1619513 (Refugee)

1619513 (Refugee) [2020] AATA 1543 (20 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619513
COUNTRY OF REFERENCE:                   India
MEMBER:Anne Grant
DATE:20 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 April 2020 at 2:08pm
CATCHWORDS
REFUGEE – protection visa – India – requests for hearing to be reschedule granted – fear of harm from family members – long-standing property dispute with siblings – real chance of serious harm limited and localised – internal relocation – any part of the country outside of the applicant’s home village – religion – Sikhism – capacity to subsist – failed asylum seeker – applicant’s child’s health concerns – harm from exposure to the COVID-19 virus – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 and Border Protection on 3 November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 4 July 2016. The delegate refused to grant the visas. The applicants sought review of the decision on 20 November 2016.
On 17 December 2018, by letter, the applicants were invited to attend a hearing scheduled for 6 February 2019 to make submissions and give evidence in support of their claims. On 9 January 2019, the applicants requested that the hearing be rescheduled and provided evidence from [a health care facility] which confirmed that their child [Child A] was born prematurely at 24 weeks on [date] and remained in need of intensive care in the Natal Intensive Care Unit with her parents necessarily present for the baby’s care on every day. The applicants provided a supporting letter which confirmed that they were experiencing a very stressful situation and were ‘not in right state of mind to explain their claims and evidences to the Tribunal.’ In those circumstances the hearing date was vacated and the applicants advised that their request for a reschedule had been granted.
On 2 July 2019, the applicants were invited to attend a hearing scheduled for 20 August 2019. On 6 August 2019, they requested that the hearing be rescheduled again and provided a letter from a social worker in [a department] at [a health care facility] which included advice that the child had now been discharged from the NICU but still has ‘many many’ appointments and follow up with medical teams that must be attended. The child remains on low-flow oxygen and could become unwell at any time. The writer also provides an opinion that the child could not travel until at least August 2020. After considering these submissions, the hearing date was again vacated and the applicants advised that their request for a reschedule had been granted.
The applicants attended a hearing on 5 February 2020. They gave evidence separately with the assistance of an interpreter in the Punjabi language. They were represented by their migration agent at the hearing. The Tribunal was also provided with a copy of the departmental file containing the applicants’ application for protection and documents in support from the Department of Home Affairs (the Departmental File).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted 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.
The issue in this case is whether the applicants are refugees and if not, whether there are substantial grounds for believing that there is a real risk that they will suffer significant harm as a necessary and foreseeable consequence of them being returned to India.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicant one was the primary applicant. His written claims in the application for protection were:
·     He and his wife (Applicant two) are citizens of India. He left India because he had a property dispute with his brothers, who own property behind land left to the applicant by his parents. The applicant says that the land left to him by his parents is the only property he owns.
·     He claims that his land is very expensive and that his brothers want to sell his share of the land too. Because, (at the time Applicant one lodged his claims) he did not have any children, he said that his brothers wanted his share of the land instead. He claims that they threatened to kill him and his wife if he were to return to India.
·     He claims that he and his brothers have always fought and that they tried to kill him and his wife, so his family fled to his in-laws’ place, but his brothers came there too. Following this, the applicant’s brother-in-law sent him and his wife to [Country 1].
·     Applicant one claims that he tried to ‘sort everything out’ with his brothers but they wanted his land, which is the only thing left to him by his parents. He moved to his in-laws’ place, but his brothers found him there too.
·     Applicant one claims that he returned to India two or three times in the 14 years he lived in [Country 1] but never returned to his home village. He claims that his in-laws came to Delhi and stayed with him and his wife there for two or three days. He claimed that he does not know anyone who can help him and his wife in India.
·     Applicant one does not believe the authorities would be able to help him as the authorities cannot protect him all the time. He said that he and his wife moved to [Country 1], but he also had problems there because ‘people over there are very racist’ and robbed him and his wife too many times.
The secondary applicant (Applicant two) relied on the same claims as her husband.
The delegate did not interview the applicants. At hearing, the applicants gave the following clarifying information about their claims for protection:
·They married in India in February 2002.
·Before coming to Australia [in] June 2013 on visitor visas, the applicants had lived for many years in [Country 1]. Applicant one travelled to and worked in [Country 1] from July 2002. Applicant two joined him in [Country 1] shortly afterwards.
·Applicant one is a [Occupation 1] who had trained in his uncle’s [business] in India and had previously travelled to and worked in [Country 2] from 1998 to 2002. Applicant two has never worked in paid employment.
·Applicant one went to [Country 1] because friends there told him about job opportunities, gave him references and found him a job.
·Applicant one has [number of] brothers and [number of] sisters. His mother passed away in 2001 and his father in 2008. He returned from [Country 1] for his father’s funeral but did not notify his family of that intention. Applicant two travelled with him.   They stayed with Applicant two’s family.
·Applicant one’s father was a retired [Occupation 2]. [Number] of his brothers are retired [Occupation 2]. [Number] are in [Industry 1]. Another brother is a [Occupation 1], and another brother was in [Country 3] but has returned to India. His oldest sister passed away two years ago from cancer. She had already lost both her husband and two children. His next sister is a widow with one of her three sons surviving. One of her sons died in an accident and another [died under specified circumstance]. Another sister is married [and] lives about 20–25 kilometres away. His youngest sister is married with [number of] [children]. They live in the same village as his other sister, around 20–25 kilometres away.
·In response to my question about his written claim that his family tried to kill him, Applicant one said that his father divided the family land (around one and a half acres) between all of the children some years before he died. It was not officially transferred (that is, the transfers were not documented) but the older children got larger parcels and the younger received smaller parcels of land.   Applicant one built a home with the money he earned in [Country 2] on his parcel of land. When it was finished, his father and some of his brothers and their families lived in the house.
·When Applicant one returned from [Country 2] in 2001, his brothers said that he had no entitlement to any of his land or property – that he had given it up because he had been away so long, and because he had been given an education and trade that they had been deprived of. Applicant one’s father refused to become involved and urged them to sort it out amongst themselves. In any event, the applicant remained in India and married in February 2002, leaving his bride (Applicant two) with his family in the home he had built when he travelled to [Country 1].
·Applicant two said that her in-laws treated her poorly, and often criticised her husband, and told her that he had no interest in the property.   They would tell her to leave, blamed her for damaging things in the house, and swore at her. She had become pregnant before Applicant one left but later lost the baby. Applicant one’s family gave Applicant two no support at all when she lost the baby, and her sister travelled to care for her after that happened. She gave evidence that she was young and didn’t know how in-laws usually treat new wives, but she found it difficult living with them once her husband went to [Country 1]. Both applicants ascribe the loss of their first child to the stress caused by the poor treatment and abuse Applicant two received from her in-laws. Applicant two confirmed that Applicant one’s family never physically harmed or threatened to harm her. It was more that they would be disrespectful, rude and abusive and implied she shouldn’t be there, which caused her considerable distress. Applicant two kept Applicant one informed of her experience and how unhappy she was, and once he was settled in [Country 1], she travelled there to join him in 2003.
·The applicants lived in [Country 1] until they came to Australia.   However, they have twice returned to India. In 2008, they returned when Applicant one’s father passed away and stayed with Applicant two’s family. (Her family is supportive of the applicants.) They were told of Applicant one’s father’s death by a cousin’s son and returned to India to pay their respects. They had not spoken with Applicant one’s family since they left India and only heard little bits about what was happening in the family through the cousin’s son. That person had also informed them that the family often spoke about how they believed that the applicants had foregone and had no right to claim any interest in the family property due to their long absence from the country. In 2008 when they were back in the country, they heard through Applicant one’s cousin that they had taken all his ‘stuff’ and put it outside of the house.
·While they were staying with Applicant two’s family in 2008, and shortly after the funeral, Applicant one went for a trip around the area surrounding their home. While he was out, some men came up to him, confirmed who he was, and then said that he had 24 hours to leave the country or he would be killed. He did not see any guns but believed that they were the sort of people who would have them. At that time, they still had 10 days to go on their visit to India, but he decided to buy an earlier ticket and the applicants left India after another three days. Applicant one did not tell Applicant two what had happened at that time, instead saying that he had been called back to [Country 1] early.
·The applicants returned to [Country 1] and had no contact with Applicant one’s family. In 2011, Applicant two required an operation for [medical condition] and returned to India (to her family) to have the operation and be cared for by them as she recovered.    Applicant one joined her at the time for only one week (Applicant two was there for about a month). On this visit, the applicants had no contact with Applicant one’s family. They did not tell them that they were in India. Applicant one gave evidence that, out of a desire to keep them safe, he did not even tell his cousin’s son of their return. In that time, they were not bothered or contacted by Applicant one’s family, who did not know they were in India.
·I put to Applicant one that, given the description of events he had described, no one had actually ‘tried to kill them’ as claimed in the written application. He referred to the fact that in 2008, his family did get some people (rough people who he suspected were gangsters) to follow him in the time he was staying with his in-laws. He and Applicant two had planned to stay for around two weeks but he felt so threatened that they left as soon as they could.
·In answer to my questions about conversations they had with Applicant one’s family at his father’s funeral, the applicants both said there was very little conversation at all, and not much time for catching up. They said it was quite a hostile and grief-stricken environment. Applicant one denied telling anyone that they intended to move back to India, and therefore could not be sure why his family felt it necessary to force him to leave in such a hurry and with such a threat. He thought perhaps that they were worried that he might lodge a case against them while he was back in the country to recover his property - and wanted to get him out of the country before he had a chance to do so. He acknowledged that he had told his cousin’s son in conversations over earlier years that he wouldn’t readily just abandon his right to return to India and claim his property.   Perhaps his cousin’s son had relayed that to his family.
·Applicant one said that he did not report the threat he received in 2008, because he didn’t want to get caught up in any process which might prevent him from leaving or delay his departure from the country. He also didn’t believe he would get justice in India, stating that the police and justice system is corrupt.
·I asked Applicant one if, in the event he returned to India, he would try to ‘force’ the family to give back his property. He said he would not, out of fear that it would put his wife and daughter at risk. His wife is pregnant with their second child.    He also said that his family are more well connected to political people in the area (simply because they have lived there all these years and he hasn’t) and consequently, he doesn’t believe he could successfully fight them in court. He also wants to stay away from potential conflicts. The applicants are unaware of the distribution of Applicant one’s father’s deceased estate. Applicant one said it is likely that the eldest son had organised it all and therefore, due to his absence, that Applicant one has not received anything. He acknowledged that, in those circumstances, even were he minded to return and claim his proper inheritance, there is potentially a legal issue with his ability to prove any interest in the property, because it would be his word against that of his surviving siblings, and there was never any formal transfer or papers signed by his father formalising the allocation of parcels of land to the children.
·Applicant one said that he did not believe that his particular [Occupation 1] skills, which are specialist [skills], are needed in India. While he could also work on other [similar jobs], to do so, he would have to relocate to a big city.    He said that if he was to establish a [Occupation 1] business in one of the big cities, he would need a million dollars, which he didn’t have.    He clarified by saying that buying a [business] costs a lot, and they couldn’t afford a house as well. I noted that he could find work as an employee and although he agreed, Applicant one indicated that he had another friend who had returned to India and been unable to find work in his same field. Applicant one speaks Punjabi, Hindi, some English, and a [Country 1] local tongue.
·Applicant one also said that Sikhs are treated poorly and have crimes committed against them in India. He agreed that Sikhs were the majority ethnicity in Punjab State. He indicated that the applicants had applied for a passport for their daughter and been refused (they did not know why) and the applicant is concerned that it is somehow related to their protection visa application and that they will be ‘picked up’ at the airport because they have sought protection in Australia.    He agreed that he has no issues with the Indian government or any prior difficulties with authorities there.
·The applicants said that they left [Country 1] because they no longer felt safe there. They experienced a violent home invasion and were also harassed on the street on a couple of occasions by robbers. Applicant one held a work permit there which was renewed several times because he had a job. They were not ‘required’ to leave [Country 1] at the time they left but chose to do so.
·Their daughter was born many weeks premature and has some permanent health problems as a consequence. She had an infection as an infant and doctors believe she has suffered some brain damage. She is unable to walk or speak, and the applicants submitted that she would be vulnerable and unable to protect herself ‘if attacked’. The applicants said that their daughter’s condition would require facilities and treatment only available in larger cities in India so it will influence their choice of living location if they return to India.
·The applicants each have health issues. Applicant one has [Medical Condition 1] and Applicant two suffers from [Medical Condition 2]. They acknowledged they can receive treatment for those conditions in India, if necessary. Their second baby is due at the end of [month] [year] and the pregnancy has been unremarkable so far, and Applicant two advised she is getting excellent care.
·The applicants’ representative submitted that it would be difficult for the applicants to return to India as they would be in fear ‘all the time’, and they are comfortable in Australia. They would experience hardship in re-establishing themselves.

Based on the information and evidence provided by the applicants, I am satisfied that they are both Indian citizens. India is their country of nationality and the receiving country in considering their protection claims.
Fear of harm from Applicant one’s family or people engaged or associated with them
I found the applicants’ evidence about their long-standing issues with Applicant one’s family to be credible and I accept that evidence as generally reliable. Based on the applicants’ evidence at hearing, however, I do not accept some aspects of their written claims. I am not satisfied that the land dispute is related to a desire to sell the property (as stated in the written claims) because the applicants’ oral evidence was that his family wanted to live in and take ownership of the home he built. I consider that it is likely that the property is now in the hands of his family members, and that the applicant has no say in whether the property is sold or occupied by other family members, despite what is referred to in his written claims.
Similarly, based on the evidence at hearing, I do not accept that the applicants were ‘sent to [Country 1]’ by Applicant one’s brother-in-law to keep them safe. Rather, I accept their oral evidence that Applicant one travelled there because of work opportunities and that Applicant two joined him in [Country 1] when he was settled.
I reject the written claims which suggest that although Applicant one has returned to India two or three times since leaving, he has never returned to his home village. The applicants’ evidence (which I accept) is that they returned to his home village ([Village 1]) to attend his father’s funeral in 2008, and then to India but not to [Village 1] in 2011.
I also do not accept that anyone associated with Applicant one’s family has ever actually physically assaulted either applicant or ‘tried to kill’ them, as written in those claims. Nonetheless, I accept that Applicant two was subjected to insults and abuse when staying with Applicant one’s family, and that a threat was made to Applicant two in 2008, demanding that they leave the country, or they would be killed. The implication in that threat was that if the applicants return to their former home and try to reclaim an interest in the property which Applicant one believes in truth belongs to himself, they will be killed.
Based on their evidence at hearing, I accept that there is a history of hostility and potential conflict over the limited property shared among Applicant one and his siblings. I note the country information[1] which confirms that property disputes can become deadly in India due to the lack of land availability and the size of the population. It is plausible in that context that members of the applicant’s family may harm, intimidate or harass them if they were to return to Applicant one’s home village and seek to re-join the family and assert their entitlement to a particular or any portion of the family property. The applicant has said that he would not start legal proceedings or try to live with his family again out of fear of the consequences. Nonetheless, I have proceeded on the basis that if he returned to his former home area, he would face conflict and the perception (even if untrue) that he had come back in order to retrieve his entitlements and enforce his right to some proportion of the family property. After taking into account their previous experiences, I accept that the applicants do face a real chance of suffering serious harm from Applicant one’s family or people associated with them if they return to live in (or in close proximity to) Applicant one’s former home village, [Village 1] in Punjab State.
[1] As discussed with the applicants generally at hearing, I note and accept as reliable the observation in Issues Paper on Land Disputes and Moneylenders in Punjab, as updated in March 2014, which includes the following: “…a survey of Indian news sources indicates that disputes over land title sometimes result in violence, including murder. Perpetrators commonly include the victim’s children, siblings, parents, and neighbours.”
In 2008, when the applicants were known to be in India for Applicant one’s father’s funeral and were staying with Applicant two’s family, I have accepted that Applicant one was approached and threatened by men who he believes (and plausibly) were employed to do so by his family. I have taken into account that based on the applicants’ oral evidence before me, Applicant two’s family live more than two hours distant from [Village 1], whilst still being in Punjab State. (Applicant two’s passport and her original claim state that she was born in and went to school in [Abohar], also in Punjab State.) Even though Applicant one’s family showed some capacity to threaten him in 2008, this threat was made at a time when his family knew he had returned and where he was staying in India, and also at a time when family emotions and rivalries would have been heightened. I do not consider that the fact of the threat in 2008 suggests that Applicant one’s family would now (or in the foreseeable future) have the capacity or intention to locate the applicants outside of their (the persecutors’) home area. I have taken into account that they did not discover that Applicant two was in India for more than a month in 2011 or that Applicant one had returned at that time. I note Applicant one’s evidence that the only requirement to keep them safe from his family at that time was that they not tell any of Applicant one’s relatives that they had returned to India, including his cousin’s son. The evidence before me is that Applicant one’s family (or people associated with them) have not harassed or questioned Applicant two’s family about their return at any stage. I am not satisfied that the information and evidence before me reflects that Applicant one’s family has any capacity (or desire) to find and harm the applicants if they were to return and live outside of Applicant one’s home area (in or near [Village 1]) in Punjab State.
I consider that, in the particular circumstances of this case, the real chance of harm is limited and localised to [Village 1] and immediate surrounding areas, in Punjab State. Whilst I have accepted that there is a real chance that Applicant one’s return there would be perceived as an intention to reclaim his right to a share of the family property, I am not satisfied that the information and evidence before me as a whole establishes that there is a real chance (or any chance) that, if the applicant and his wife were to return to India and chose to live in a large city or in any part of the country (including living near Applicant two’s family) away from Applicant one’s home village, that the applicants will suffer serious harm, such as violence, harassment or threats from Applicant one’s family. I find that the real chance of persecution does not relate to all areas of India as required by s.5J(1)(c) of the Act and therefore conclude that the applicants’ fear of harm from Applicant one’s family due to the property dispute is not well founded.
Fear of harm from anti-Sikh elements of Indian society
The applicants claimed broadly that Sikhs are treated poorly in India. They did not provide specific examples of such treatment or any experience they had of such poor treatment themselves. The applicants did not raise claims that (and the evidence before me does not suggest) they have a high profile in the Sikh community in any part of India or that they support or have ever advocated for an independent Khalistan State in India.
The general country information reflects that India is a diverse, multi-ethnic and multi-lingual society with 22 languages recognised in its’ constitution. Sikhs represent 1.7 percent of the population, but in Punjab State, they are a majority of the population.[2] Sikhs also have a minority community status according to Federal Law.[3] The most recent DFAT report includes the following specific information related to the Sikh community in India:
3.16 Sikhism is a monotheistic religion founded in the Punjab region (now part of both India and Pakistan) in the 15th century. Sikhs consider themselves disciples of the Ten Gurus, beginning with Guru Nanak (1469-1539) and ending with Gobind Singh (1666-1708). According to the 2011 census, the Sikh population of India was approximately 19 million, 1.7 per cent of the total population at that time. Most Sikhs (75 per cent) live in Punjab, where they comprise around 55 per cent of the population.
3.17 One of the points of difference between Sikh groups is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. During an internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984. The Indian government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The army bombarded the Golden Temple complex, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.
3.18 In retaliation for Operation Blue Star, two of then-Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days that followed, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which allegations emerged of torture, extrajudicial killings and deaths in custody carried out by security forces.
3.19 Sources agree that, since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent ‘Khalistan’ may be subject to attention by authorities. DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination.
[2] Department of Foreign Affairs and Trade Country Report: India 20 October 2018 at 2.5 – 2.8.
[3] Ibid at 3.4
I have considered the applicants’ claim that they may encounter some discrimination and language difficulties in India due to them being Sikhs from Punjab. The information before me does not support that claim. I prefer and accept DFAT’s assessment that Sikhs in India are at low risk of violence, and societal and official discrimination. Based on the country information and the limited evidence about this issue given by the applicants, I find that there is not a real chance that the applicants will be persecuted because of their Sikh faith in India, and I do not accept any such claim.
Fear of harm due to incapacity to find employment and financial hardship
The applicants both acknowledged that they would have some emotional support from Applicant two’s family if they returned to India, because they have a good relationship with them. Nonetheless, the evidence reflects that they are and have always been financially independent from either applicant’s family. They claim that Applicant one may be unable to find work in India because of his specialised [Occupation 1] skills (in [Industry 2]), and that the family will face financial hardship as a consequence. Whilst Applicant one acknowledged that he could also potentially find work in alternative [Occupation 1] fields, he said that a friend of his had returned to India with the same skill set and been unable to find work for several years. He was concerned that he might have the same experience.
I note and have considered that Applicant one has worked in various international locations as a [Occupation 1]. I have taken into consideration his claim that there are no jobs in his specialised [Occupation 1]’s field in India. The applicant’s evidence suggests that his concern about the lack of ‘[specialised Occupation 1]’ work was based on one friend’s experience on returning to India. I consider this claim appears speculative. I have taken into account that Applicant one also acknowledged that he would be able to find employee [Occupation 1] work (or even establish his own business subject to finding the money to do so) even if it was not in his chosen field of expertise. I consider that it is reasonable to find that Applicant one’s skills as a [Occupation 1], developed over the past twenty or so years, would most likely be in demand in India just as they have been in [Country 2], [Country 1] and Australia. After considering his evidence and the country information generally, I consider that the claim that Applicant one would be unable to find employment and that the applicants would consequently be unable to subsist in India is speculative, not based on any evidence, and has not been established. I do not accept the applicants’ claims that there is a real chance that Applicant one would be unable to find employment sufficient to sustain themselves and their family if they return to India.
Other matters
At hearing, the applicants also expressed concern that they would be arrested on return to India and questioned because they had lodged a protection claim in Australia. The applicants indicated that they had applied for a passport for their daughter, but it had been refused though they were not sure why. They were concerned that it was because of their visa application in Australia. Their evidence did not suggest that they had been informed of any such impediment. According to DFAT’s most recent report:
TREATMENT OF RETURNEES
5.20 DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. India does not have a centralised registration system in place to enable police to check the whereabouts of inhabitants in their own state, let alone in other states or union territories. The Department of Home Affairs is required to notify Indian authorities prior to the arrivals of removals from Australia but does not track returnees after their arrival in India. A February 2015 report by the UK Home Office considered it unlikely the police, or any person or body would be able to locate a person who had fled to another state or territory.
Exit and Entry Procedures
5.21 Returnees to India use either an existing passport, a newly issued passport, or an emergency certificate, issued through an Indian diplomatic mission. Documents are signed on the basis of a confirmed identity. In most cases, this is a straightforward process, but significant delays have been reported where the identity of the client could not be confirmed to the satisfaction of the passport officer in the Indian mission. The Indian Ministry of External Affairs has confirmed that identities are referred to the police authorities in the location of claimed origin of the returnee. This process is not always reliable, and significant delays have occurred in isolated cases.
Taking into account this country information, their written claims for protection (which do not relate to a fear of harm from the Government of India or of Punjab State) and the applicants’ evidence that they have not had a history of any dispute with the Government of India, I do not accept that the applicants face a real chance of serious harm (or any harm) from the Indian government because they have been outside the country for a long period or because they have sought protection in Australia.
The applicants also suggested that their daughter was vulnerable ‘if she was attacked’ because of her physical and intellectual health limitations. I accept that their child has special needs, but I do not consider that the information and evidence before me suggests that she would be subjected to ‘attack’ in India and I consider that this comment or claim is speculative. The child would be with them and she would therefore have her parents’ care and protection in India -just as she has in Australia. I reject any claim that the applicants face a real chance of suffering harm through a speculative attack on their daughter.
The applicants’ representative also submitted that, if they were to return to India, even if the applicants could relocate and re-establish themselves in a new area, they would be living ‘in fear all the time’ and that this fear would cause them serious harm. I consider that this claim is not established. The applicants returned to India in 2011 and at that time, experienced no adverse interest from Applicant one’s family. They confirmed that Applicant two’s family have not been harassed, questioned or had any contact with Applicant one’s family over the period that they have been outside of the country. In those circumstances, I do not accept as plausible the claim that the applicants would necessarily be living in fear of Applicant one’s family throughout India. I reject any claim that the applicants face a real chance of suffering serious harm because they would be ‘living in fear’ (or that they actually would be living in fear) throughout India.
When I met with the applicants, the COVID19 pandemic had not evolved. At the time of making this decision, the pandemic is very much a global crisis and I have considered the applicants’ claims for protection in the context of country experiences and shutdowns being reported across the world. I have taken into account that Applicant two is pregnant with their second child, due in April 2020. I accept that she is currently potentially vulnerable to Covid19 and that their daughter, who has significant health issues related to her premature birth, would potentially also be vulnerable to the virus. I consider that the pandemic is global and any chance of serious harm from the virus applies more or less equally to all citizens across the world (including here in Australia) particularly those with health vulnerabilities, and even if either applicant were to contract the virus in their home country, that could not be considered to be an act of persecution by any person or authority for one or more of the reasons in s.5J(1)(a) of the Act. I find that there is not a real chance that the applicants will suffer persecution in India due to the Covid19 pandemic.
I have considered the applicants’ claims both individually and cumulatively, and, whilst I have found that there is a real chance that either or both applicants will be persecuted in [Village 1] by Applicant one’s family or by people associated with them, I have found that the real chance of persecution for that reason does not relate to all areas of India, and, applying s.5J(4)(c), there is taken not to be a real chance of persecution in India for that reason. I have not accepted that there is a real chance of persecution of either or both applicants for any other reason in India. I conclude that the applicants are not refugees as described in s.5H because they do not satisfy the criterion in s.36(2)(a).
Complementary protection
I have considered the applicants’ claims under the complementary protection provisions, namely whether the applicants face a real risk of suffering significant harm as a necessary and foreseeable consequence of being returned to India.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
The applicants have confirmed that they would be able to access medical treatment for their own conditions and that of their daughter in India, noting that more treatment options would exist in larger cities, which would be a factor for them to consider on returning to India. I do not accept, based on the evidence before me, that there is a real risk that the applicants will suffer significant harm due to a lack of medical support and treatment for themselves (or their daughter) as a consequence of their return to India.
In relation to their claimed fear of harm from government or society in India because of their Sikh faith, I refer to and rely on the country information referred to above and my conclusions in relation to this aspect of their claims. I do not accept that there is a real risk that either or both applicants will suffer significant harm as a necessary and foreseeable consequence of them being returned to India because of their faith.
The applicants also raised a claim that they would be unable to sustain themselves in the event that Applicant one cannot find work if they are returned to India. I again refer to and rely on my discussion and reasoning in considering this claim under the refugee definition above. I do not accept that the applicants have established that there is a real risk that Applicant one would be unable to find work and sustain himself and his family as a necessary and foreseeable consequence of them being returned to India.
I have also considered the other matters raised by the applicants: namely their concern about being arrested due to having lodged protection claims in Australia, the vulnerability of their daughter ‘if attacked’, and the claim that they would be living in fear throughout India even if they relocated. I do not accept, for the reasons given above when discussing these aspects under the refugee provisions, that the applicants face a real risk of suffering significant harm for any of these reasons, considered individually and/or cumulatively.
I have also considered the impact of the global pandemic on the applicants under the complementary protection provisions. I refer to my discussion of this issue above. The risk of contracting the virus is one faced by millions of people around the world. I consider that the risk of suffering significant harm from a pandemic is one faced by the population of India (and all countries where it is occurring) generally and not faced by the applicants personally. Applying s.36(2B)(c), I find that there is taken not to be a real risk that the applicants (individually or jointly) will suffer significant harm due to the Covid19 pandemic as a necessary and foreseeable consequence of them being returned to India.
