < Accessed 26 May 2016 <CX0D38E8E20745>
In February 2012, Compass Direct News[24] reported that the High Court in Jammu and Kashmir had ordered the ‘state government to temporarily halt criminal proceedings against a pastor accused of bribing Muslim youths to convert to Christianity’. The court ‘halted proceedings in the police complaint of “promotion of religious enmity by conversions” against the Rev. Chander Mani Khanna of the Church of North India denomination’. The article also indicates that a local online news portal Kashmirwatch.com had reported in January 2012 ‘that an Islamic seminary in north Kashmir was working with 115 converts to bring them back to Islam’.[25]
[24] Compass Direct News was ‘a news service dedicated to providing exclusive news, penetrating reports, moving interviews and insightful analyses of situations and events facing Christians persecuted for their faith’. See: ‘About Us – Strategic News from the World’s Most Difficult Areas’ n.d., Compass Direct News < It is no longer accessible but is archived on Internet Archive Wayback Machine at <
[25] Accused Pastor in Kashmir, India Given Reprieve’ 2012, Compass Direct News, 16 February < Accessed 28 February 2012 <CX282369>
According to a January 2012 article in The Times of India, a ‘self-styled Sharia court’ in Srinagar had ‘issued a fatwa asking three Christian priests to leave Jammu & Kashmir for “luring the Valley’s Muslims to Christianity”. The fatwa also directed the state government to take over the management of Christian schools in the Valley, besides monitoring church activities’. The edict followed the arrest in November 2011 of pastor M C Khanna of All Saints Church in Srinagar. He ‘was charged with conversions through allurement and threats’, and ‘subsequently left Jammu &Kashmir’. The article indicates that:
According to Nasir-ul-Islam, deputy to grand Mufti Bashiruddin, four Christian priests are involved in luring Kashmiri Muslim youth to convert to Christianity.
“Punjabi M C Khanna, Dutch national, Jim Borst, and Gayoor Messah were told to leave the Valley for their involvement in conversions. Case against the principal of Tyndale Biscoe School, Parvez Samuel Koul, is under investigation. A judgement will be announced in due course,” said Naib Mufti Nasir-ul-Islam. Besides the decree, the Sharia court asked the government to involve itself with the management of missionary schools, calling for Kashmiri educationists to become part of their management.
It also directed the schools to allot a separate class for Islamic studies for students of other faiths. “Given the Muslim majority character of the Valley, non-Muslim students should be taught Islam and the daily prayer,” said the Naib Mufti.
The All India Christian Council, New Delhi, had, on January 13, expressed apprehension that some community members may face such edicts from Srinagar’s selfstyled Sharia court.[26]
[26] Pandit, S M 2012, ‘3 Christian priests told to leave J&K’, The Times of India, 20 January < Accessed 25 May 2016 <CX0D38E8E20739>
A World Watch Monitor article dated 20 January 2012 refers to Christian workers ‘fleeing India’s Kashmir Valley after a sharia (Islamic law) court issued a “guilty verdict” against three Christian leaders, issued a fatwa against Christian schools and allegedly launched a door-to-door campaign to bring converts back to Islam’.[27]
[27] Arora, V 2012, ‘Tensions Rise in Kashmir after “Guilty Verdict,” Fatwa’, World Watch Monitor, 20 January < Accessed 26 May 2012 <CX0D38E8E20747>
An earlier article in the Hindustan Times dated 22 November 2011 indicates that the police in Jammu and Kashmir had ‘detained and questioned CM Khanna, a pastor of the All India Saints Church, following a complaint before the Grand Mufti of Kashmir, Mufti Bashir-u-din. Khanna was sent to a week’s police custody’. A special investigation team was looking at the case and seven converts had been questioned. A senior Christian cleric, Bishop Pradeep Kumar Samantaroy, the head of the Diocese of Amritsar for the Church of North India, ‘denied allegations that missionaries in Kashmir are forcing Muslim youth to convert to Christianity’.[28]
[28] J&K conversions not forced: Church’ 2011, Hindustan Times, 22 November < Accessed 25 May 2016 <CXCB3E63421067>
A November 2011 Compass Direct News article refers to a local Christian source, who had requested anonymity, saying that police in India’s Kashmir Valley had ‘picked up seven converts who were recently baptized in All Saints Church in Srinagar’, then ‘beat the converts and asked if Christians had given them money for their conversion’.[29]
[29] Arora, V 2011, ‘Police detain, beat converts from Islam in India’, Compass Direct News, 10 November <CX276099>
In August 2011, Compass Direct News reported that ‘Four months after a recent convert to Christianity from Islam in eastern India’s West Bengal state was stripped and beaten, about 50 Muslim extremists yesterday disrupted a prayer meeting held in her home, threatening to burn it down if she did not return to Islam, area Christians said’. The report indicates that ‘extremists warned Selina Bibi of Motijil village in Murshidabad district that if she did not return to Islam, then she must either leave the area or see her house burned down. At her baptism at Believers Church four kilometers from her home on March 29, a large crowd of Muslim extremists disrupted the service, said a pastor identified only as Bashir’.[30]
[30] Sailo, M 2011, ‘Muslim Extremists in India Attack, Threaten Christian Women’, Compass Direct News, 5 August <CX270387>
More recently, the 2016 USCIRF report on India does not mention specific cases of Muslims converting to Christianity in India. The report refers to instances of Christians being accused of forced conversions of Hindus, and of religious minorities reportedly being forcibly converted to Hinduism. It also indicates that state anti-conversion laws are ‘only concerned about conversions away from Hinduism’. It is stated in the report that:
Six Indian states – Chhattisgarh, Himachal Pradesh, Gujarat, Madhya Pradesh, Arunanchal Pradesh, and Odisha – have so-called “Freedom of Religion Act(s),” commonly referred to as anti-conversion laws. Rajasthan state’s parliament also passed an anti-conversion bill, but it was never signed by the state’s Chief Minister. These laws, based on concerns about unethical conversion tactics, generally require government officials to assess the legality of conversions out of Hinduism only, and provide for fines and imprisonment for anyone who uses force, fraud, or “inducement” to convert another. While the laws purportedly protect religious minorities from forced conversions, they are one-sided, only concerned about conversions away from Hinduism but not towards Hinduism.[31]
[31] US Commission on International Religious Freedom 2016, US Commission on International Religious Freedom 2016 Annual Report – India, 2 May < Accessed 25 May 2016 <CIS38A8012951>
The US Department of State report on religious freedom in India for 2014 also refers to police arresting ‘Christians and Muslims for alleged “coerced conversion” of Hindus’.[32] The report does not mention specific cases of Muslims converting to Christianity in India.[33]
[32] US Department of State 2015, International Religious Freedom Report for 2014 – India, 14 October, UNHCR Refworld, Executive Summary < <OGD95BE926024>
[33] US Department of State 2015, International Religious Freedom Report for 2014 – India, 14 October, UNHCR Refworld < <OGD95BE926024>
An April 2015 report by the Pew Research Center[34] notes that there was ‘very little empirical data on religious switching in the Indian population’. It is stated in the report that:
[34] The Pew Research Center describes itself as ‘a nonpartisan fact tank that informs the public about the issues, attitudes and trends shaping America and the world. It conducts public opinion polling, demographic research, media content analysis and other empirical social science research. Pew Research Center does not take policy positions. It is a subsidiary of The Pew Charitable Trusts’. See: ‘About Pew Research Center’ on the Pew Research Center homepage <
Religious switching has long been a sensitive subject in India, and media accounts include allegations of mass conversions, forced conversions, proselytizing, and other controversies related to religious switching, particularly from Hinduism to Christianity or Islam. However, there is very little empirical data on religious switching in the Indian population. No current, nationally representative survey of Indians provides reliable data both on respondents’ childhood religion and on their current religious affiliation (the basis for calculating switching rates).[35]
[35] Pew Research Center 2015, The Future of World Religions: Population Growth Projections, 2010-2050, 2 April, p.182 < <CISEC96CF1487>
The cited reports show that conversions from Islam have led to occurrences of harm in India, however the occurrences of harm are sporadic and infrequent and the reports do not suggest that people being seriously harmed for reason of apostasy from Islam is common place in India.

[2] - Accessed November 2016

[3] - accessed November 2016.

[2017] AATA 370

14 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal