1621933 (Refugee)

1621933 (Refugee) [2020] AATA 4486 (8 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621933
COUNTRY OF REFERENCE:                   India
MEMBER:Catherine Carney-Orsborn
DATE:8 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 October 2020 at 3:27pm
CATCHWORDS
REFUGEE – protection visa – India – divorced man – fear of harm from ex-wife and her family – wife pregnant with another man’s child and now married to father of child – ex-wife’s new father-in-law’s political connections – credibility concerns – inconsistent evidence – arranged marriage – rehearsed evidence – delay in applying for protection – 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 dependants.
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 2 December 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, first arrived in Australia [in] June 2007 as the holder of a [student] visa. The applicant applied for [another Student visa] as a dependant on 4 August 2008, before departing for India [in] October 2008. The applicant returned to Australia [in] February 2009 and was granted the [dependant] visa on 3 March 2009. The applicant departed Australia for India [in] August 2009 and returned [in] April 2010. The applicant was granted a further [student] visa on 9 October 2010. The applicant departed for India [in] July 2011 and returned to Australia [in] September 2011. The applicant was granted a [different] student visa on 14 December 2011, which ceased on 10 September 2012. The applicant applied for a [remaining relative] visa on 2 April 2015, which was refused on 18 May 2015. The applicant applied to the Tribunal for review of the decision on 11 June 2015, and the Tribunal affirmed the decision on 1 July 2015. The applicant applied for judicial review of the decision, but this was found to be out of time.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 3 September 2015. On 2 December 2016, the delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant faced harm in India, and that India would be able to provide the applicant with sufficient protection. The applicant applied to the Tribunal on 21 December 2016.
The issues that arise on review are whether the applicant is owed Australia’s protection under either the refugee criterion or complementary protection criterion.
Due to COVID the hearing was held via video link.
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.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The Department file contains various documents including the application for protection forms, a marriage certificate for the applicant and [Ms A] dated [in] July 2008, an Australian divorce order between the applicant and [Ms A] dated [in] October 2012, a copy of the applicant’s passport, an application for a bridging visa, and a copy of the delegate’s decision record.
The applicant claims that he will be persecuted by his ex-wife and her family based on their divorce.
The following information is provided by the applicant in his application for protection forms.
The applicant was born on [date] in [Town 1], Kapurthala, Punjab State, India. The applicant is a Sikh of Punjabi (Sikh) ethnicity, who speaks, reads, and writes English and Punjabi. The applicant married [in] July 2008 and divorced [in] October 2012. The applicant’s father and mother reside in India, and the applicant’s sister resides in Australia.
The applicant states that he went to India. The applicant returned to India from Australia [from] October 2008 [until] February 2009 due to health issues. The applicant returned to India from Australia [from] August 2009 [until] April 2010 due to bad health. The applicant last went to India [from] July 2011 [until] September 2011 in order to resolve family issues. The applicant has otherwise been residing in Australia.
The applicant lived at one address in Punjab from birth prior to coming to Australia.
The applicant completed primary school and secondary school up to Year [level] at [Secondary School], [Town 1] from January 1994 until March 2006. The applicant then began studying Years [levels] at [a] College Sydney in July 2007 and withdrew in October 2008.
The applicant worked in [Occupation 1] at [Employer 1] from October 2007 until October 2008. The applicant was unemployed from October 2008 until March 2009. The applicant then worked as [an Occupation 2] for [Employer 2] from March 2009 until August 2009. The applicant was unemployed from August 2009 until May 2015. The applicant then worked as [an Occupation 3] for [Employer 3] from May 2014 until February 2015. The applicant has been unemployed since.
The applicant claims that he has been residing in Australia since 2007. The applicant got married and started a life here. The applicant and his wife began having issues and went back to India to resolve them. The applicant’s in-laws were not ready to listen to him and started threatening him. The applicant did not feel safe and left the country.
The applicant attempted to explain to the family that his wife was carrying someone else’s child. They did not listen to the applicant and began abusing and threatening him. Apart from his ex-wife and her family, other people also began to put the applicant down and he suffered from depression and anxiety.
The applicant fears that his ex-wife and her family will kill him. The applicant claims that they have threatened him many times already. The applicant also claims that he is suffering from bad depression and that he would die because of all the society talk. The applicant’s parents have also disowned him, and he has no one to be with. The applicant’s sister in Australia still talks to him.
The applicant states that, in India, divorcing a woman is a prominent social issue. The applicant states that ‘they’ will make fake allegations in society, and the applicant will lose all of his social life. The applicant’s parents have disowned him after the accident[1], and the applicant would be harmed in every way, such as physically, mentally, and socially.
[1] The delegate’s decision record indicates that the applicant meant to write ‘incident.’
The applicant has not sought protection from the authorities. The applicant does not believe they can provide him with a safe feeling 24/7, and the applicant is scared so he never went back since he was divorced. The applicant also claims that bribery and corruption are rampant in India, authorities can be easily bought, and he has been in Australia since he was [age] and does not know the Indian system.
The applicant did not attempt to relocate within India, as he has been residing in Australia since he was [age] years old and had a valid Australian visa, so he returned to Australia rather than going to an unknown part of India. The applicant states that ‘they’ could also have found the applicant anywhere. The applicant states that moving to another state in India would be like moving to another country and having to learn a new language and way of life.
COUNTRY INFORMATION
The Department of Foreign Affairs and Trade (DFAT) Country Information Report – India, dated 17 October 2018, provides the following information on marriage and state protection in India:
India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal. India has no centralised system for marriage registration. Some states require marriages to be registered by law. Couples may seek to marry under one of India’s personal religious laws, which have been codified according to the requirements of different religions. The Special Marriage Act (1954) is an alternative to each of the various religious personal laws. The Act is available to all citizens who choose to marry outside their faith, and the religion of the parties to an intended marriage is immaterial under the Act.
Arranged marriages continue to account for the overwhelming majority of marriages across India. Parents or other family members often assume sole responsibility for deciding whom their children marry, particularly in northern India. Many parents consider arranging a marriage for their children a right and a duty, and may not accept their son or daughter choosing their own spouse. Women face social pressure to marry by their mid-20s and men by their mid-30s. Around one in 1,000 marriages in India ends in divorce, compared with around one in three in Australia, although rates are increasing.[2]
[2] DFAT, Country Information Report – India, 17 October 2018, p. 18, paras [3.42] – [3.43].
In regards to police and the judiciary, the DFAT report notes the following:
Each state and union territory maintains a separate police force. NCRB data records a total of 1.7 million officers of all ranks across India in 2013. The central government recruits and manages the Indian Police Service, which posts officers to senior positions within state police forces. The central government oversees national armed police organisations: the Assam Rifles, the Border Security Force, the Central Industrial Security Force, the Central Reserve Police Force, the Indo-Tibetan Border Police and the National Security Guards. It is also responsible for the Bureau of Police Research and Development, the Central Bureau of Investigation (corruption investigation agency that reports directly to the prime minister), the Directorate of Coordination of Police Wireless, the Intelligence Bureau, the National Crime Records Bureau, the National Institute of Criminology and Forensic Science, and the National Police Academy.
The processes of recruitment, transfer, promotion and dismissal of police officers are opaque. Police resources, training and staffing are limited in some areas. There are media and civil society allegations that senior officials or political figures shape the conduct of investigations. Some victims of crime allege that people other than political figures or senior officials sometimes also attempt to interfere with police investigations.
Registration, investigation and prosecution of cases may be affected by bias in relation to the class, caste, ethnicity and religion of a victim or offender. Ethnic and religious minorities complain that police lack sensitivity, suspicions about which sometimes lead to communal violence. Local sources report that police, along with other agencies including the courts, public servants, judiciary and prosecutors, have an inherent bias when dealing with Dalit victims of crime in particular.
The Indian judiciary is independent of the executive branch. Some international rights organisations claim that corruption is prevalent, particularly at lower levels of the judiciary. Large backlogs of cases means that most citizens have great difficulty securing justice through the courts. In 2017, the government created a search and evaluation committee to support the appointment of judges.
The high courts in 2017 had over four million cases pending, with 25 million cases awaiting trial in subordinate courts. The Supreme Court has over 60,000 cases pending. Backlogs lead to lengthy pre-trial detention periods for a large number of suspects, in some cases significantly longer than any prison term their alleged offence would attract. Over two thirds of detainees in the criminal justice system are awaiting trial, and prisons are overcrowded.
Section 39A of the Constitution mandates that equal justice and free legal aid are rights of every Indian citizen. In practice, defendants are assigned state-appointed lawyers. The quality and consistency of representation by state lawyers varies. The standard of defence from a state-appointed lawyer would not compare to a highly-paid private lawyer.
In April 2017, the Ministry of Law and Justice launched an alternative to improve legal assistance for disadvantaged citizens. This included expanding pro-bono legal services to improve access to higher quality legal advice. The ministry partnered with the Ministry of Electronics and Information Technology to launch a pilot of ‘tele-law’ services, which provide legal services through common service centres in remote rural areas.[3]
[3] DFAT, Country Information Report – India, 17 October 2018, pp. 25 – 26, paras [5.3] – [5.9].
The applicant appeared before the Tribunal on 6 October 2020 to give evidence. The applicant stated at hearing that he did not need the services of an interpreter. The Tribunal went through the process and explained the reason for the hearing. The Tribunal explained that it was the applicant’s opportunity to discuss relevant issues with the Tribunal.
The Tribunal asked if the applicant has any difficulty understanding the Tribunal, he indicated he did not.
A summary of the evidence given is as follows.
The Tribunal indicated that it had before it the information on the Department file and Tribunal file. The Tribunal asked the applicant if the information contained in the application for protection was true and correct. The applicant indicated that it was true and correct.
The Tribunal indicated that it had the affidavit of his relatives which was recently provided to the Tribunal. The applicant indicated that he had some further information he wanted to provide. The Tribunal asked what that information was.
He stated, words to the effect, that in 2017 his parents went back to their village, they had their nephew with them, and were with neighbours. Three people came to the house upstairs as they thought the nephew was the applicant. They came to attack the applicant’s family. The neighbours all came together and caught a culprit. The others escaped. The neighbours slapped the boy and the police were called. The police had the boy’s bike. The applicant claimed the police just gave the boy a slap and let them go. He claims that his father said the police stated they would follow up the matter and lodge a complaint. When his father went to lodge a complaint, the applicant claims the local police wanted money.
The Tribunal indicated it would like some information about the applicant. The applicant confirmed he is [age] years of age. He is working full-time as [an Occupation 4]. He has his sister in Australia and his parents reside in India although they are presently visiting him and his sister in Australia on a visitor visa.
He claims he has no other family India. He claims that other family members are in [Country 1] and others have passed away.
The Tribunal asked about the further information and his claims.
He went through the information that in 2017 his parents were with a nephew and they were attacked. The neighbours caught some of the assailants and gave them a few slaps. He claims they thought the nephew was the applicant and they had been given money to attack the applicant.
The police came and took one of the boys and told the applicant’s father and the neighbours to hand over the bike. He claims that when his father went to lodge a complaint and case with the police, they demanded money. He claims that after one month they released the bike and took it no further.
The applicant stated that there were weapons involved. The Tribunal asked what weapons and he responded knives and swords. He claims the sword and bike was handed to the police.
He claims that his parents then went to stay at the home of his mother’s parents. He claims that there was a second attempt against his parents in 2019. He claims some persons went in a car to where his parents were. His parents again went to the police but the police wanted money and they did not lodge any complaint.
He claims he comes from a middle-class family. He studied year 11 in Australia. He states that he married, and his spouse received a dependent spouse visa to stay in Australia. He stopped studying. She was eligible for residency. She became pregnant to someone else. He told her parents that it was not his baby. He claims this led to a dispute and the village elders came to sort it out.
He claims he told them to do a DNA test, but they refused, and they tried to attack him. He claims that there were plenty of people on her side and on his side, so his relatives protected him, and nothing happened.

The Tribunal put to the applicant it was confused why they would attack him as it appeared that he was victim as his wife was pregnant with another man’s child. His ex-wife is now married to the father of the child and living in India.
He responded that it was a pride thing and her father was uneducated. He claims that his parents were harassed and went to police but nothing happened.
The Tribunal asked for some background to the marriage. He stated that he met his ex-wife in Australia. He claims that she returned to India in 2011. He claims that he had doubts about her in 2010.
The Tribunal asked about his claim involving him being at risk due to an issue of the dowry. The Tribunal pointed out that it is the practice that the woman’s family pay a dowry and how was he at risk.
He stated that his ex-wife did not pay a downy and his family did not want one. He claimed that his ex-wife’s family did not pursue any false claim in relation to the payment of a dowry.
He again went through that he denied the baby was his baby and offered to do a DNA test but they declined it.
He again stated that her family tried to attack him, but he was protected by other people who were his relatives. He claims that they started to send messages through other persons that they will get him.
The Tribunal asked about his anxiety and stress. The applicant claimed he was anxious. The Tribunal asked if he was on any medication. The applicant responded that he dealt with his stress, anxiety and depression through exercise. He claims he has met someone who is an Australian resident and they are shortly getting married. He said he has been living in a regional area since 2011 and is confident he will be sponsored.
The Tribunal explained that it was looking at his claim for protection. The Tribunal read out the convention again and asked how he felt his claim fitted into the convention. The applicant responded that it is political. The Tribunal asked for more information. He claimed that his ex-wife’s new father-in-law was a political person.
He then went through an example of a criminal attack in India which he claims was not prosecuted due to political connections. When queried he stated that it was an example of how things happened in India and there was no relation to his circumstances.
The Tribunal sought more information on the political connection. He stated that his ex-wife’s new father-in-law was a village M.P. The Tribunal asked if that was at a local level.
He confirmed that it was at the local village level.
He again stated that they were sending threatening messages through his parents that when he returns, they will sort him out.
The Tribunal then discussed relocation. He stated that for 500 rupees they would be able to find him. He claims he could not relocate without being found. The Tribunal pointed out that India is a large country, he is young, educated and has shown that he could adapt to a different country by coming to Australia.
The Tribunal asked why there was such a delay in lodging an application for protection. He stated that his sister did not want to send him back to India and she has organised everything. He claims that when they found out he was not eligible for a remaining relative visa someone suggested he try protection.
The Tribunal pointed out that the incident he referred to in 2011, when there was the meeting with the village elders, and he claims that his ex-wife’s family were so incensed that they attacked him, happened some months before he returned to Australia. The Tribunal pointed out that at the time he claims they were enraged however he was not attacked, and he lived at his home. If they wanted to harm him they would have had the opportunity.
He responded that he did not go outside his family’s house until he returned to Australia.
The Tribunal attempted to contact a witness in India. [Dr B]. The applicant claimed [Dr. B] was at the village meeting in 2011. He states that his family wanted him present as he was educated. The applicant stated in his response to the hearing invitation that [Dr B] is a social worker and a Panchayat Member. The Tribunal was unable to contact [Dr B]. The applicant indicated that no interpreter was needed as [Dr B] understood and spoke English.
The Tribunal was unsuccessful and indicated it would try later in the hearing.
The Tribunal then contacted the applicant’s sister. [Ms C] stated that she has been in Australia since March 2006. She has been a permanent resident since 2010. The Tribunal asked what evidence she wanted to provide. She responded that all the information is true and genuine.
She stated that it was an arranged marriage. She stated that the families arranged the marriage in India. She stated the families like each other and selected the girl. She stated that when they found out the bride had been with someone else his family started threatening her brother. She claims she told him to come back to Australia. She claims that as his ex-wife was very pregnant and they bought it into the public it would bring shame to her family. She claims that her parents were attacked. She claims the whole street witnessed the attack and it can be verified, and she said it happened in 2017 but she does not have the exact details. She claimed there was a further attack in 2019. She claims that no-one saw any weapons, but they could have been hiding it. She later corrected herself that there had been swords.
She then gave some examples of violent crimes in India. The Tribunal then thanked the witness and requested she hang up.
The applicant’s sister then reconnected to the Microsoft teams hearing uninvited and claimed she had [Dr B] on a conference call. She claimed [Dr B] was a medical doctor working at the District Hospital.
The Tribunal asked her for the correct telephone number and requested her to hang up and it would call [Dr. B].
The Tribunal connected with [Dr B]. He stated that he was born in [year]. He said he knows the applicant as his father is his distant relative. He stated that he heard the families were threatening each other at a meeting. He stated this was due to some basic problems they had with each other. The Tribunal asked what the problems were. He again stated that he heard there were some personal problems. The Tribunal pressed him for details of the problems. He said words to the effect that he did not remember. He said that the families were happy with the marriage. He claimed it was an arranged marriage and he attended the wedding in India. He spoke of giving a present.
The Tribunal then put to the applicant pursuant to s424AA that it had some concerns with the witness’s evidence, as follows. The Tribunal explained that the applicant could ask for an adjournment and extra time before answering those concerns.
The Tribunal said that both the witnesses had spoken of the marriage being an arranged marriage. [Dr B] had stated that the marriage happened in India and he attended the ceremony.
[Ms C] spoke of the family selecting the girl as well as both approving and arranging the marriage. The applicant in his written statements and oral evidence had stated that the marriage took place in Australia. He stated that it was not an arranged marriage. In his written statement he claimed that the families were not happy, and his family had disowned him.
The applicant elected to respond at the hearing. He stated words to the effect that it was an arranged marriage. The Tribunal asked why he changed his evidence when in statements and earlier he had said it was not arranged, they married in Australia. He responded that they married in Australia as he and his sister were here.
The applicant said the [Dr B] referred to giving a present and that the Tribunal could call him back with a Punjabi interpreter. The Tribunal responded that earlier it had been informed that [Dr B] was very well educated and understood English. He appeared to understand what the Tribunal was saying and had responded clearly in English. The applicant agreed he understood English.
The Tribunal explained that it would consider all the information and evidence before it and asked if the applicant had anything further to state.
The applicant indicated he did not.
Nationality
The applicant claims to be a citizen of India and has provided a copy of his Indian passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of India and that he is outside his country of nationality. As such, the Tribunal finds that India is the applicant’s receiving country for the purpose of assessing his claims for protection.
There is no evidence before the Tribunal to suggest that the applicant holds any other citizenship or has any third country visas.
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The applicant in his application for protection lodged with the Department claimed that he could not return to India as his ex-wife was carrying someone else’s baby. He divorced her and he was at risk from her family as divorce is a serious thing. He claimed that his family had disowned him. Fake allegations have been put on him. He could not seek protection as authorities are corrupt and he cannot relocate as he would be found. He has been in Australia since he was [age] and he preferred to stay in Australia.
He claimed he was suffering from anxiety and depression.
At the interview with the delegate, as set out in the delegate’s decision, the applicant stated that he had known the ex-wife in India. It was not an arranged marriage. He stated that his family were originally against the marriage but later accepted the relationship. He claimed that the ex-wife’s family did not approve of the relationship but later accepted the marriage. He stated that his ex-wife had previously been divorced. She was now living with the father of her child who’s named is on the birth certificate.
He claimed at interview that he did not inform the authorities of the attacks or threats as his ex-wife’s family used drugs and were dangerous and that local authorities were corrupt.
He claimed that if he escalated threats to authorities, he and his family will be sued for compensation by his ex-wife’s family over a false dowry payment that was never made. When pressed for more detail on any false claims in relation to dowry payments. He stated that he and his family did not ask for any dowry and his ex-wife’s family did not pay it. He stated that no false claim in relation to the dowry was filed.
At interview he claimed that the “Khap Panchayat” or local village elders were involved.
At the Tribunal hearing the applicant’s evidence was vague. The only detailed evidence provided was in relation to two incidents he claimed happened in India when he was not there. He claimed that his parents and nephew were threatened in 2017 and later in 2019. He gave that evidence without prompting and it appeared to be rehearsed. He claimed that the neighbours on both occasions intervened to stop the attack and sought assistance from the police.
The applicant provided two witnesses. Both were relatives of the applicant. The Tribunal asked the witnesses what they would like to say about the applicant and his claims. The applicant’s sister went through the claimed attacks against the parents in their home village in 2017 and 2019. She referred to having heard about the attacks. She stated that the neighbours came to their assistance and it was reported to the police however the police wanted money and did not take it any further. She further gave evidence that the marriage was arranged between the two families. She stated that the girl was introduced, and her family approved of the girl and the marriage.
The witness referred to as [Dr B] stated that he had heard there were problems. He could not expand on what those problems were. This was even though he was presented as a witness who the family asked to be at the meeting in 2011 as he was educated. His evidence was vague and lacked detail in relation to what the personal problems were that he referred to in his evidence.
His evidence was that the couple married in India, it was an arranged marriage and he attended the wedding.
When it was put to the applicant pursuant to s424AA the inconsistencies in the evidence given by the witnesses in relation to his marriage and his own evidence that it was not arranged, and the families disowned him, the applicant at first changed his evidence to state that it was arranged. He then stated that [Dr B] has referred to giving a present to the families. He then stated that [Dr B] should be called with an interpreter. The Tribunal pointed out that it was informed the [Dr B] understood English and was educated. The Tribunal pointed out that [Dr B] appeared to understand and responded to the questions. The applicant agreed [Dr B] understood English.
The applicant did not address the issues of the inconsistency in his sister’s evidence that the marriage was arranged by the families and they approved of the girl. He simply sought to change his evidence.
The Tribunal does not accept that the evidence given by the witnesses advances the applicant’s claims. Their evidence was not consistent with the evidence given by the applicant in a crucial issue in relation to the marriage to the ex-wife and the families opposition or support. The Tribunal is satisfied that the applicant’s sister wants the applicant to stay in Australia with her and finds that she was willing to fabricate evidence to achieve that outcome.
The Tribunal does not accept “[Dr B]” as reliable or helpful. His evidence was vague and referred to having “heard” about problems. His evidence of attending the applicant’s wedding in India contrasted with the applicant’s claims of marriage in Australia and both families being unhappy with the union.
The applicant was unable to explain in any persuasive or convincing manner why the ex-wife’s family would be so committed to causing him serious injury when it appeared that he was the one who was the injured party. He claimed that his wife was pregnant with another man’s baby. When queried he stated that her family were angry as he divorced her and told them it was not his baby. Later when pressed for the cause of their alleged animosity and rage he said they were shamed and uneducated.
This was despite his evidence that his ex-wife was in India living with her family and the man who was the father of the child and whose name is on the birth certificate. He kept referring to his offer to do a DNA test. He could give no persuasive evidence as to why they would insist he was the father in the face of the information that his ex-wife is living in her family’s home with the father of her child.
The Tribunal does not accept that the ex-wife’s family would be so outraged as the applicant claimed at the interview with the delegate, as he further claimed she had already been divorced before he married her, that her family used drugs and were corrupt and she is married to the father of her child and lives with her family in India.
The applicant had claimed that he did not report to police the threats as his ex-wife’s family were dangerous and if he did report the threats his family would be sued for compensation.
This contrasts with his evidence at the Tribunal hearing that when his family were attacked the police were called. There was no explanation why they would no longer be concerned about contacting the police. His evidence is that police did respond and “slapped” the perpetrators around. He claims that the police would not take it further as they wanted a payment. The Tribunal has formed the view that the police did not view the assaults as dangerous enough to proceed with. The Tribunal does not accept that thugs armed with knives and swords would have been able to be caught by neighbours without some injuries being received.
The applicant gave no evidence of injuries being received from those claimed weapons.
Prior to the hearing the applicant provided a document entitled “Affidavit” “Translation from Punjabi to English”. The document was unsigned. The original document was not provided to the Tribunal. The four deponents state that they are relatives of the applicant. They claim that there was a dispute with the applicant’s family and the applicant’s in laws. They state that the family threatened to teach the applicant a lesson. They state they went to the applicant’s house in August 2010 to resolve the matter in dispute. They state that the dispute increased and was not resolved.

100. In contrast the applicant’s evidence has consistently been that the meeting between his relatives and his ex-wife’s relatives happened in August 2011 when he returned to India to sort out the problems. The affidavit is not persuasive as corroborative evidence as it gives no details of what the dispute was about and provides a date when the applicant was not in India as he was at that time in Australia.
101. When queried at the hearing as to how the claims fit into the convention and migration act the applicant claimed his fear was political. He stated that his ex-wife’s new father-in-law was a local politician. This was a new claim. He did not provide any persuasive details and when asked what political party, he referred to the new father-in-law being a local politician. He agreed it was localised. At interview, as set out in the delegate’s decision, he was queried about where his claims fit into the convention and he stated that the “Khat Panchayat” or local village elders were involved. He did not expand any further on how they were involved. At hearing he provided an affidavit from the village elders that has been considered by the Tribunal in paragraphs 99 and 100. The Tribunal is not satisfied on the evidence before it that the applicant is at risk from any political party or the involvement of persons with political connections. His claims were that the police would not help however his evidence was that they did respond to the call for help and dealt with the culprit in a summary way. He claims that they would not take the complaint further as they wanted money, at a later stage he claims that they would be unwilling to protect him as his ex-father-in-law was a local politician. Given the contrasting evidence and lack of detail including what political party would be persecuting the applicant the Tribunal does not accept that the applicant will be targeted or be at risk of serious harm due to any political reason or connections his ex-wife’s family or her new in-laws may have to a political party.
102. On the evidence presented the Tribunal is not satisfied that the ex-wife’s family would be, nearly ten years after the marriage ended, still wanting to extract any revenge or serious harm on the applicant. When it was put to the applicant at hearing that after the claimed meeting took place in 2011 which resulted in both families assaulting each other he remained in his home village and did not leave for some months and no harm came to him. His response was that he did not go outside. This contrasts with his evidence that hired “boys” came to the house in the village to assault his parents and nephew in 2017 and 2019.

103. After considering the above evidence the Tribunal is not satisfied that the applicant genuinely fears serious harm from the applicant’s ex-wife’s family now or in the reasonably foreseeable future for any convention reason including political or being a member of a particular social group. The Tribunal is not satisfied he is at risk of serious harm due to being associated with his family group, being subjected to any false claims in relation to dowry or any other convention reason.
104. The applicant claimed that he suffered from anxiety and depression. At hearing he stated that he was working full-time and was about to marry an Australian resident. His evidence was that he dealt with his anxiety by exercising. His evidence was that he was not on any medication or required treatment. No medical evidence was presented to the Tribunal. The Tribunal finds, on the evidence before it, that he does not suffer any mental illness that would require specialised treatment. If he did require such treatment the Tribunal is satisfied that despite his contrasting claims in relation to support and relatives in India that he does have support and family in India, he is educated, speaks English and would be able to access the appropriate care.
105. Considered overall the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm for any reason set out in s.5J(1)(a) if he goes to India. It is not satisfied there is a real chance he will suffer serious harm for any of the reasons claimed or for any other reason if he goes to India. Accordingly, it is not satisfied he has a well-founded fear of persecution. The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criteria?
106. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may nevertheless meet the criterion for the grant of a protection visa under the complementary protection criterion.
107. As indicated above, the applicant claims he is at risk from his ex-wife’s family as he denied he was the father of her child. As set out above the Tribunal has considered all the evidence in relation to this claim and does not accept on the evidence provided that he has a real risk of suffering significant harm at the hands of his ex-wife’s family or any political connections they may have.
108. The applicant claims he is used to life in Australia as he came out here on a student visa when he is [age]. The applicant is still a young man. He has skills he acquired in Australia including English skills. He has connections to India including his parents who still reside in India. At hearing he stated he had no relatives in India however throughout his overall evidence he referred to his relatives protecting and supporting him during any altercation with other persons. The Tribunal does not accept he will be at real risk of suffering significant harm on his return to India due to his being in Australia on various temporary visas since 2007.
109. The applicant claims he suffers from depression and anxiety. No medical evidence was provided. The Tribunal notes the applicant been able to secure paid long-term employment in Australia. At hearing he stated he takes no medication and deals with his anxiety and stress by exercising. As set out above the Tribunal has considered the evidence and found that he comes from a middle-class family with resources available to them. The applicant’s evidence is that he is in contact with his family and they expressed concern about him. The Tribunal is satisfied that he would be able to access the care of a doctor in India if in the future he needed treatment and a prescription for medication.
110. On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
111. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
112. The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Carney-Orsborn
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 4486

8 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction