1621662 (Refugee)

1621662 (Refugee) [2019] AATA 4993 (31 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621662
COUNTRY OF REFERENCE:                  India
MEMBER:Hugh Sanderson
DATE:31 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 October 2019 at 10:34am
CATCHWORDS
REFUGEE – protection visa – India – threats from members of the family of former wife – damage to reputation as a result of divorce – inconsistent evidence – delay in applying for protection – delay in making key claims – 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 28 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 4 August 2015. The delegate refused to grant the visa on the basis that the applicant’s claims were not credible and he did not face any real risk of harm if he returned to India.
Background
The applicant is a citizen of India and is currently [age] years old. He first entered Australia [in] September 2009 on a [Student] visa. He held that visa on the basis of being a member of the family unit of his wife, [Ms A], who was studying in Australia.
It was claimed that soon after they arrived in Australia the applicant’s relationship with [Ms A] ended and she left him. She applied for a divorce with the divorce order made [in] February 2011, becoming absolute [in] April 2011. [Ms A] advised the Department that her relationship with the applicant had ended and the Department cancelled the applicant’s Student visa on 31 August 2011. He remained in Australia as an unlawful non-citizen.
The applicant applied for a Partner visa on 3 September 2013 on the basis of being in a de facto relationship with [Ms B]. He claimed the relationship began on 16 May 2012. As the applicant did not hold a substantive visa at the time of the application he was required to provide compelling reasons for not applying the Schedule 3 criteria. He claimed that he was not aware that his Student visa had been cancelled and that he had now been in a relationship with his sponsor for more than two years. He claimed he did not know about the Schedule 3 requirement when he applied for the Partner visa. He did not provide any other information as to any other compelling reason for not applying the Schedule 3 criteria.
The Department refused the Partner visa application on 28 August 2014. The applicant applied for a review of that decision to the Tribunal. He withdrew that application on 2 July 2015 stating that his relationship with [Ms B] had ended.
The applicant applied for the current visa on 4 August 2015. In his application he made the following claims:
·[Ms A] blamed the applicant for torturing her and ending their relationship and her parents became very angry with him;
·[Ms A]’s parents have threatened him for mistreating their daughter;
·[Ms A]’s parents are politically very influential and also have links with underground criminals who can kill the applicant on their orders; and
·[Ms A]’s parents have so much influence both politically and with underground criminals they can use that influence with the federal government to demolish him in any part of India and can have him killed as soon as he comes out of an airport.
The applicant provided a statement from his mother where she made the following claims:
·[In] February 2011 two big cars full of people armed with swords came to their compound and started to destroy all household items;
·Among the people who attacked their compound were [Ms A]’s uncle and her brother who were saying they wanted to kill the applicant;
·The applicant’s mother called the police and made a statement;
·The applicant’s mother called the applicant and it was only then that she found out that his relationship with [Ms A] had ended;
·In March, [Ms A]’s uncle and brother again destroyed and damaged their property and two people who were dressed as police stood by and watched what was happening without doing anything and then said that they would shoot the applicant if they see him and they would take away the applicant’s mother’s two granddaughters and they would not be able to do anything;
·The two police also said that nothing would happen to the report that was filed [in] February 2011 (sic);
·When the applicant’s mother enquired with the police two days later, the police told her there was no report on the record of the event [of] February 2011 (sic);
·They have not filed any further report as they are scared of the police; and
·She believed if the applicant returned to India his life will be destroyed.
A statement was provided from [Mr C], the applicant’s brother-in-law, claiming that there had been a dispute between the applicant and [Ms A] and if he returned to India he risked harassment, torture and death because gangsters are increasing every day so the position of Punjab is very critical.
The applicant was interviewed by an officer from the Department. Further documents were provided including a statement from [Mr D], two newspaper articles and a video link to a report about the murder of a Punjabi boy by gangsters.
One newspaper clipping was provided from Hindustan Times dated 8 May 2016 headed ‘Punjab cops chalk out plan to rein in gloating gangsters’ and an article from an online site, ‘Daily O’, in relation to a gangster who was killed in Punjab and claiming that ‘gangsters rule the roost in Punjab’.
The statement from [Mr D] dated 15 November 2016 made the following claims:
·[Mr E], the father of the applicant’s former wife, and his uncle have a very close relationship with gangsters in Punjab and promote Hinduism and are against any other forms of religion;
·They are well known for their illegal and criminal activities which are covered because of their relationship with politicians and high-profile figures that financially support them;
·The deponent has seen them attacking innocent people and destroying property and belongings;
·They have on many occasions attacked the applicant’s family house and threatened to kill the applicant, believing he has returned to India;
·[Mr E] wants to kill the applicant because he believes he has ruined his daughter’s life and their reputation in society by divorcing her; and
·If the applicant returned to India it would be very dangerous for him.
The applicant provided a copy of the Department’s decision to the Tribunal. The delegate who considered the application noted the following:
·In the statement by [Mr D] it was claimed the applicant faced a threat from [Ms A]’s brother and uncle as they promote Hinduism against any other religion and the applicant is a Sikh;
·This claim had not been raised previously by the applicant;
·There was no information which would indicate Sikhs are at risk in India due to their religion;
·The delegate was not satisfied there was a real chance the applicant would face persecution on account of his religion if he returned to India;
·The applicant’s claims were brief, vague and unsubstantiated;
·The applicant provided inconsistent and implausible claims about the threats he faced from the family of [Ms A];
·There was no plausible reason why [Ms A]’s family would want to harm the applicant, particularly when [Ms A] had remarried and she was bringing her new husband to Australia;
·There was no plausible information which would indicate that any of [Ms A]’s family were involved in politics or gangs;
·The applicant delayed bringing any application for a Protection visa despite claiming his family had been attacked in February 2011 by [Ms A]’s family; and
·The delegate did not accept any of the claims made by the applicant.
Accordingly, the delegate was not satisfied there was a real chance that the applicant would face persecution on account of his religion if he returned to India in the reasonably foreseeable future. Further, the delegate was not satisfied there is a real risk the applicant would suffer significant harm if he returned to India. As such, the application was refused.
Information to the Tribunal
The applicant provided a statement to the Tribunal where he made the following claims:
·His fear of persecution is real and the revenge killing threats have continued unabated;
·He cannot relocate in India because his persecutors are politically very influential with links to underground criminals;
·State police protection is a farce and ineffective in Punjab; and
·The applicant has now married an Australian citizen and they have a child together and his wife and child are dependent upon him.
The applicant provided a further statutory declaration to the Tribunal where he repeated his claims. He said that after he married his current wife [in] February 2015 he was advised by his wife to apply for a Protection visa. He had a child with his wife on [date] and his wife has serious health problems. They applied for a Partner visa but in doing so were blocked as the applicant could not lodge a further Partner visa application in Australia.
The applicant appeared before the Tribunal on 23 October 2019 to give evidence and present arguments. The applicant’s current wife, [Ms F], and his nephew, [Mr G], also gave evidence. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. As the applicant spoke English, the hearing was conducted primarily in English.
The Tribunal commenced the hearing by explaining to the applicant the process under s.424AA of the Act. The Tribunal explained to the applicant it would be putting information to him which would be the reason, or a part of the reason, for affirming the decision under review. It would explain what the information was, why it was relevant and then invite him to comment on or respond to the information. If he required more time, he could request an adjournment.
The applicant said that his mother [and siblings] continue to live in Punjab. He said that one brother was a [Occupation 1] owning his own [business]. His other brother was a [Occupation 2] with [Employer 1] and had been part of that [organisation] since 1992. He was married with a son who was a student in Punjab. He said that his mother lives with her son who was with the [Occupation 2] and also her daughter-in-law and grandson.
The applicant said that he first heard about the threats being made against him by [Ms A]’s family in May 2011. He said that his sister’s husband called him to say that he had been threatened by [Ms A]’s uncle and brother for bringing shame to their family by leaving [Ms A]. He said that despite speaking to his mother about twice a week his mother did not say anything to him about these threats. He said that his mother did not know anything about the end of his relationship with [Ms A] until 2015 when the applicant married his current wife.
The applicant said that no one from [Ms A]’s family has contacted him directly. He said that the people who had contacted him to tell him of the threats were his brother, who works for [Employer 1], and his sister’s husband who had arranged the marriage. The applicant said the last time a threat had been made was in 2015 or 2016. He said the uncle of [Ms A] had contacted his sister’s husband and threatened him about the applicant.
The Tribunal asked the applicant who [Mr C], who had provided a statement in support of the application, was. He said that he was his sister’s husband. The Tribunal asked the applicant who [Mr D], who also provided a statement, was. The applicant appeared confused and did not know who that person was. He believed that the Tribunal may be referring to [Mr H] who is the brother of [Ms A].
The applicant said that [Ms A] had got married to [Mr I] in 2011 or 2012 in Punjab and they were now living in Australia. He believed they had two children. The applicant gave a confused answer when he was asked when he stopped living with [Ms A]. He said that he stopped living with her in 2009 and she moved out of the house but they would talk to each other over the phone until mid-2010. He confirmed they were divorced on [Ms A]’s application in February 2011.
The applicant said that he has no strong political ties and has no strong connection with any religion. The Tribunal noted he claimed that [Ms A]’s family had connections with the Rashtriya Swayamsevak Sangh (RSS) political party. He said that this was true and this showed that they have political power to control what he does. He said that the fact that they were aligned with RSS did not mean he would face persecution for any of his political, religious, or any other beliefs he held.
The Tribunal asked the applicant to provide details of the threats that had been made by [Ms A]’s family against his family in Punjab. He said that they would sometimes telephone his brother or his sister’s husband and make threats against him. He said that sometimes they came to his home. He said that they would be drunk and they were playing loud music from their cars and making lots of noise. He said that they will be yelling to his neighbours that they will get him if they find him. He said that they stayed outside the front of the house and did not enter the house at any time.
The Tribunal put to the applicant that the claims being made were not plausible. The Tribunal noted it was [Ms A] who left the marriage and who had applied for the divorce in February 2011. She had now remarried in 2011 or 2012 in Punjab and her husband and two children are now living in Australia. There would be no reason why her family would threaten the applicant. The applicant claimed that [Ms A] had brainwashed her family into believing that he was the cause of the end of the marriage which was why they were threatening him. He said that it was an arranged marriage and her family had blamed him for the marriage ending.
The Tribunal noted the applicant claimed the alleged threats only commenced in May 2011 which was after [Ms A] had divorced the applicant and had been separated from him for about two years. The applicant claimed that it was only when [Ms A] returned to India that she told her family she was divorced and had poisoned their minds against him that the problems started.
The Tribunal noted the applicant had provided a statement from his mother which claimed that [in] February 2011 she had been attacked by [Ms A]’s brother and uncle who came in “two big cars full of people (all men) armed with swords. They came in our compound and started to destroy all household items”. This was inconsistent with the claims now being made by the applicant which were that the threats only commenced in May 2011 and his mother was unaware of the end of his relationship with [Ms A] until 2015 when he married his current wife. This undermined the claims that were being made by the applicant of any threats being made against him by [Ms A] or her family.
The applicant said that there was too much noise and that his mother did not know what it was about and it was only in 2015 after he got remarried that she knew that his relationship with [Ms A] had ended. He said the people had come to the house as a warning.
The Tribunal referred to the process under s.424AA of the Act referred to above. The Tribunal referred to the information provided by the applicant in respect of his Partner visa application when he was sponsored by [Ms B]. When the Department requested him to provide information regarding any compelling reasons for not applying the Schedule 3 criteria which would require him to return to India to file an offshore Partner visa application the only issues he raised were that he did not know his visa had been cancelled, he did not know anything about the Schedule 3 criteria when he filed his application and that he had been in a relationship with [Ms B] for more than two years. The fact that he did not raise any issue in June 2014 that he faced any threat or feared any harm if he returned to India indicated that the claims he is now making are not credible.
The applicant said that he did make a claim that he faced threats in India. The Tribunal noted the information from the Department indicated he did not raise any other reason why he would not be able to file an offshore Partner visa application in India. The applicant then said that [Ms B] did all the paperwork which was why it was not mentioned.
The applicant confirmed that the only reason he could not return to India was due to the threats from [Ms A]’s family. He confirmed the last threats had been made to his family in 2015. He confirmed that he had not had any direct contact with [Ms A] or her family since 2010. He said that his nephew is applying for a Protection visa as well on the basis that he is also being threatened by [Ms A]’s family.
The applicant’s wife gave evidence in support of the application. She said that she had travelled to India and spent time with the applicant’s family in Delhi about three months prior to the hearing. She said she had also travelled in 2016 and spent time with the applicant’s family in their home village. She said that on one occasion she was travelling on a train with members of the applicant’s family and people approached them who were dressed up as police. She said they started harassing the applicant’s brother, who works for [Employer 1]. She said that she was introduced only as a family friend. The people harassing them were threatening the applicant and saying they were looking for him and threatening to harm him if they found him.
The Tribunal noted that the applicant had not referred to this event in his evidence and had given evidence that the last time any contact had been made by [Ms A]’s family with his family was in 2015. The applicant’s wife gave a nervous response saying she did not know why he would not have referred to her experience in India. She said that she was aware that on other occasions people had come to the house and assaulted his mother. She confirmed that the applicant’s mother was living with her son who is a [Occupation 2] of [Employer 1] in Punjab.
The applicant’s nephew gave evidence. He said that he came to Australia on a Visitor visa and was now applying for a Protection visa. He said that some of his friends were with the BJP and they got into a fight with supporters from the Congress Party. He claimed that for this reason he could not return to India. The Tribunal noted that BJP had won the last two national elections in India and as a supporter of the BJP this would not appear to be a reason he could not return to India. The applicant’s nephew said that it was because he had a fight with people from the Congress Party.
The applicant’s nephew claimed that [Ms A]’s family had spoken to the applicant’s family in Punjab and threatened him. He said that they had broken into the house breaking the door and the applicant’s family in India had suffered two beatings from [Ms A]’s family. He said the applicant’s mother had been beaten up. He said that they had pushed her around and her spine was broken and she had to go to hospital. He said that he believed this happened in 2011, but was not sure.

The applicant gave evidence again. The Tribunal referred to the process under s.424AA of the Act set out above. The Tribunal referred to the evidence of his nephew claiming that his mother had been assaulted to such an extent that her spine was broken and she had to go to hospital in 2011. This was inconsistent with the information being provided and undermined the credibility of the claims being made. The applicant said that his family had never told him about this and his family had never said that his mother had been in hospital.
The Tribunal referred to the evidence of the applicant’s wife where she claimed that she had witnessed threats being made to the applicant’s family in Punjab in 2016. This was relevant as the applicant had not indicated in the evidence he had given the Tribunal that his current wife had witnessed any threats made against him and undermined the credibility of both the applicant and his current wife. The applicant claimed that he forgot about this because the Tribunal had not been talking to him about threats made against anyone else apart from his family.
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 s.5J(2)–(6) and ss.5K–5LA, 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.
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
On the basis of the applicant’s identity documents, including his passport, the Tribunal accepts the applicant is a national of India. Therefore, for the purposes of s.36(2)(a) of the Act the Tribunal accepts that India is the country of nationality for the purposes of s.36(2)(aa) of the Act and the Tribunal accepts that India is the receiving country.
For the reasons set out below, the Tribunal does not accept the claims made by the applicant that he has been threatened in India by any person or group or any claims he has that he fears any person or group in India should he be required to return there.
Inconsistencies in the claims made
The basis of the applicant’s claim for the Protection visa is that members of the family of his former wife, [Ms A], have threatened his family members who continue to live in India claiming that if he returns to India they will attack or kill him. The basis of this claim is that [Ms A] has brainwashed her family into believing that the applicant caused the end of his marriage with [Ms A] and that he had ruined [Ms A]’s life and brought shame to her and her family.
The applicant stated at the hearing that no direct threat has ever been made against him by [Ms A] or any member of her family or anyone else. The reports of the alleged threats made against him have only been made through members of his family or other people. The claims made by the applicant in his application are vague and general. They do not provide any particulars of the threats or any incident which would indicate that any claimed threat has ever genuinely been made.
That the applicant claimed that he received no direct threat from [Ms A] or any member of her family is inconsistent with the statutory declaration provided by the applicant to the Tribunal dated 14 October 2019. In that statutory declaration he claimed that during the period of his marriage to his current wife he was “receiving endless threatening calls from India that made our lives a living hell”. This is in direct contradiction to the information provided by the applicant at the hearing which was that he had not received any direct threats and was only reporting what his family in India had told him. If the calls were being made by his family telling him of threats made by [Ms A]’s family to them, the Tribunal does not accept he would have described the calls in the manner he did in that statutory declaration. When the applicant’s wife gave evidence, she did not refer to any calls being made from India but said the only threat she knew of was when she was in India in 2016. The Tribunal does not accept the applicant has ever received from [Ms A] or her family or any other person a direct threat for reasons he claims he fears returning to India.
The Tribunal accepts that as the applicant claims he is only reporting threats that have been made against him to other people he may not have all the details of those threats. If the alleged threats had been made, however, the Tribunal does not accept that the applicant would not want to know exactly what had happened when the alleged threats were made and have clarified the threats and any behaviour of the family of [Ms A] when those threats were made. Apart from the general nature of the claims made by the applicant there are significant inconsistencies in the claims made by the applicant and witnesses he has relied upon to support his application which leads the Tribunal to conclude that the claims made are not genuine.
The applicant, in his evidence before the Tribunal, claimed that the first threats were made by [Ms A]’s family in May 2011. He claimed that his mother was not aware of the end of his relationship with [Ms A] or any alleged threats made against him by her family until 2015 when the applicant married his current wife. He claimed that he has always spoken to his mother regularly, about two times each week.
This is inconsistent with the information the applicant’s mother provided in a statutory declaration in support of the application. In that statement, the applicant’s mother claims that she was the victim of an assault [in] February 2011 when the threats were made by the brother of [Ms A] and her uncle and a group of other men threatening to kill her son. She claimed that she had spoken to her son about what happened and he told her that [Ms A] had ended their relationship and left him.
The Tribunal does not accept that if the alleged incident [in] February 2011 occurred that the applicant would not have stated this at the hearing before the Tribunal. The fact that he claimed that the first threats were made against his family in India in May 2011 indicates that the event in February 2011 never occurred. The fact that the applicant claimed his mother did not know about the end of his relationship with [Ms A] or any threats made against the applicant by her family until 2015 supports the finding that this alleged incident in February 2011 never happened and no threats were ever made by [Ms A]’s family or anyone else against the applicant. It undermines the credibility of both the applicant and the claims made by his mother.
The applicant before the hearing claimed that the threats were made by people coming to his house who would be drunk and playing loud music and yelling at the house that if they find the applicant they will get him or kill him. He claimed that they always stayed outside the house and did not enter the house at any time. This is inconsistent with the claims made by the applicant’s mother in her affidavit which claimed that they came into her compound and started to destroy all household items. She claimed that when she reported the matter to the police, they attended the home and saw the condition of their house. She claimed [Ms A]’s brother and uncle returned in March and repeated destroying and damaging her property.
The Tribunal does not accept that if the alleged threats had occurred that the applicant would not be aware that the people making those threats had entered his mother’s property and destroyed household furniture.
Evidence was given by the applicant’s nephew that the applicant’s mother was assaulted on one occasion when these threats were being made to such an extent that she suffered a broken spine and had to be admitted to hospital. He was not able to say when this occurred, but believed it was in 2011. Again, this is inconsistent with the claims made by the applicant which were that his mother did not know anything about the end of his relationship with [Ms A] or the threats being made by [Ms A]’s family against him until 2015. It is also inconsistent with the claim made that the threats did not extend to any physical assault against any of his family members in India. This gives further weight to the finding that the claims being made by the applicant and the support given by members of his family are not credible and that no threats have ever been made against the applicant by any members of [Ms A]’s family or any other person.
The applicant claimed the last threats had been made against any member of his family from [Ms A]’s family in 2015 or 2016. He did not refer to any threat being made in the presence of his current wife when she was in India in 2016. This is inconsistent with the information provided by the applicant’s wife which was that when she was visiting India in 2016 and was on a train with the applicant’s brother that they were approached by people in police uniforms and they made threats against the applicant.
If this event occurred, it shows a continuing course of behaviour by the family of [Ms A] in making threats to the family of the applicant in India. This is inconsistent with the claim made by the applicant that he had not been advised of any threats made by the family of [Ms A] against any members of his family in India. The Tribunal accepts that if constant threats were being made by [Ms A]’s family to the applicant’s family in India they may not have advised them of all these threats, however, the Tribunal does not accept that if the applicant is in regular communication with his family in India, which he claims he is, that he would not be aware of continuing threats.
The applicant claimed that he did not mention the threat made to his brother while his wife was in India because he forgot about it and the Tribunal had not asked him about threats being made against anyone else apart from his family. The evidence of the wife was that the threat was made against a member of his family, that being his brother, as she was only introduced as a friend of the family and the threat was not made directly to her. The Tribunal does not accept that if the applicant’s wife had been a witness to a genuine threat made by family members of [Ms A] to the applicant’s brother against the applicant that he would not have advised the Tribunal of that threat. That he forgot about this undermines the claims made by the applicant and his wife or that any threat has ever been made.
As indicated above, the statement made by the applicant’s mother is inconsistent with the information that has been provided by the applicant as to the threats that have been made and the manner in which they have been made and when his mother became aware of when the applicant’s relationship with [Ms A] ended. The Tribunal does not accept that the affidavit provided by the applicant’s mother is a truthful document or accurately sets out any threat made by the family of [Ms A] against the applicant or any other claim made in that affidavit.
The statement from [Mr C], the applicant’s brother-in-law, is vague and general. Although the applicant claimed that it was Mr [C] who arranged his marriage to [Ms A] and had been the person to whom [Ms A]’s family had directed their threats against the applicant, the statement provides no particulars or credible information that those threats have been made. The statement, made on 7 November 2016 is that the dispute “is still today”. As stated above, the applicant claimed the last threat had been made by the family of [Ms A] to his family in India in 2015 or 2016. If the applicant faced any threat from the family of [Ms A] the Tribunal would expect that Mr [C] would be able to provide greater detail of the nature of those threats and why they would be credible. The Tribunal does not accept the statement from Mr [C] provides any support that the applicant has any genuine fear for his safety due to any threats from the family of [Ms A] or anyone that may be associated with them.
After the interview with the Department, the applicant provided a statement from [Mr D]. The applicant was unable to identify who this person was. Even after the name was spelt to the applicant by the Tribunal, he believed the Tribunal may be referring to the brother of [Ms A]. As the applicant did not know who [Mr D] was, this calls into question what relationship he has with the applicant and why he would be aware of threats being made by the family of [Ms A] against the applicant. It undermines the credibility of any information provided in his declaration.
[Mr D] also raised a claim that as the family of [Ms A] are members of RSS and promote Hinduism against any other religion in India this may be a factor to consider. This was not raised by the applicant who said that there was no issue between himself and the family of [Ms A] due to any religious or political beliefs. The applicant indicated that he did not hold any strong religious or political beliefs. The Tribunal discusses this claim below.
The claims made that the family of [Ms A] wish to harm the applicant due to their marriage failing are not plausible in the circumstances of the parties. It was claimed that the family of [Ms A] have been brainwashed by her into believing the cause of the end of the relationship was the fault of the applicant. It was claimed that her family believed that the applicant had ruined their daughter’s life and their reputation in society by divorcing her. The facts of the end of the relationship between the applicant and [Ms A] and her current situation do not support this claim.
The evidence of the applicant is that it was [Ms A] who ended the relationship with the applicant. As the applicant was dependent upon the continuing support of [Ms A] to remain in Australia as a member of her family unit, the person who faced greater repercussions from the end of the relationship was the applicant and not [Ms A]. It was [Ms A] who applied for the divorce. As the divorce order was made [in] February 2011, becoming absolute [in] April 2011, the application must have been filed not later than early January 2011. It was not a case of [Ms A] being reluctant to divorce the applicant. [Ms A] remarried in India to an Indian national. The applicant believed the wedding took place in Punjab in 2011 or 2012. This would indicate that the marriage was done with the blessing and support of [Ms A]’s family. The applicant understands that [Ms A] is now living permanently in Australia with her husband and they have two children together.
The Tribunal accepts that being a divorced person in India carries some social stigma. The rates of divorce in India are about one in 1000 marriages, compared to one in three marriages in Australia, although the rates in India are increasing.[1] Rather than ruin the life of [Ms A], based on the evidence of the applicant the end of the relationship between the applicant and [Ms A] appears to have been of benefit to [Ms A]. She was able to get married again in 2011 or 2012, soon after the divorce. She now resides in Australia with her husband and two children. The marriage with her husband, which took place in Punjab, appears to have been done with the blessing of her family. As she was able to remarry soon after her divorce, [Ms A] does not seem to have suffered any social stigma or loss of reputation. There appears to be no reason why, if [Ms A] divorced the applicant in Australia in 2011 and how her life has progressed since then, her family would have any issue with the applicant.
The applicant has claimed that the family of [Ms A] are involved in politics and specifically with RSS which is a right-wing Hindu nationalist organisation. Apart from the claims made by the applicant and his witnesses, there is nothing to support this claim that [Ms A] and her family have any association with any political party. As the marriage between the applicant and [Ms A] was an arranged marriage with the consent of both families, it indicates the family of [Ms A] did not have any objections to the applicant or his family for not being Hindu or for any of their political allegiances.
The applicant has stated that the fact that he claims the family of [Ms A] are involved with RSS does not mean that he faces any persecution because of his religion or political ideology or for any reason set out in s.5J(1) of the Act. He makes the claim only to support the argument that he cannot get protection from the authorities because of the political connections of the family of [Ms A].
For the reasons set out in this decision, the Tribunal does not accept any of the claims made by the applicant that he has been threatened in any way by the family members of [Ms A] for any reason. The Tribunal does not accept that the family of [Ms A] have any political sway or connections that would prevent the applicant from lodging a complaint with the appropriate authorities if any threat were made.
The applicant claimed to the Tribunal that the threats made against him by the family of [Ms A] commenced in May 2011. It is noted in the statement from the applicant’s mother that she alleges she was assaulted and the threats were made against her son commencing in February 2011. The current application was not filed until after the applicant had been refused a Partner visa in 2014 on the basis of his sponsorship by [Ms B] with the applicant withdrawing an application for a review of the decision of the Department to refuse that application after he claimed [Ms B] had ended her relationship with him.

The applicant claimed in his statutory declaration sworn 14 October 2019 that his current wife advised him to lodge the Protection visa application as he was “receiving endless threatening calls from India that made our lives a living hell”. That application was lodged in August 2015. The applicant claimed that his family had not received any continuing threats from the family of [Ms A] since 2015 or 2016, more than three years before this decision. There is no adequate explanation as to why, if the threats against the applicant had commenced in 2011, the applicant had not applied for a Protection visa before 2015.
When the applicant lodged his Partner visa application in August 2013 he did not hold a substantive visa and did not satisfy the Schedule 3 criteria. He was invited to provide compelling reasons for not applying those criteria. The applicant did not, at that time, make any allegation that he could not return to India as he was being threatened by the family of [Ms A] and he believed that if he returned to India he would face harm.
When this information was put to the applicant at the Tribunal hearing, the applicant initially claimed that he did make this claim. He then claimed that as [Ms B] prepared the application this information was not included. The Tribunal does not accept this. The applicant would have been required to certify all information provided in that application was true and correct. If the applicant was relying on [Ms B] to prepare documents on his behalf he would have told her about any reason he could not return to India to file an offshore Partner visa application. The applicant had the opportunity to provide this information to the Department at that time but did not do so.
The Tribunal does not accept that if the applicant had been subjected to threats of violence from the family of [Ms A] from 2011 that he would not have applied for a Protection visa at that time. When he applied for the Partner visa, he was specifically required to provide information as to compelling reasons why he should not be required to return to India to file an offshore Partner visa application. That he did not raise any claim that he faced any threat of violence for any reason if he returned to India indicates the claims now being made in support of this application are not genuine.
The Tribunal has considered all the circumstances claimed by the applicant both individually and cumulatively. The Tribunal does not accept the claims made by the applicant and finds the claims made are not true and have only been made to support the current application and for no genuine reason. The Tribunal does not accept that the family of [Ms A] have ever threatened the applicant either directly or through any of his family members in India for any reason at all. The Tribunal does not accept that the family of [Ms A] or anyone associated with them have any interest in the applicant or that if he returned to India they would cause him any harm for any reason.
The applicant stated that he had remarried and now has a child of that relationship. The applicant’s wife and child travelled together to India in 2016. They spent time with the applicant’s family in India. There is no information that would indicate that the fact the applicant has remarried and has a child of that relationship would cause the applicant to have a well-founded fear of persecution or that he would face a real risk of suffering any harm if he returned to India. No claim has been made that the fact he is now married with a child would be the basis of any claim that he would face harm in India.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hugh Sanderson
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.
…
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.
…
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.
…
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.
…

[1] DFAT Country Information Report – India, 17 October 2018 para 3.43, p 18.

[2019] AATA 4993

31 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction