1615962 (Refugee)

1615962 (Refugee) [2018] AATA 5651 (14 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615962
COUNTRY OF REFERENCE:                  India
MEMBER:Christopher Smolicz
DATE:14 December 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 December 2018 at 8:48am

CATCHWORDS

REFUGEE – Protection visa – India – particular social group – Jat caste – inter-caste marriage – mixed religious marriage – honour killing – best interests of Aboriginal Child – decision under review affirmed
LEGISLATION
Family law Act 1975 s60B
Migration Act 1958, ss S 5(1), 5H, 5J, 5K-LA, 36, 65, 417, 424A, 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 on 16 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa [in] February 2015.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because he is in a relationship with a non-Hindu Aboriginal Australian women who is not from the Jat caste.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born in Haryana, India. He is [age deleted] years old. He first arrived in Australia in November 2008 travelling on a [temporary] visa. [Information deleted]. [Information deleted]. He did not contact the Department [when his temporary] visa was cancelled in July 2012.
[In] May 2013 the applicant married an Australian citizen [Ms A].
[In] August 2013 he applied for a partner visa. The visa application was refused and the applicant sought merits review before the Migration Review Tribunal (MRT).
[In] January 2015 the MRT affirmed the department’s decision not to grant the applicant a Partner (Temporary) visa. The MRT was not satisfied that at the time the visa application was made the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship was genuine and continuing.
[In] February 2015 the applicant applied for the protection visa subject of the current application.
Since arriving in Australia the applicant has returned to India in the following periods:
·[In]January 2011 to [In] March 2011
·[In] December 2011 to [In] January 2012.
Summary of substantive claims
The applicant provided limited information in his protection visa application in support of his claim for protection. He declared that he travelled to Australia in 2008 [information deleted] and his circumstances have since changed. He is now in a relationship and has a partner and [child]. He fears he will be killed by family members (his father, brothers and cousins) and the community if he returns to India. He is also afraid for his partner’s and [child’s] safety. He claims that honour killings are well known practices in his state. He fears he will be ostracised by the community due to his relationship, making it difficult for him to subsist. He has never been previously harmed in India. His family have threatened him over the telephone when he told them about his relationship with [Ms B] and his [child]. He has received the following threats:
·[In] October 2012, after telling his mother over the phone, she said words to the effect ‘if you do this then never come back to India otherwise it won’t be good for you’.
·[In] May 2013, after telling his father, he said on the telephone words to the effect ‘if I ever went back to India he would kill me’.
·[In] March 2014, his father said on the telephone words to the effect that he should never contact him again, and if he ever saw him he would kill him.
·[In] August 2014, his uncle told him on the telephone words to the effect that if he saw him he would chop him into 100 pieces.
He claims the authorities will not protect him because they are corrupt, involved in honour killings and that the community comes before the law.
He cannot relocate elsewhere in India as he will have difficulty communicating, other Hindu people may kill him and his family and the community will chase him through the country.
The applicant’s agent provided further submissions to the Department in support of the application. In particular it was submitted that the applicant is Hindu and he would be killed due to his relationship with a non-Hindu, specifically an Indigenous Australian who is not from the same cultural and/or religious background.
It was submitted that the applicant has brought dishonour upon his Hindu family due to his relationship.
In his protection interview the applicant said that his father is part of the [local] community, in Haryana and his family is conservative.
Although his father is only a [occupation deleted], his uncle who threatened him is wealthy and has connections throughout India and would be able to locate him if he relocated.
The applicant claims he cannot live in Nepal as he has asthma and has no contacts in Nepal. He would not be able to find employment and subsist and does not speak the language.
Tribunal hearing
The Tribunal questioned the applicant about his current relationship. His is now in a de facto relationship with [Ms B]. [Ms B] is an Indigenous Australian and is from [a] Community in [Australia]. They have a [child] who is five years old. The applicant was not present at the birth of his [child] because [Ms B] didn’t tell him. [Ms B] was disappointed that he was married to another woman [Ms A] subsequently he and [Ms B] started to live together. He has now divorced his first wife. He is working for [a] Department in the [location] and is able to financially support his wife and [child]. The applicant said that he has considered applying for a partner visa and has spoken about it to his current migration agent.
He told his parents about the relationship in 2013. They were very angry at him and did not approve. His parents no longer want to communicate with him. He last spoke to his father four years ago. His parents believe in arranged marriages. He fears returning to India because his family do not approve of the marriage. His family are Hindu and members of the Jat caste and his wife needs to be from the same caste and religion.
The Tribunal told the applicant it has noted the various media reports provided in support of his application regarding honour killings in India including a report in which a couple was killed in an alleged honour killing.[1] The Tribunal noted however that country information referred to in the delegate’s decision suggests that honour killings predominantly involved violence directed at the bride not the groom. Specifically the US Department of State 2016 Human Rights Repot on India states that most reports of honour killings involved the killing of a female by her own family members who were motivated by opposition to a relationship that the female had with someone deemed inappropriate.[2] Where a male is killed it is typically by a relative of the female partner of a higher caste or where the couple are caught in compromising situations by the family members of the girls.[3]
[1] < US Department of State 2016, India 2015 Human Rights Report, 13 April 2016, section 6 < Deol S 2014 ‘Honour Killings in India: A Study of the Punjab State’, International Journal of Criminal Justice Sciences, Vol.3 no.6 June pp7-16 <CIS2F827D924>
He applicant said that not all cases get reported and the police are corrupt. The Tribunal told the applicant that it accepts that there is corruption within the police in India, however they do have a functioning police force and state protection is available. The applicant maintained that even people who have state protection were killed. The Tribunal noted that the applicant was generalising in his evidence and asked him if he ever experienced an issue with the police in India. The applicant said he came to Australia when he was [age] and did not have much to do with the police in India. He said that his phone was stolen once and they would not help.
The Tribunal questioned the applicant about the threats he claims he received from his family in India. The applicant said his uncle threatened to kill him in 2014 when he was speaking to his mother over the telephone. The Tribunal referred the applicant to his written claims and noted that he claims his uncle threatened to ‘cut him up into a 100 pieces’. The Tribunal told the applicant the language sounded rather exaggerated and extreme. The applicant maintained that his uncle was a violent man and he believes he would perform such a crime.
The Tribunal referred the applicant to his claim and had to prompt him about his evidence where he described four incidents where he was threatened over the telephone. The Tribunal asked the applicant if he could remember the first time he was threatened. The Tribunal had to further prompt the applicant and notes that he could not recall any of the other incidents detailed in his statement of claim. The Tribunal finds it very concerning that the applicant would particularise specific dates and detail the threatening words that were spoken but could not provide details of the evidence when questioned at the hearing. In response to the Tribunal’s concerns the applicant said that he used a diary when he wrote down the claims that’s why he can’t recall the evidence. When asked if he could produce the diary the applicant said he could not because it was stolen. He maintained that there were five threatening calls.
The Tribunal told the applicant it was surprised that he did not telephone his parents when his [child] was born. The applicant said he called his mother in January 2014 sometime after and she said that he embarrassed them.
The Tribunal observed that the applicant had earlier married an Australian citizen who was not Hindu or from the Jat caste. The Tribunal told the applicant it was surprising that his parents had not complained about the earlier marriage if they were strict Hindus who were opposed to mixed marriages. The applicant claimed he did not tell his parents about the first marriage. He said it was pointless telling them about who he loved. He maintained that they did not know he married anyone.
The Tribunal finds the applicant’s evidence that he did not tell his parents that he married [Ms A] in May 2013 and applied for a partner visa very unusual, especially in circumstances where he had not previously received any threats.
The Tribunal referred the applicant to country information and noted that marriage between an Indian national and a foreigner is permitted and recognised regardless of their religion. The laws allow a marriage to solemnise in a foreign nation and be registered in India.[4] The applicant said he has considered marrying [Ms B] in the future. He said that [Ms B] was an Indigenous Australian and he has not explored those options. He said he does not want to bring his family to India.
[4] Foreign Marriage Act
The Tribunal noted that he was now an adult who was independent from his family and could live in another part of India. The applicant said his [relative] was [an official] and he would be caught one day.
The Tribunal referred the applicant to the delegate’s decision and noted that there was a Friendship Treaty between India and Nepal and he could relocate to Nepal and live with his wife and [child] away from his family in India. The applicant claimed that he was aware of recent news which suggested there were problems associated with the treaty. He claimed that if the treaty is not broken he did not want to be living in Nepal on an Indian passport. The Tribunal invited the applicant to provide evidence to support his claims about the problems associated with the treaty after the hearing. The applicant was unable to provide further evidence about the treaty after the hearing.
The Tribunal told the applicant that it was surprised that [Ms B] did not come to give evidence in support of his application and had not provided a statement. The Tribunal told the applicant that it thought it would be very relevant to take evidence from [Ms B] by telephone at the hearing. After an adjournment the Tribunal was able to telephone [Ms B] and she agreed to provide evidence at the hearing.
[Ms B] said that the applicant was financially supporting her [child] and that they had been living together for four years. She did not want the applicant to leave and go to India because it would be hard for her [child] and the applicant told her it would be difficult to get a job in India.
The Tribunal asked [Ms B] if the applicant had discussed with her his concerns about returning to India. [Ms B] said he did not say much. He never talked about any problems with his mother or father. She said that the applicant’s mother calls him regularly and he has never told her about any problems with his parents. He said he does not want to go back to India because he does not want to leave her and his [child] in Australia.
Using the procedure in s.424A of the Act the Tribunal told the applicant that it appeared from [Ms B’s] evidence that she knew no details about the threats he received from his family in India which suggest his claims may not be genuine. The Tribunal told the applicant that it was concerning that he would not discuss with [Ms B] the reason he is applying for the protection visa and that he fears for his life in India. The Tribunal told the applicant that [Ms B’s] evidence was adverse to his claims and would be part of reason for affirming the decision under review subject to his comments and response. The Tribunal told the applicant that the information was relevant and would suggest that he did not experience any threats in India and as a consequence the Tribunal would affirm the delegate’s decision. The applicant requested an adjournment before he responded to the information. In response he said that he did not tell Ms Wallace about his problems in India because he did not want to scare her or her [child].
In post hearing submissions the Tribunal was provided with a statutory declaration from [Ms B]. [Ms B] declared that she was unable to attend the hearing because her [relative] was undergoing dialysis and she was required to assist her. She states that the applicant does not want to return to India and purposely tries to avoid talking about the risks he faces in India.
In assessing the applicant’s claims the Tribunal has also considered statutory declarations provided by his friends [Mr A] and [Mr B]. The Tribunal found the information about the applicant’s relationship with [Ms B] and the evidence about honour killings in India in general of limited assistance.
Country information
DFAT have provided the following background information on inter-faith, inter-caste marriage in India:
3.42 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.
3.43 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.
3.44 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.
3.45 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.
3.46 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. [5]
[5] DFAT Country Information Report India, 15 July 2015

Statistics demonstrate that inter-caste marriages do take place in Punjab. According to a 2011 paper, 10.1 per cent of Sikh women interviewed for a 2005 Indian Human Development Survey indicated that they had married outside of their caste. While this was less than Christian women (10.7 per cent), it was more than twice the percentage of Hindu women (4.5 per cent). More generally, Punjab has the highest rate of inter-caste marriage in all of India (12 per cent), more than twice the national average (5 per cent).[6]
[6] The data is taken from the Indian Human Development Survey (IHDS) of 2005. The IHDS interviewed 41157 households. Singh, D & Goli, S 2011, ‘Exploring the Concept of Mixed Marriages in Indian and selected states: First Time Evidences from Large Scale Survey’, Population Association of America 2011 Annual Meeting Program, Princeton University website, pp.3, 5, 13 <
A 2013 paper on mixed marriages in India published in the scholarly Journal of Comparative Family Studies suggests that men in Punjab are probably the most likely men in India to marry someone from another caste due to an acute shortage of women from their own caste.[7] According to the 2011 census, Punjab had approximately 1.5 million more males than females.[8]
[7] Goli, S et al 2013, ‘Exploring the Myth of Mixed Marriages in India: Evidence from a Nation-Wide Survey, Journal of Comparative Family Studies, vol.44, no.2, pp.199, 203
[8] Office of the Registrar General & Census Commissioner, India 2011, Primary Census Abstract - Punjab <
The Department’s background paper acknowledges that it is difficult to make all-encompassing statements regarding a country the size and diversity of India. That said, marriage between followers of Dharmic religions (Hinduism, Sikhism and Jainism) has traditionally been more common and generally more socially accepted than marriage between followers of Dharmic and Abrahamic religions (Christianity, Islam, and Judaism).[9]
[9] Sajid, T 2010, ‘Faith And Marriage’, SA Global Affairs website, February < ; Interfaith Shaadi 2009, 38% of Hindus Marry Outside Dharmic Faiths in America, 5 November < Mehrotra, M 2004, ‘‘Triple Outsiders’, Gender and Ethnic Identity Among Asian Indian Immigrants’, PhD dissertation, Virginia Polytechnic Institute and State University, Blacksburg, p.26 <
Treatment of inter-religious couples ranges from passive discrimination or social exclusion to violent attacks. The degree of mistreatment may depend on a couple’s location and social levels, and either family members or broader communities may be responsible for such treatment.[10]
[10] Immigration and Refugee Board of Canada 2006, ‘India: The situation of couples in inter-caste and inter-religious marriages, including societal attitudes, treatment by government authorities and the situation of children resulting from such marriages (2000 – 2005)’, 9 January, UNHCR Refworld < Department of Foreign Affairs and Trade 2011, DFAT Report No. 1285 – India: RRT Information Request: IND38682, 30 May
In relation to state protection the Tribunal notes that inter-religious couples may apply for court-ordered police protection. For instance, in November 2011 the Himachal Pradesh High Court reportedly directed superintendents in Bilaspur and Hamirpur to protect the lives and property of a Hindu-Muslim couple who married against the will of their families. In this case, the Hindu woman converted to Islam prior to marriage; her family filed a police complaint and the couple received death threats.[11]
[11] Department of Foreign Affairs and Trade 2011, DFAT Report No. 1285 – India: RRT Information Request: IND38682, 30 May; ‘Cops told to protect inter-religion couple’ 2011, The Times of India, 5 November < esofindia.indiatimes.com/india/Cops-told-to-protect-inter-re ligion-couple/articleshow/10614359.cms>; ‘HC directs Police to protect couple’ 2011, UNI (United News of India), 4 November
Regarding police protection more generally, Indian law is not always effectively enforced by officers; the US Department of State reported that in 2010, ‘due to a lack of sufficiently trained police and elements of corruption, the law was not always enforced rigorously or effectively in some cases pertaining to religiously oriented violence’.[12]
[12] US Department of State 2011, International Religious Freedom Report for 2010 (July-December) – India, 13 September, Section II
The 2008 UK Home Office Operational Guidance Note – India explained that the governments of India’s 28 states and seven union territories have primary responsibility for maintaining law and order, with the central government providing guidance and support. Some members of the security forces have reportedly committed human rights abuses, and corruption in the police force exists at all levels. The note states that police have acted with relative impunity, and are rarely held accountable for illegal actions.[13] Human Rights Watch has alleged in the past that ‘[p]olice routinely fail to investigate apparent “honor” killings’.[14] A 2011 source stated that Punjab police had been unable to find a solution to an apparent ‘surge’ in the number of honour killings.[15] In one 2007 case, three officers of the Kolkata City Police were among seven persons charged by the Central Bureau of Investigation in relation to the death of a Muslim man who married a Hindu woman.[16]
Findings
[13] UK Home Office 2008, Operational Guidance Note – India, April, p.8
[14] Human Rights Watch 2010, India: Prosecute Rampant ‘Honor’ Killings, 18 July <
[15] ‘Spate of honour killings shakes up Punjab’ 2011, Indo-Asian News Service, 14 July
[16] US Department of State 2009, Country Reports on Human Rights Practices for 2008 – India, 25 February, Section 2
The Tribunal notes that arranged marriages continue to account for the overwhelming majority of marriages across India. The Tribunal accepts that marriage outside the caste and/or a person’s religion can bring dishonour to a family in India. The Tribunal accepts that the applicant’s mother, father and uncle may disapprove of the applicant’s relationship with [Ms B] and the fact that they have had a child together in circumstances where there relationship was not arranged by the parents and [Ms B] is a non-Hindu woman.
Beyond these issues, however, the Tribunal does not accept the applicant will suffer serious harm or significant harm in the reasonably foreseeable future from his family because he married a non-Hindu Indigenous Australian woman who is not from Jat caste. The Tribunal has had regard to the country information and is also not satisfied that the applicant will face serious harm or significant harm from the Hindu community in India due to his relationship with [Ms B].
The Tribunal has a number of concerns about the applicant’s evidence, which cause the Tribunal to find that the applicant is not a credible witness and has not been truthful in relation to his fears about returning to India. In reaching this view, the Tribunal has had regard to the applicant’s oral evidence which was vague and lacking in detail. The Tribunal also finds that there were inconsistencies between the applicant’s oral evidence and his written claims.
The Tribunal does not accept that the applicant was threatened with violence by his family in India and that his life is in danger. The Tribunal found the applicant’s evidence about the threats of violence he claims to have received in India lacking in credibility. The Tribunal finds the applicant exaggerated and embellished his evidence. The Tribunal does not accept that his family in India have ever threatened to kill him because of his relationship with [Ms B].
In his written claims the applicant claimed to have been threatened over the telephone on four occasions in the period October 2012 to August 2014. At the hearing however the applicant was only able to recall one occasion when he was threatened in 2014 involving his uncle. The Tribunal found the applicant’s explanation that he was able to recall the dates because he kept a diary lacking in credibility. The Tribunal does not accept the applicant ever kept a diary or that it was stolen. The Tribunal finds the applicant manufactured this evidence because he was never threatened by his family.
The Tribunal must assess the applicant’s claims looking into the reasonably foreseeable future. The Tribunal also finds it relevant that there was no evidence about the threats continuing after 2014, despite the fact that his mother continues to have regular contact with him in Australia.
The Tribunal also notes that the applicant married [Ms A] (a non-Hindu Australian citizen) in May 2013 and applied for a partner visa in August 2013. The Tribunal found the applicant’s explanation that he did not tell his parents about his marriage difficult to accept. The Tribunal finds it very surprising that he claimed to have disclosed his relationship with [Ms B]to his parents but would not disclose his relationship and marriage to [Ms A]. This is made even unusual given that he claims to have disclosed his relationship with [Ms B] to his parents before he married [Ms A] in May 2013. Having considered this evidence the Tribunal concludes that he has not been truthful.
The Tribunal has considered [Ms B’s] evidence at the hearing and the applicant’s response. The Tribunal found very unusual that [Ms B] had no knowledge of the threats the applicant claims he fears in India from his family. The Tribunal would have expected the applicant to have discussed such matters with [Ms B] so they would be able to plan their future together if he had to return to India.
Looking into the reasonably foreseeable future, the Tribunal does not accept that there is a real chance the applicant’s family and/or the local Hindu community in India will cause him serious harm because of his relationship with [Ms B] and the birth of their [child].
The Tribunal finds that the applicant’s fear of persecution because of his relationship is not well founded.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
The Tribunal has also considered the applicant’s claims, having regard to the complementary protection provisions, which require the Tribunal to consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
As stated above the Tribunal found the applicant’s evidence vague and lacking in detail.
The Tribunal is not satisfied that there is a real risk that the applicant would face significant harm from his family or the Hindu community upon his return to India, including arbitrary deprivation of life; torture; cruel or inhuman treatment or punishment; or degrading treatment or punishment.
Looking at the applicant’s claims individually and cumulatively the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he will suffer significant harm as defined in the Act.
Having concluded that the 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 applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
Ministerial intervention
The applicant’s representative made submissions addressing the impact of a negative decision on the applicant’s Aboriginal child if he were deported and had to return to India or relocate to Nepal. In particular it was submitted that the unintended consequence of the applicant being refused a protection visa would be the infringement of s.60B of the Family Law Act 1975 relating to the rights and best interests of Aboriginal children in addition to numerous covenants and articles of the United Nations Convention on the Rights of the Child. It was submitted that should the Tribunal affirm the delegate’s decision not to grant the applicant a protection visa, then the Tribunal should have regard to the Department’s Policy Guidelines PAM3 and support an application for Ministerial intervention.[17]
[17] PAM3 Ref-Onshore The Protection Visa Processing Guidelines Part 4.113.4 Best Interests of the Child which references Article 3.1 of the Convention on the Rights of the Child and states, ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’
The Tribunal was provided with statutory declarations from a number of members of the [information deleted] people, including [Ms B] family members. The Tribunal is acutely aware that the applicant has a very young [child] whose interests may be affected by this decision.
Article 9 of the Convention on the Rights of the Child states that State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. It goes on to state at Article 9(4) that where separation results from action initiated by the State Party, such as deportation, the State Party will provide parents with information about the whereabouts of the absent parent.
As discussed with the applicant at the hearing his [child] was born in Australia. His mother is an Australian citizen. The child acquired Australian citizenship at birth. If the Tribunal refuses the applicant’s protection visa, it will not affect the child’s Australian citizenship status and the child is able to remain in Australia with [the] mother. The Tribunal explained to the applicant at the hearing that although it has sympathy for his situation the issue in this case is whether he meets the refugee criteria or complementary protection criteria in circumstances where his partner and child are not secondary applicants to this application.
The Tribunal accepts however that the applicant’s contact with his [child] may be affected if he leaves Australia as a result of the Tribunal affirming the Department’s decision not to grant him a protection visa. This will make direct physical contact with his [child] on a regular basis difficult, and makes for a difficult decision in this case. The Tribunal considers the best interests of the child are to remain with both [the] parents. The Tribunal accepts that the applicant has a close relationship with his [child].
The Tribunal notes that the Minister for Immigration and Border Protection – Home Affairs, as it is called now – has an entirely discretionary power pursuant to s.417 of the Act to intervene in cases to grant a visa where the outcome of the review application has been unsuccessful. This is often referred to as a ministerial intervention.
This section gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister thinks that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases in which it is considered that it would be inappropriate for the Minister to consider intervening:
It remains open to the applicant and his agent to make such a request for ministerial intervention directly to the Minister themselves if they believe that the applicant’s case meets the ministerial intervention guidelines or otherwise raises strong compassionate or compelling circumstances.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 5651

14 December 2018

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Immigration

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