1616860 (Refugee)
[2019] AATA 3417
•4 March 2019
1616860 (Refugee) [2019] AATA 3417 (4 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1616860
COUNTRY OF REFERENCE: India
MEMBER:Jason Pennell
DATE:4 March 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa
Statement made on 4 March 2018 at 1.42pm
CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh – particular social group – mixed caste marriage – fear of physical assault – honour killing – state protection – delay in applying for protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
DFE16 v MIBP [2017] FCCA 308
Kavan v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIBP v SZSCA (2014) 254 CLR 317
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Subramanium v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZSRQ v MIBP [2014] FCCA 2205
Zhang v RRT & Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 September 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
2.The visa applicant applied for the visa on 29 July 2015. The delegate refused to grant the visa on the basis that she was not satisfied that the applicants were people to whom Australia has protection obligations as outlined in s. 36(a) or (aa) of the Migration Act 1958 (the Act).
3.The applicant appeared before the Tribunal on 18 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [name] (‘the applicant’s wife’). The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
4.The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
5.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[1] 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[2].
[1] s.5H(1)(a) of the Migration Act 1958
[2] s.5H(1)(b) of the Migration Act 1958
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.
An applicant is considered not to be at a real risk of suffering significant harm in a country if:
·it is reasonable for the applicant to reallocate to different area of that country where there is no real risk that the applicant will suffer significant harm;[3] or
·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[4]
[3] Migration Act 1958 s36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
[4] Migration Act 1958 36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants’ migration history
According to the application for a protection visa and the delegates decision dated 14 September 2016 the applicant’s migration history is as follows:
[November] 2008 Arrived in Australia on a Class TU [student] visa. 10 September 2012 Lodged application for a Class VC [skilled] visa. [October] 2012 Departed Australia on a [student] visa. [December] 2012 Arrived back in Australia. 4 March 2013 Application for a Class VC [Skilled] visa refused. 2 October 2013 Class TU [student] visa ceased. [October] 2013 Married wife in [Town 1], Victoria. 25 November 2013 Notification of [Skilled] visa refusal resent. 16 December 2013 Review of refusal decision at Migration Review Tribunal (MRT) commenced. 29 May 2014 Refusal affirmed at MRT [June] 2014 Lodged application for a Judicial review of refusal decision at the Federal Court. [September] 2014 Judicial review outcome ‘Minister win.’ [October] 2014 Bridging visa expired; became unlawful Non-Citizen (UNC). [July] 2015 Detained under 189(1) and placed in [detention centre]. 29 July 2015 Applied for a Protection (Class XA) visa; associated bridging visa granted. 6 August 2015 Bridging Visa E granted; released into the community on a $20,000 bond. 23 September 2015 Applicants spouse. [name], lodged application for a Class TU [student] visa with the applicant as a dependant. 15 June 2016 Application for a Class TU [student] visa refused. 22 June 2016 Review of refusal decision at MRT commenced.
Country of Reference
The applicant claims to be citizen of the Republic of India. The applicant provided the department with a copy of his passport and a copy of the bio-data page of the applicant’s Indian passport was placed on the applicants file.[5] In addition the applicant provided his facial image and fingerprints as personal identifiers to the department.[6]
[5] Delegates decision dated 14 September 2016 @ p.5 Department file; [number] @ f61
[6] Ibid
The applicant’s passport, [number] was issued in Jalandhar, India, [in] 2006. Accordingly, based on the applicants oral evidence to the Tribunal and the documentation provided to the department, the Tribunal accepts and finds that the applicant was born on [date] applicant in [Town 2], Hoshianpur, Punjab, India and that his nationality is Indian. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Therefore, based on the applicants passport, the Tribunal finds that he is an Indian citizen and accordingly the applicant’s protection claim will be assessed against India as the country of reference and as the 'receiving country'.
The Tribunal is therefore satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s36(3).
The applicant’s protection claims
The applicant’s claims are detailed in the applicant’s application for a protection visa dated 29 July 2015 and are summarised in the delegate’s decision dated 14 September 2016 as follows:
(a)The applicant came to Australia to study but while he was here he fell in love with his wife who is of a higher caste.
(b)If he returns to India his wife’s parents or relatives will kill him.
(c)The applicant belongs to a lower (scheduled caste) and his wife is a Jatt Sikh.
(d)There are many documented cases of so-called ‘honour killings’ in India and the police do not get involved.
(e)The applicant’s wife’s family have political connections and he believes that if he returns he will be a victim of an ‘honour killing.’
(f)The applicant may be safe if he divorces his wife but wherever he goes with his wife they would find him and kill him.
(g)He has received may threats for his in-laws already.
The Applicant’s evidence.
The first applicant’s evidence was that he was born on [date] applicant in [Town 2], Punjab, India. He states that he is a citizen of India and of the Sikh faith. His evidence is that he speaks, reads and writes Punjabi and Hindi. The applicant was married to [his wife] [in] October 2013 in [Town 1], Victoria.
The applicant’s evidence was that his father has passed away and that his mother remains living in their village, [Town 2 in], Hoshianpur, Punjab, India. His father was a [farmer] and his mother was engaged in home duties. The applicant stated that he has [specified family members] all of whom remain living in India.
The applicant attended completed both primary and secondary school in his local village. The applicant then completed a [qualification] in 2006 and then worked for his father until 2008 when he traveled to Australia.
The applicant arrived Australia [in] November 2008 on a student visa and commenced a [Course] at [College 1]. The applicant was awarded a [qualification] [in] May 2010. The Applicant the commenced a [second] course at [College 2] but did not complete the course. The applicant’s application for a [Skilled] visa was refused on 4 March 2013 and on 2 October 2013 his class TU [student] visa ceased.
[The applicant’s wife] stated that she had commenced a [course] at [another] College. She said that she was currently on a bridging visa and that her application for a visa was separate from the applicant’s application for a protection visa. Her evidence was that her parents, [and specified family members] all continued to live in India.
The applicant’s evidence was that he met his then girlfriend, [named], in 2011 while working at a [business] in [Victoria]. They were married [in] October 2013 in [Town 1], Victoria. The applicant states that he travelled back to India in 2012 at which time he told his parents that he was to be married. The applicant said that his parents were happy for him to marry [his wife] but they were concerned that her parents may not agree as she was from a higher caste. The applicant asked his father if he would go her parents on his behalf for permission to marry [his wife], but he refused.
[The applicant’s wife’s] evidence was that her father was a very traditional person. She said that they were married without her parents’ knowledge or consent. She said that she informed them of the marriage after their marriage in Australia. She said that they were very upset and objected on the basis that the applicant’s family were from a lower caste, were not wealthy enough and did not have the appropriate standing in the community. [The applicant’s wife] said that she spoke to her family many times on the telephone in which they had tried to convince her to give up the applicant. In 2014 she returned to India to visit her family. When she arrived she discovered they had arranged for her to marry another person. As a result she returned to Australia. [The applicant’s wife] confirmed to the Tribunal that it was a matter of pride for her family to arrange her marriage. She said that her family have not visited Australia.
The applicant confirmed to the Tribunal that he had not spoken directly to [the applicant’s wife’s] family, in particular to her father. Rather, he said that in conversations with [the applicant’s wife] her father had threatened him. He said that he feared for his life in the event that he returned to India, as he fears that he will be killed by her family as a result of an ‘honour killing.’
Delay
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[7] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[8]
[7] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[8] Subramanium v MIMA (1998) VG310 of 1997.
In this case the applicant arrived in Australia [in] November 2008. The applicant was unlawful for a period of approximately 9 months, from [October] 2014 until his detention [in] July 2015 during which he made no attempt to become a lawful citizen. In particular, despite having become aware of [the applicant’s wife’s] family’s rejection of him in 2012 and his marriage to [the applicant’s wife] in October 2013, he made no attempt to apply for a protection visa until 29 July 2015. The applicant did not make his application for a protection visa until such a time that he had been detained and placed in immigration detention.
The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. However, the Tribunal has some reservations about the credibility of the applicant’s evidence based on the circumstances in which the applicant applied for a protection visa together with his delay in making the application. The fact that the applicant did not make his claim for protection at or around the time he married [his wife] and only made the application for protection after he had been detained indicates that he did not have a subjective fear of persecution in India but merely sought to stay in Australia for other reasons.
The Tribunal does not accept the applicant’s evidence that the delay in making his application for a protection visa was due to the fact that he was not aware that he could make such an application until a fellow detainee informed him that he could make such an application. The applicant’s migration history since arriving in Australia indicates that he was familiar with the migration system in Australia. He is able to speak English and has had a number of interactions with the Department and the Migration Review Tribunal. In such circumstances, it is reasonable to expect that the applicant was aware that he could make an application for a protection visa at or about the time he says that he feared being persecuted upon his return to India. The Tribunal does not accept that a person, who genuinely fears for his life in his home country, would seek a review of their student visa refusal rather than make an application for a protection visa. In addition, the Tribunal does not accept that faced with such persecution they would become unlawful non-citizens by delaying an application for protection until being detained.
THE COUNTY INFORMATION
The Department of Foreign Affairs and Trade (DFAT) Country Information Report – India dated 17 )ct0ber 2018 (‘the DFAT Report’) states:
Marriage (inter-faith, inter-caste)[9]
[9] DFAT Report @ p.18
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.
Caste System
3.47 Hindu tradition divided society into a hierarchy of hereditary groups, associated with particular occupations. Four principal groups exist within the system’s hierarchy: Brahmin priests and teachers, Kshatriya warriors and rulers, Vaishya farmers, traders and merchants and Shudra labourers. There are thousands of subgroups within the four main strata. Caste is predominately a Hindu concept, but has become a cultural phenomenon that exists within other religions and across India’s many social, linguistic and religious communities.
3.48 A group known as ‘Dalits’ (sometimes referred to as ‘Untouchables’) fell outside the four principal groups. Dalits were historically associated with work seen as less desirable, including work involving cleaning or waste, and traditional taboos existed against members of the four castes touching them. Many Dalits continue to work in occupations that include scavenging, street cleaning and handling of human or animal waste, corpses or carcasses.
3.49 Violence and discrimination against Dalits continues. Dalits have more limited educational and employment opportunities and face discrimination in health care and access to other essential services. The US State Department reported in 2017 that Dalit women were more likely than other women to suffer, or be threatened with, sexual assault.
3.50 According to the Socio Economic and Caste Census of 2011, Dalits comprised 18.45 per cent of the total population. An estimated 36.75 per cent of households in Punjab are Dalit, with lower numbers in the north-eastern states.
3.51 In recognition of entrenched disadvantage, the Constitution contains several provisions relating to ‘Scheduled Castes’ (mainly Dalits), ‘Scheduled Tribes’ (tribal and indigenous groups) and ‘Other Backward Classes’. Section 17 abolishes the practice of untouchability. Section 15 allows for positive discrimination for the ‘advancement’ of ‘socially and educationally backward classes’. Part XVI governs the reservation of positions for Scheduled Castes, Scheduled Tribes and others. This includes reserved seats in the Lok Sabha, seats in each state’s legislative assembly, government appointments and access to higher education. The government maintains a National Commission for Scheduled Castes.
3.52 Some Dalits have achieved high office, helped in some cases by quotas for educational, public service and political representation. Dalit NGOs, community groups and chambers of commerce exist. India’s President, Ram Nath Kovind, is a Dalit from the ruling BJP party and is the second Dalit to hold that position. His main opponent for the position was Meira Kumar, a Dalit from the opposition Indian National Congress Party.
3.53 DFAT assesses that Dalits and other people considered to be of a low caste continue to face a moderate level of official and societal discrimination, including social segregation, exclusion from temples and educational institutions, difficulties in finding employment, and sexual assault in the case of women and girls.
The DFAT Thematic Report Indian State of Punjab dated 7 December 2016 (’the Thematic Report’) reports that:
Honour Killings[10]
4.4Honour killings occur when a person is murdered by others in their family due to a perception that the victim has brought shame to the family. In India this typically occurs when a person has a relationship with someone of whom their family does not approve, either because of their caste, religion, socio-economic status or some other reason. For example, in July 2015 a Sikh woman was reportedly murdered by several members of her family in Punjab’s Gurdaspur district after marrying a Christian man. The couple had left their home village after their marriage and lived elsewhere for around 18 months. The woman was allegedly killed a fortnight after returning to the village. In May 2016 a man reportedly killed his 19-year-old daughter in Bathinda district because she was believed to be having a relationship with a man from a backward caste.
4.5Both males and females can be the victims of honour killings. On 26 March 2016 a man (along with an accomplice) reportedly attacked his daughter and her husband in Barnala district. The perpetrator reportedly disapproved of the couple’s recent marriage. The male victim died of his injuries, while the female victim was taken to hospital with serious injuries. In January 2016 a 17-year-old boy was killed and his body dismembered in what was reported to be an honour killing. The boy was known to be in a relationship with one of his female classmates; her father and brother have been accused of the boy’s murder.
4.6Credible data on the prevalence of honour killings in Punjab is unavailable, due in part to suspected under-reporting. Such killings may be reported as natural deaths, suicides or murders with unspecified motives in official statistics. According to the National Crime Records Bureau, five cases of murder were attributed to honour killing in Punjab in 2014 (the latest year for which official data are available), out of a total of 28 cases nationally. The United Nations, however, estimates that there are around 1,000 honour killings nationally each year. According to the US State Department, in 2013 local non-government organisations estimated that there were 900 honour killings annually in Haryana, Punjab and Uttar Pradesh alone. Some honour killings are reportedly ordered by local ‘khap panchayats’, unofficial and unelected local bodies that have no formal legal standing but retain influence over social and caste-based practices, particularly in rural areas. While present in Punjab, the prevalence and influence of khap panchayats in Punjab is significantly lower than in neighbouring Haryana.
[10] DFAT Thematic Report Indian State of Punjab dated 7 December 2016 @ p.18
In relation to the applicant being able to relocate to another part of the country the DFAT reports sates
Internal Relocation
5.14 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 interpretation of ‘reasonable restrictions’ is left to the government and courts. It enables laws and regulations that can restrict movement (for example, where there is unrest or in some border areas) and residence (non-residents cannot buy land in Jammu and Kashmir or in Uttarakhand).
5.15 India’s internal migration flows are substantial. Migration data from the 2011 census has been collected, but not yet released. The 2001 census recorded an estimated 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. The numbers may include people who had moved over very short distances within the same district, and may have missed a significant number of seasonal migrants, many of whom work in the informal sector without papers.
Limits to internal relocation
5.16 Several factors may limit options for internal relocation. These include language barriers, a lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities, and discrimination based on ethnicity, religion, caste or gender.
5.17 India is a multi-lingual and multi-ethnic nation. Language barriers prevent internal migrants from obtaining access to health or educational opportunities. Bilingual or multilingual internal migrants have better opportunities for internal relocation.
5.18 A lack of identity documents and proof of local residence can restrict internal migrants’ access to public services and social security programs or even banking facilities. As a result, they often face barriers in obtaining subsidised food, housing and banking services until they can establish identity and local residence. Ethnic, religious or caste identity may lead to anti-migrant sentiment and limit options for internal relocation. Requirements to provide details of a husband’s or father’s name can exclude single women, women with children and domestic violence survivors from government services and accommodation.
5.19 DFAT assesses that individuals seeking protection from discrimination or violence have a wide range of viable internal relocation options, although these may be more limited for some individuals depending on their personal circumstances.
ASSESSMENT OF CLAIMS AND FINDINGS
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[11]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[12]
[11] s.5AAA Migration Act 1958.
[12] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[13] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[13] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[14] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
Accepted facts
[14] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
Having considered the applicant’s evidence the Tribunal accepts and finds that:
(a)he was born on [date] applicant in [Town 2 in], Punjab, India.
(b)he is a citizen of India, and of the Sikh faith.
(c)he speaks, reads and writes Punjabi and Hindi.
(d)his father has passed away and his mother remains living [in Town 2], Punjab, India.
(e)he has [specified family members] all of whom remain living in India.
(f)he completed both primary and secondary school in his local village and completed a [qualification] in 2006.
(g)he was awarded a [qualification] [in] May 2010 from [College 1].
(h)he commenced a business course at [College 2] but did not complete the course.
(i)he married [his wife] married [in] October 2013 in [Town 1], Victoria.
Applicants Relevant Convention Grounds
The applicant submits that his claims fall within the scope of the refugee Convention by reason of his membership of a particular social group, specifically as an Indian person who has entered an inter-caste marriage. It is necessary that as a result of the applicant’s membership of a social group that he share a certain characteristics or elements which unites him with a particular group and enables them to be set apart from society at large. That is to say, not only must the applicant with his group exhibit some common element, it must unite them, making them a cognisable group within their society.[15]
[15] Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.
The applicant claims that he is from a lower Sikh caste than [the applicant’s wife]. He claims that he is from the Chamer caste, in particular the Ad-Dharmi caste,[16] a Dalit Scheduled Caste community found in the state of Punjab, India.[17]The applicant provided a Scheduled Caste Certificate from the Office of the Tehsildar as evidence of his caste.[18] Based on the evidence provided by the applicant the Tribunal accepts and finds that he is a member of the Ad-Dharmi caste.
[16] Kumar, Ashutosh. The Chamar caste group includes Ad-Dharmi, Jatia Chamar, Rehgar, Raigar, Ramdasias and Ravidasias. -Rethinking State Politics in India: Regions Within Regions. p. 387.
[17] The Chamar caste cluster consists of two castes of Chamars and Ad-dharmis. Chamar—an umbrella caste category—includes Chamars, Jatia Chamars, Rehgars, Raigars, Ramdasias, and Ravidassias.(see Ram, Ronki (21 January 2017). "Internal Caste Cleavages among Dalits in Punjab". Economic & Political Weekly Vol. 52, Issue No. 3, 21 Jan, 2017;
[18] Department file [number] @ f 53
The applicant and [his wife] claim that she is a Jatt-Sikh. [The applicant’s wife] provided a caste certificate as evidence of her caste.[19] [Her] evidence to the Tribunal was that there was no official document that identified her as a Jatt-Sikh but stated the document provided to the Tribunal had been signed by a person well known to her. [The applicant’s wife] and the applicant claimed that as a Jatt-Sikh, [the applicant’s wife] was from a higher caste than the applicant. An article for the Punjab University archive suggests that Sikhism did much to uplift the social status of the Jatt people, who were previously regarded in Punjab as being of Shudra or Vaishya status in the Hindu ritual ranking system of varna.[20] In Punjab, India Jat Sikhs are associated with agriculture and land ownership.[21] They own vast majority of available agricultural land in Punjab and are economically influential in the state.[22]
[19] Op Cit @ f 52
[20] "Sikhism uplifted the social status of Jat community of Punjab says Irfan Habib". Punjabheritage.org. 16 September 2008. Archived from the original on 27 November 2010. Retrieved 25 February 2019, Singh, Jasbir; SS Dhillon (2006). "4". Agricultural geography (3rd ed.). Tata Mcgraw-Hill. p. 176. ISBN 0-07-053228-1. Retrieved 9 May 2010.
[22] Taylor, S., Singh, M., Booth, D. (2007) Migration, development and inequality: Eastern Punjabi transnationalism. School of Social Sciences and Law, University of Teesside, Middlesbrough, UK; Department of Sociology, Punjab University, Chandigarh, India.
Therefore, based on the applicant’s evidence and the available country information the Tribunal accepts and finds that [the applicant’s wife] is from a higher caste than the applicant.The Tribunal has found that the applicant and [his wife] are married and as such it accepts and finds that the applicant is a member of a particular social group in which the characteristic of being married in an inter-caste marriage is shared by each member of the group, the applicant is perceived as sharing the characteristic and it distinguishes the group form society. Finally, the characteristic is not the shared fear of persecution but rather distinguishes the group from the rest of society. As such the tribunal finds that the applicant is a member of a particular social group being an Indian person who has entered an inter-caste marriage, as claimed.
Applicant’s well-founded fear.
In Chan v MIEA[23] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase “well-founded fear of being persecuted...” contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[24]
[23] (1989) 169 CLR 379 at 396.
[24] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.
To hold a ‘well found fear of persecution’ on an objective basis the applicant’s claims must be more than merely plausible or credible. In Chan v MIEA, Dawson J [25]stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’
[25] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that: [26]
‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
[26] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
The applicant claims that in the event he returns to India he will be a victim of an honour killing by [the applicant’s wife’s] family and as such there is a real chance he will be seriously harmed by the [her] family.
In this case, the applicant claims that he will be persecuted due to the fact that he has entered into a marriage with [his wife]. He claims that in the event he returns to India he will be persecuted by reason of the fact that [the applicant’s wife’s] family, in particular her father and brothers, are unhappy with her marriage to the applicant. Despite the fact that the applicant has never had a direct conversation with [his wife’s] family and has never received a threat directly from them, he says that he has been threatened during conversations between [the applicant’s wife] and her family during the course of her telephone conversations with them. [The applicant’s wife] confirmed to the Tribunal that during the course of telephone conversations, her father and brothers had threatened to harm the applicant in the event that he returns to India. Her evidence was that her father had said to her that she was never return home.
The available country information notes that honour killings in India occur when a person is murdered by others in their family due to a perception that the victim has brought shame to the family. This generally occurs when a person has a relationship with someone of whom their family does not approve, either because of their caste, religion, socio-economic status or some other reason. In this case the applicant claims that as a result of his lower caste [his wife’s] family do not approve of their marriage. By marrying a person from a lower caste and not in accordance with her family’s wishes [the applicant’s wife] is said to have brought shame on the family.
While the country information notes that the treatment of people in inter-religious or inter-caste marriages varies according to the families involved, according to local sources, violence associated with inter-religious or inter-caste marriage is more prevalent in Haryana, Uttar Pradesh and Rajasthan. 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.[27] In this case given the applicants delay in making his application for protection and the fact that he has not received any direct threat from [his wife’s] family, the Tribunal has some reservations that the applicant will be harmed on his return to India as claimed.
[27] The Thematic Report @ p.18.
Nevertheless, based on the country information and [the applicant’s wife’s] evidence that her family live in Haryana and that they are a strict traditional family, the Tribunal accepts and finds that there is a real chance the applicant will become a victim of an honour killing by [his wife’s] family and as such suffer serious harm in the event that he returns to India.
Internal State Protection
The applicant must be unable, or unwilling because of his fear, to avail himself of the protection of his country of nationality.
In India, the states and union territories have primary responsibility for maintaining law and order. The Constitution also empowers the central government to intervene in some situations and perform some functions in police matters. The Ministry of Home Affairs is responsible for the internal security of the country as a whole. It oversees the recruitment and management of the national Indian Police Service and Central Police Organisations, coordinates the activities of various state police organisations, and provides financial assistance to state police forces.[28] However, the investigative capacity of the police in India is reported to be very low, particularly the State of Punjab where the police generally have a poor reputation, with high levels of corruption.[29] The country information also notes that that police in Punjab are involved with the drug trade, as well as extortion of suspected LGBTI people and incidents of extra-judicial killings.[30]
Therefore, based on the country information the Tribunal finds that the applicant will not be able to rely on the police or other state protection against the real chance that he will suffer serious harm by being the victim of an ‘honour killing’ by [his wife’s] family.
Relocation
[28] DFAT report @ p.25
[29] The Thematic Report @ p.20.
[30] ibid
In circumstances were the Tribunal has accepted that the applicant has a well-founded fear of persecution it is required to consider if the applicant would be able to reasonably relocate to another part of India. For the purposes of the applicant’s claim as a refugee, the Convention does not expressly exclude a person who, although having a well-founded fear of persecution in their home region, might nevertheless reasonably relocate to a safe area within their country.[31] In Randhawa v MILGEA (1994) 52 FCR 437 the Full Court of the Federal Court accepted the principle of internal relocation on the basis that ‘[t]he focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country’.[32]
[31] SZATV v MIAC (2007) 233 CLR 18 per Kirby J at [48], per Gummow, Hayne and Crennan JJ at [11]-[12].
[32] Randhawa v MILGEA (1994) 52 FCR 437 at 440-1.
In addition, in SZATV v MIAC (2007) 233 CLR 18 the High Court confirmed as a general proposition that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[33] Similarly, it may be reasonable for an applicant to remain in a place in that country where he or she will be safe.[34]
[33] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.
[34] MIBP v SZSCA (2014) 254 CLR 317.
Therefore, for the purposes of s.36(2)(a) in determining whether the applicant is a person in respect of whom Australia has protection obligations, it is necessary to consider whether the applicant might reasonably relocate to or remain in a region within their country, free of the risk of persecution.
In this case the applicant made his application for a protection visa on 29 July 2015. As such, the applicant is considered as a refugee under s.5H(1) of the Act. That provision, as qualified by7, s.5J (1)(c) of the Act, requires the real chance of persecution to relate to all areas of India. Unlike under the Convention, there is no scope to consider the reasonableness of requiring a person to move to an area that is free from the chance of persecution.[35] However, when determining if a person can relocate to another area of a country where they do not have a real chance of persecution, a decision maker should take into account whether that person can safely and legally access that area.[36]
[35] DFE16 v MIBP [2017] FCCA 308 per Judge Smith @ [26]
[36] Op Cit per Judge Smith @ [23].
The Thematic Report[37] notes that Punjab has a long history of migration, both within India and overseas. There are no significant legal or administrative barriers to internal migration, and many people move to other parts of the country for education and employment opportunities. DFAT reports that internal relocation may be a viable option for people in Punjab seeking to avoid certain types of mistreatment. New Delhi in particular is a popular destination for many people from Punjab seeking improved economic opportunities and relatively greater social freedoms.[38]
[37] The Thematic Report @ p.21.
[38] ibid
However, DFAT[39] also notes that attempts to relocate internally to avoid harm may not be successful. For example, there are reports of honour killings of people who have relocated internally to avoid the consequences of having relationships against the wishes of their families. In some cases the families have convinced them to return by pretending to accept the relationship, before performing the honour killing; in other cases the families have followed the couple to their new city of residence before attacking them. Nonetheless, DFAT assesses that such cases are rare, and a couple willing to relocate to avoid possible harm is typically able to do so.[40]
[39] ibid
[40] ibid
In this case [the applicant’s wife’s] family have made no effort to locate the applicant or to confront him personally outside their own village. The applicant claims that [his wife’s] family have political connections to the extent that he will be a victim of an ‘honour killing’ if he returns to India. However, the applicant and [his wife] did not give any evidence in relation to her family’s political connections. [The applicant’s wife] described her father as a landlord and her brother as [an occupation 1] and did not detail any activates by which they could be described as having political influence. Therefore, while the Tribunal is prepared to accept that [the applicant’s wife’s] family may have some influence within their local village, it does not accept that their political connections or influence extends beyond the boundaries of their local village to the extent that they would be able to locate and carry out an ‘honour killing’ on the applicant. Accordingly, the Tribunal finds that the [the applicant’s wife’s] family does not have the political connections or influence to carry out an honour killing on the applicant in other parts of India, beyond their village.
The applicant’s response to the Tribunal was that [his wife’s] family would be able to find him anywhere and that as such he could not relocated to cities such as Chandigarh, New Delhi or Ludhiana as suggested by the Tribunal. [The applicant’s wife] claimed that she had an uncle living in New Delhi and a brother living Chandigarh who would be able to find and harm them. However, Chandigarh (population over a million people), New Delhi (population of over 21 million people) and Ludhiana (population over 1.5 million) are large urban centers with greater economic opportunities and social freedoms than the rural village in which [the applicant’s wife’s] family lives. From the country information it appears that the vast majority of ‘honour killings’ occur in the local village of the victim’s family were the shame that is perceived to have been inflicted is the strongest.[41]It is often the case that an honour killing may occur after the victim has returned to the village. In the case [of the applicant’s wife’s] family, there was no evidence that they had made an attempt to meet the applicant anywhere outside their village and as such there is no evidence that they would risk committing such a crime anywhere other than in the relative safety of their own community.[42] Accordingly, the Tribunal finds that the risk to the applicant is localised to [his wife’s] family village and does not accept the applicants or [his wife’s] evidence that her family will try and harm the applicant anywhere in India. Based on the available country information, the Tribunal finds that there is no real chance he will suffer serious harm by reason of being a victim of an honour killing as claimed in urban centres such as Chandigarh, New Delhi or Ludhiana. In any event there are a number of urban centres close to Punjab[43] and within India more broadly[44] with very large populations in which it would be safe for the applicant and [his wife] to relocate. That is, in which there would be no real chance the applicant would suffer serious harm as claimed.
[41] Thematic report @ p.18
[42] BBC News, India 'honour killings': Paying the price for falling in love 20 SEPTEMBER 2013; TE TIMES OF INDIA, India 'honour killings': Paying the price for falling in love 25 February 2019; The Times of India; Honour killing: Man kills daughter in Andhra PradeshHonour killing: Man kills daughter in Andhra Pradesh Ujwal Bommakanti 4 February 2019.
[43] Including Meerut, Jaipur and Jodhpur
[44] Including Mumbai, Hyderabad or Chennai
Therefore, the Tribunal finds that it would be reasonable for the applicant to relocate to another part of the county, in particular Chandigarh, New Delhi or Ludhiana. Accordingly, pursuant to s.5J(1)(c), the Tribunal finds that there is no real chance that the persecution claimed by the applicant relates to all areas of India.
Accordingly, in all the circumstances the Tribunal finds that the applicant does not have well-founded fear of persecution based on his claims of fearing that he will be a victim of an honour killing in the event he returns to India. As such, 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
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading treatment or punishment. In particular, the applicant claims that there is a real risk he will suffer significant harm in the event he is returned to India by reason that he will be the victim of an honour killing.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[45] It therefore follows that the Tribunal accepts and finds that there is a real risk that the applicant will suffer significant harm in India by reason that he will be the victim of an honour killing as a necessary and foreseeable consequence of the applicant being removed from Australia to India.
Internal State Protection – Complementary Protection
[45] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
Pursuant to s.36(2B)(b) of the Act there is taken not to be a real risk that the applicant will suffer significant harm if he is able to obtain protection from an authority within his country of nationality.[46] For the reasons expressed in paragraphs 52-54 of these reasons, the Tribunal accepts that the applicant is not able to obtain effective protection in India such that there is no real risk that he will suffer the significant harm as claimed.
Relocation – Complementary Protection
[46] s.36(2B)(b) of the Act
Pursuant to s.36(2B)(c) of the Act there is taken not to be a real risk that the applicant will suffer significant harm if it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.[47]
[47] s.36(2B)(b) of the Act
Therefore, the question is whether the fear claimed by the applicant is localised and if it is be reasonable for the applicant to seek refuge in another part of the country.[48] In this case the fear claim by the applicant is that he will be the victim of an honour killing by [his wife’s] family. As referred to above [the applicant’s wife’s] family have made no effort to locate or approach the applicant beyond the boundaries of their own village. While the applicant has claimed that [his wife’s] family have political connections to the extent that the applicant’s real risk of significant harm extends throughout India, he and [his wife] did not provide any evidence of any such connections. [The applicant’s wife] described her father as a landlord and her brother as [an occupation 1] and did not detail any activates by which they could be described as having political influence. While the Tribunal is prepared to accept that [the applicant’s wife’s] family may have some influence within their local village, it does not accept that their political connections or influence extends beyond the boundaries of their local village and that there is an appreciable risk that they would locate and carry out an ‘honour killing’ on the applicant in any other area of the country other than their local village. Accordingly, the Tribunal finds that the feared persecution is localised to the area of the [the applicant’s wife’s] family village and that is would be reasonable to expect the applicant to relocate to another area of the country.
[48] SZSRQ v MIBP [2014] FCCA 2205 per Judge Manosaridis @ [45]
It was put to the applicant that it would be reasonable to relocate to urban centres such as Chandigarh, New Delhi or Ludhiana. The cities are large urban centers offering greater economic opportunities and social freedoms not available in the applicant’s rural village. The applicant claimed that [his wife’s] family would find him anywhere in India. [The applicant’s wife] claimed that she had an uncle living in New Delhi and a brother living Chandigarh who would be able to find and harm them. However, [the applicant’s wife’s] evidence was that her father said for her never to return home. By her evidence it appeared that her father was concerned about the shame to the family in his local village rather than in the country more broadly. Nevertheless, the Tribunal finds that the chance of the applicant being recognised in a large urban area by a member of her family, in circumstances where they had never met the applicant, is remote. As such the Tribunal does not accept that there is a real risk the applicant will be located by [his wife’s] family in the event that he moves to one of the larger urban centres close to Punjab.[49]
[49] Including Meerut, Jaipur and Jodhpur
As such, given the cultural diversity, economic opportunities and social freedoms offered by the larger urban centres in the Punjab area the Tribunal finds that it is reasonable for the applicant to relocate to a city such as Chandigarh, New Delhi or Ludhiana. As such it finds that there is no real risk that the applicant will be significantly harm by reason of being a victim of an honour killing as claimed in urban centres such as Chandigarh, New Delhi or Ludhiana.
Therefore, for the reasons provided above the Tribunal finds that it is reasonable for the applicant to relocate to another area within India such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(a), there is taken not to be a real risk that the applicant will suffer significant harm in India and as such they do not satisfy s.36(2)(aa) in this regard.
At no stage did the applicant advance any other reason, such as his race and nationality in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
CONCLUSION
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 the Act for the reasons mentioned in s.5J(2) Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa
Jason Pennell
Member
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Immigration
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Administrative Law
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