I refer to and rely on my discussion of the real chance of serious harm of the applicants by Applicant one’s family because of the ongoing property dispute if they were to return to [Village 1]. I accept there is a real risk that, if they return to the area of [Village 1], the applicants will be harassed, intimidated, abused and potentially subjected to serious physical assault and murder by members of Applicant one’s family or people associated with them. I accept that there is a real risk that they will suffer significant harm from Applicant one’s family (or their associates) in [Village 1]. I refer to my discussion about the localisation of the real chance of harm above in considering the refugee grounds and for the same reasons, I find that the real risk of significant harm from Applicant one’s family is localised to his home village and its’ surrounds and that the real risk of significant harm for that reason does not persist outside of their home village. According to s.36(2B)(a) there is taken not to be a real risk of significant harm in a country if it would be reasonable for the person to relocate to an area where there would not be a real risk that the person will suffer significant harm. I turn to consider whether it would be reasonable for the applicants to relocate within India to a part of the country where they would not face a real risk of significant harm.
Apart from their claim that Applicant one will be unable to find employment and sustain himself and his family in India (which I have not accepted), the applicants did not provide any other reasons why they could not relocate throughout India. I have considered their circumstances, including the impact of the pandemic on the reasonableness of relocation in India. The first applicant has skills as a [Occupation 1] and extensive experience working in foreign environments. I consider that Applicant one possesses valuable and employable skills in India and that the desire to find reliable work at a reasonable pay is a factor which would actually make it reasonable (if not actually desirable) for them to relocate within India to a larger city (distant from Applicant one’s family) on their return.
The applicants have support from Applicant two’s family, and I have considered the possibility that they may prefer to be closer to supportive family, particularly with two young children. According to the applicants’ evidence, Applicant two’s family live a considerable distance away from [Village 1] village, and even though they were located and Applicant one harassed there in 2008, I have found that there is not a real risk of them suffering significant harm there now or in the reasonably foreseeable future. I consider that subject to choices about employment and medical support, which might affect the choice of residence location, it would be reasonable for the applicants to relocate to an area near Applicant two’s family or within accessible distance thereof.
In any event, I have taken into consideration and accept their evidence that they would most probably choose to live in a large city where they could access any necessary specialist treatment for their daughter and where work opportunities are likely to be more readily available. Given the independence demonstrated by the applicants in living away from family and their home country in [Country 1] and now in Australia since 2002, I do not consider that, on return to India, they would necessarily need the financial or emotional support of Applicant two’s family.
I have considered DFAT’s most recent report which notes that India’s internal migration flows are substantial. The 2001 census recorded an estimated 307 million internal migrants in India.[4] DFAT notes that there are several factors which may limit options for internal relocation (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]. However, Applicant one confirmed that he speaks Punjabi, Hindi and English and I consider that he has significant work experience and capacity. He has also demonstrated resilience in living and working outside of his home country for almost two decades in foreign work environments. I have also found that there are not any grounds for believing that the applicants would suffer discrimination in employment opportunities or in the supply of government support due to their faith as Sikhs.
[4] DFAT Country Information Report: India 20 October 2018 at 5.15.
[5] Ibid at 5.16 and following.
At the time of making this decision, the borders and cities in India are locked down (as they are throughout the world), meaning that travel throughout the country would be problematic and most likely subject to some inhibition. I have given consideration to the impact of the pandemic on the capacity of the applicants to relocate in India. However, they would be currently unable to return to India due to pandemic travel restrictions in place. Accordingly, I consider that I must assess the reasonableness of their relocation in India on the assumption that they would be doing so after the current Covid19 crisis has eased and once travel to and from the country (and within it) is available once again. Therefore I consider that the existence of the virus is simply one of a number of factors that the applicants will consider in deciding where to live in India if they are returned there – but that it does not practically render relocation throughout India (and away from [Village 1]) unreasonable, now or in the reasonably foreseeable future.
I accept that limitations on work and support for their daughter’s condition may impact on their choices of location on return to India but I am satisfied that it is reasonable (in the sense that it is practicable and may even be desirable) for the applicants to relocate to an area in India where they could potentially find work and necessary medical care for their daughter. I have found that the real risk of significant harm is restricted to [Village 1] and its immediate environs.
Considering the applicants’ circumstances, the country information and the material before me as a whole, I find that it would be reasonable for the applicants to relocate to an area of India where they would not face a real risk of suffering significant harm. There is therefore taken not to be a real risk that the applicants will suffer significant harm in India and the applicants do not satisfy s.36(2)(aa).
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Anne Grant
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 1543

20 April 2020

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction