1700680 (Refugee)
[2021] AATA 1788
•21 April 2021
1700680 (Refugee) [2021] AATA 1788 (21 April 2021)
DECISION RECORD
DIVISION: Migration & Refugee Division
CASE NUMBER: 1700680
COUNTRY OF REFERENCE: India
MEMBER: Linda Holub
DATE: 21 April 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 21 April 2021 at 2:55 pm
CATCHWORDS
REFUGEE – Protection visa – India – members of a particular social group – persons involved in mixed-caste marriage – ‘Honour killings’ – apprehended bias – procedural fairness– fears harm from applicant’s father-in-law – delay in lodging the visa application – inconsistent claims – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 360, 424AA, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Citizenship v MZXPA [2008] FCA 185
SZRUI v Minister for Immigration, Multiculturalism and Citizenship [2013] FCAFC 80
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 22 December 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, a husband and wife, claim to be citizens of India. The primary visa applicant first arrived in Australia [in] August 2014 as the holder of a Subclass 600 Visitor visa. The second named applicant arrived in Australia [in] September 2014 also as the holder of a Subclass 600 Visitor visa. They both returned to India on [date] October 2014. The primary applicant returned to Australia on [date] June 2015 and has remained onshore since that time. The second named applicant joined her husband onshore on the [date] September 2015. She departed Australia [December] 2015 and returned again [in] February 2016. Both applicants currently hold a Bridging visa A which allows them to remain in Australia as lawful non-citizens.
The applicants applied to the Department of Home Affairs (the Department) for a Protection visa on 24 February 2016. At the time of applying, the applicants held Subclass 600 visitor visas. The delegate refused to grant the visas on 22 December 2016 on the basis that the delegate was not satisfied that the primary visa applicant is a refugee as defined by s.5H(1) of the Act; nor are they a person in respect of whom Australia has protection obligations as defined by s.36(2)(aa) of the Act. The delegate made this finding on the basis that he was not satisfied that the applicants faced a real chance of persecution. Specifically, he was not satisfied that there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicants being removed to India, there is a real risk the applicants will suffer significant harm.
The primary applicant is referred to as ‘the applicant’ throughout this decision and the second named applicant is referred to as such.
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
Summary of claims and evidence
The issue before the Tribunal is whether the applicants are owed Australia’s protection under the refugee criterion or under the complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department’s file relating to the applicants’ visa application and the Tribunal’s file in relation to the review application. The applicants attended a Department interview on 13 December 2016. The applicants provided additional submissions on the day prior to the first hearing and further submissions were provided subsequently. The Tribunal has also given consideration to the delegate’s decision record and evidence presented by the applicants at the hearings.
The applicants, who are married, were both born in Ludhiana, in the Indian State of Punjab in [year]. Both are of the Hindu religion; however, they claim they come from different castes. The applicants’ written claims for protection are contained in a statement submitted at the time of application on 24 February 2016 which is written in the first person but is signed by both applicants. The following is a summary of the claims and information provided by the applicants in that statement:
·The applicant claims that he was born into a lower caste Hindu family and that he married a higher caste Hindu woman (being the second named applicant) whom he met on [date] July 2009 whilst working at the [workplace].
·They married on [date] July 2011 in Chandigarh against their parents’ wishes. Their ‘elders’ have an ‘orthodox’ mindset and are sceptical about the survival of mixed- caste marriages. The second named applicant’s parents were overly concerned about the neighbourhood talk and what people would say about the marriage. ‘What people say’ dominates their thinking and is the major reason behind their cynicism.
·The applicant’s father-in-law threatened to kill them both just because he was worried about what people would think about him. He tried to emotionally blackmail the second named applicant before threatening to kill them.
·The couple pre-emptively sought state protection through a petition via the High Court of Chandigarh in July 2011.
·After the applicants married, they moved to Delhi to avoid her parents.
·The second named applicant’s father found their address in Delhi and sent hired “goons” to kill both of them.
·Due to this incident the couple moved to a friend’s house and decided to apply for visas to travel to Australia. The applicant came separately because he wanted to avoid the goons.
·When they returned to India together on [date] October 2014, they rented accommodation in Ludhiana. The applicant’s father-in-law tracked them down at their new address, but the applicants were not at home at the time they were visited. As a result of that visit, they relocated to another house in Ludhiana and again applied for Tourist visas for Australia.
·The applicant returned to Australia on [date] June 2015 and the second named applicant arrived on [date] September 2015. They did not travel together for the same reason.
·On [date] December 2015, the second named applicant returned to India, however in January 2016 her father found her, and forcefully tried to take her with him. She only escaped after neighbours intervened on her behalf. Her father asked her about the applicant. The second named applicant reported the matter to the police, but the police refused to intervene on her behalf.
·Due to the poor response from the police she lodged another claim against her father at court.
·His father-in-law’s ‘goons’ are still searching for the applicant in India.
·‘Honour killings’ are very common in India and the applicant has witnessed many incidences of them.
On her application form, the second named applicant referred to the couple’s written statement and wrote that she left India due to fear of persecution. She claimed her father threatened to kill her because she got married without her father’s consent.
The applicants provided the Department with a copy of court documents in relation to their 2011 petition and the second named applicant’s 2016 petition to the High Court for the State of Punjab and Haryana at Chandigarh.
EVIDENCE PROVIDED AT THE HEARINGS
The applicants appeared before the Tribunal on 11 November 2019, 16 January 2020 and 2 March 2021 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Punjabi and English languages. The first hearing was via a videoconference link with the applicants and interpreter situated in Melbourne and the Presiding Member in Sydney. An observer was also in attendance. Her presence was agreed to by the main applicant in writing, prior to the hearing. The second hearing was held in the Sydney registry.
In relation to the third hearing, the Tribunal scheduled a resumed hearing on 26 March 2020 via video link whereby the Member and interpreter would be in Sydney and the parties and representative in the Melbourne office. The parties indicated that they may travel to Sydney at their own expense to attend the hearing in person. On 19 March 2020, the Tribunal postponed the hearing due to the Tribunal suspending all in-person hearings as a COVID-19 pandemic precaution.
From June 2020, the Tribunal began conducting virtual hearings in appropriate circumstances via the Microsoft Teams platform as a result the COVID-19 pandemic. The Tribunal made contact with the representative’s office to discuss the options of a Microsoft Teams hearing.
The Representative’s office indicated that the parties’ preference would be for a face-to- face hearing and they were willing to travel to Sydney for a hearing. The Tribunal was told that a Microsoft Teams hearing from the representative’s office was not possible at that time due to the COVID-19 social distancing restrictions.
The Victorian COVID-19 situation in 2020 caused additional delay in rescheduling the hearing. From time to time the Tribunal asked the representative’s office to provide updates about the situation and the possibility of undertaking a hearing.
When the Victorian COVID-19 situation improved in November 2020, the Tribunal made contact with the representative asking whether the parties would consent to a video hearing. The representative noted that their clients requested an in-person hearing.
On 12 November 2019 the Tribunal advised that, due to the COVID-19 restrictions the Tribunal is unable to offer an in-person hearing for the applicants in 2020. The Tribunal’s Melbourne Registry was closed to visitors at that time and the Presiding Member is located in Sydney. The applicants were further advised that the Tribunal is only able to conduct in- person hearings from the Sydney office in limited circumstances subject to the NSW COVID-Safe requirements. The Tribunal explained that it had been undertaking video hearings through the Microsoft Teams platform for some months and is satisfied that it provides a very effective mechanism to undertake hearings. The Tribunal asked the representative to confirm whether or not the applicants could come to their office to participate in a Microsoft Teams video hearing.
In response to this on 19 November 2020, the Tribunal was advised that the review applicants continue to hold serious concerns about the viability of a video hearing. They requested that an in-person hearing be conducted if possible and advised if that required
delay until 2021, they would be agreeable to that. The response noted that it is their position that it would be best to avoid continued delay but that the risks involved with a video hearing take precedence, especially considering this matter is in respect to a Protection visa application.
The Tribunal was also advised that the office of the applicants’ representative was not currently open to clients at that time and that although metropolitan restrictions had eased in Melbourne, office workers (including law firms) were still required to work from home where possible. The Tribunal was told that the migration representative does not yet have procedures in place for client contact in the office and it was not anticipated that these would be in place until the start of 2021 to ensure there is a safe transition of employees back to the office when allowed to do so.
The letter stated that noting the above timeframes, it was considered the most appropriate course was to wait until 2021 to see if an in-person hearing in Sydney is available or look to re-constitute the matter to a member in Melbourne. It was put to the Tribunal that Microsoft Teams may be useful in some cases, but this is not one of them particularly given the previous hearings on this matter.
The Tribunal again wrote to the representative on 24 November 2020. The Tribunal requested further details about the parties’ objections to a video hearing. In this letter the Tribunal emphasised the following:
The Presiding Member has noted your response advising that the review applicants having concerns regarding a video hearing and also the information provided regarding the timing of the opening of your office. She has asked that you elaborate on what those serious concerns are. No information was provided in your response as to the basis of those concerns and how they relate to the conduct of a Microsoft video hearing.
The Presiding Member will consider the request the concerns in the context of the fact that both this and other Tribunals as well as the courts have been holding video hearings for some months.
Furthermore, the Tribunal will consider the request in the context of the applicants’ case. In that regard, the Tribunal will take account of the fact that this will be a third hearing to discuss a specific concern.
The applicants were represented by their registered migration representative, who attended the hearings. They appointed a new migration representative on 28 November 2019 after their first hearing.
First hearing
The applicants stated that they wrote their Protection visa application together and that it continues to reflect their claims. They had no changes to make and had no additional claims but had additional information to provide the Tribunal. The applicants confirmed their migration histories as outlined in the Department’s Protection Visa Assessment.
The Tribunal heard that the applicant works full-time in a [workplace] while the second named applicant has a casual [job]. Her shifts are variable. The couple and their child share a house with another family.
The applicant stated that he last had contact with his parents when he came to Australia in 2014. He stated that about once a month he speaks with his brother. His brother-cousin lives in Pune, which is about two hours’ drive from Mumbai. In relation to whether he has contact with anyone else from his hometown or people close to his parents he stated that he sometimes has contact with friends, some of whom live outside of India.
The Tribunal was told that the second named applicant has had no contact with her parents since she last left India for Australia in February 2016. She stated that she also does not have contact other family members. The second named applicant does maintain contact with two friends from her hometown. She stated that it would only be a couple of times per month with each of them. When asked if they have contact with her parents, the second named applicant stated that one of her friends incidentally bumped into her brother at the market on one occasion.
The applicants confirmed that despite references to the second named applicant’s father’s political connections they are not making any claims regarding persecution because of their political beliefs.
The applicants confirmed that they lived in Delhi together from August 2011 just after they married until they came to Australia on separate dates in 2014. They were both granted transfers to Delhi by their employers at that time.
The Tribunal explained to the applicants that it accepts they are married on the basis of the marriage certificate they provided and is prepared to accept that the secondary applicant’s parents are not happy with the marriage. The Tribunal explained to the applicants that it has a number of concerns in relation to the claims regarding the threats by the second named applicant’s father and about their claims regarding his ability to locate them within India. The Tribunal explained it would discuss its specific concerns and provide them both with an opportunity to comment.
The Tribunal explained that it would first direct its questions to the main applicant as he is the primary applicant and would then ask the second named applicant if she wished to make any additional comments. The Tribunal did this throughout the three hearings. During the course of the second hearing the Tribunal directed questions pertaining to the second named applicant about her family specifically to her in relation to a Statutory Declaration dated 9 January 2020 she provided to the Tribunal.
Length of time since the applicants married
The Tribunal asked why the second named applicant’s parents would still be concerned what people in the neighbourhood think about their marriage given they married in July 2011 and it is over eight years since they married, and they now have a child. The applicant stated that it is because their child is his and his wife’s parents have a problem with him because of his caste. He feels bad because the real threat is now for his child if they return to India.
The Tribunal asked the applicants in the light of their previous evidence that they have no contact with the second named applicant’s family, how they know that the family has maintained its opposition to the marriage. The second named applicant responded that when her friend saw her brother in the market, he told her that her father is always angry and that he is ashamed of her and does not want to ever see her. She stated that the issue is that his own daughter did not listen to him. She claimed that her father has been
unable to concentrate on his business and he thinks it is because of the shame she has brought to the family.
Timing of the lodgement of the applicants’ protection visit application
The applicants were asked why they did not apply for protection before February 2016. As noted in their migration history, the applicant was in Australia from [August] until [October] 2014 returning [in] June 2015 and the second named applicant arrived on [date] September and remained until [October] 2014 and returned on [date] September departing on [date] December 2015. The Tribunal put to them that they were claiming to have first encountered threats in 2011. The applicant responded that he thought he could some gap between himself and the family of the second named applicant. He stated that his wife was still thinking that her father will agree to their marriage. He stated that she kept saying he will agree and to give it some time. He also stated they had good jobs. The second named applicant also stated that she thought her parents would understand and referred to them having good jobs.
Applicants’ return to Ludhiana after visiting Australia
The Tribunal explained that it was concerned that they both returned to India in October 2014 after visiting Australia and that they rented accommodation in the city where their families live.
The applicant stated that upon returning to India they stayed in Delhi for about one month and then moved to Ludhiana. The Tribunal asked them why they did so given their claims about the very difficult relationship with the second named applicant’s father and the previous threats he made against them. The applicant explained that they came to Australia because he wanted to put a gap between themselves and her parents. He stated that because his visa was coming to an end, he did not want to be unlawful, so they had to go back.
The applicant stated that they made a decision to return to Ludhiana because he had some friends there and thought they might help the couple. Even though he was scared he thought it would be okay because Ludhiana was their hometown. He stated that his in-laws traced their address but were unable to locate them because they were at work at the time. He stated that they were heartbroken that this happened and found it very difficult, so he applied for a visa to [go overseas]. He stated they had no option and they lived in fear. He stated they would have traced him in Delhi as well. He also referred to the problem of getting jobs.
The second named applicant referred to their inability to survive without jobs. She stated that somewhere in her heart she thought she would be able to convince her parents. She stated that at one point they said they had no problem with the marriage, so they withdrew the court case but later her father found them in Delhi. She stated that they would have had problems wherever they lived because her father could trace them. She stated that in Mumbai they would have language problems.
The Tribunal asked the applicants why they think the second named applicant’s parents told them at one point they did not have a problem with the marriage. The second named applicant responded that she does not know and added that maybe they felt the pressure of the court case.
The Tribunal asked the applicants how they think the second named applicant’s father traced them in Delhi. They responded they could be traced not only in Delhi. The applicant
stated that when you buy a mobile you give your details. His father-in-law is able to use his army and political links. He stated that in India it is not difficult to get these things. He stated that when you obtain a phone you provide various documents which have all your information.
The Tribunal explained to the applicants that it was not convinced that the second named applicant’s father was able to obtain their mobile phone number and thereby identify where they were living. The Tribunal referred to the fact that there are over one billion people in India and likely many millions of mobile phone numbers. In response, the Tribunal was told that it is very easy for the second named applicant’s father because he was in the army and lived in different places and therefore has contact with police stations. The Tribunal was told he sells police [products] and that he takes orders for them and that he has a lot of friends and it would be easy for him to get the couple’s address. The Tribunal was told that despite the fact the applicants did not have any contact with the family they were nevertheless found in both Delhi and Ludhiana.
The Tribunal put it to the applicants that no evidence of the second named applicant’s father’s business had been provided but in any event even if it accepts that his business provides [products] to the police force, it finds it difficult to accept that he does this through individual police stations and the army. The Tribunal explained that providing [products] to a police force could reasonably be expected to be done under a contract rather than at individual police stations. The applicants stated that in India there is a lot of competition and you don’t need an appointment. If you have a reference from doing good work previously you can go anywhere. The second named applicant stated that anyone can start a small business in India. She stated that her father’s business is very old and well- established.
Undated and unsigned submission
The Tribunal referred to an undated and unsigned submission provided to the Tribunal on 8 November 2019 which is mostly written in the third person but has both the name of the applicant and that of the couple’s initial migration representative at the end of the document. The applicants’ migration representative explained that he wrote the document based on information provided to him by the applicants and that the first named applicant reviewed the submission prior to it being provided to the Tribunal.
The Tribunal sought clarification of a segment of that submission which states that the couple moved back to Ludhiana because it “was also rather very difficult to keep on travelling again and again as it was arduous to find a well-paying job in a new city every time. They had exhausted all our other options and had to resort to staying in Ludhiana despite not feel safe and secure”.1 The Tribunal noted that they had only moved to Delhi once and in that instance, they had been transferred by their employers. The applicant stated that in Delhi they had to move to a friend’s place when his father-in-law discovered where they were living.
The Tribunal put to the applicants that it was perplexing that on the face of it their focus was on securing well paid jobs even though they were claiming that they were under threat of serious harm by the second named applicant’s father. The second named applicant stated they tried other options to get jobs but don’t know the language, so they moved back
1 AAT file, folio 101.
to Ludhiana and her father traced them there. She stated that they had expenses such as rent, food and other living expenses.
The Tribunal referred to the claim in the same submission that the second named applicant returned to India in December 2015 to confront her father “once and for all for settling all disputes”.2 The Tribunal indicated that it found it somewhat surprising given the claims that her father threatened to kill them both, that she would be seeking to confront her father. She responded that as his daughter she was hoping she could convince him. She referred to the fact that in India she had a job she enjoyed but in Australia she didn’t have a job. The applicant added that his father-in-law mainly had a problem with him not his wife.
The Tribunal put adverse information to the applicants in the terms required by s.424AA of the Act. The Tribunal explained that the information it was about to put to them was potentially adverse and that it could be the reason or part of the reason the Tribunal affirms the Department’s decision. The Tribunal explained that they could seek additional time to respond. The information related to statements made by the applicants during the interview with the Department on 13 December 2016. At 21 minutes 40 seconds into the interview there was a discussion about their relationship. In the context of that discussion, the main applicant stated that they obtained protection from the Chandigarh Court and that the police came to his father’s where he was living. Because he was not there at the time, they asked for him and stated they want to give him protection because he got married through the High Court in Chandigarh. The Tribunal explained that this indicated that the applicants have availed themselves of state protection in the past and could so again.
The main applicant responded by referring to [social media] links the couple provided to the Tribunal prior to the first hearing. He stated that one of those links shows a couple who got protection from the Chandigarh Court but after some days the boy’s head was cut off and put in front of their house. He was under protection. The second named applicant referred to the police coming to her after 20 days and asked if they needed protection, but they then withdrew the order because her parents indicated they were agreeable to the marriage.
The applicant stated that in India, Court Orders are hand delivered to the police, so they are very slow. He stated there are many other examples of things happening to couples, even though they got protection. He referred to another example about a person’s brother being beaten and, in that case, even though the court had issued a Protection Order the police said they did not have the papers.
The Tribunal referred to country information regarding state/judicial protection. The Department of Foreign Affairs (DFAT) Country Information Report on India of 17 October 2018 refers to the availability of state protection but notes that the way cases are dealt with “may be affected by bias in relation to the class, caste, ethnicity and religion of the victim or offender”.3 The Tribunal noted the evidence of the applicants that they had obtained court orders on two occasions which suggests state protection is accessible. The second named applicant responded that on the first occasion they got protection, they withdrew it because her father convinced them he accepted their marriage.
The Tribunal explained to the applicant that it wished to discuss the possibility of internal relocation with them. The Tribunal read to them paragraph 5.19 of the same DFAT Report which states:
2 AAT file, folio 101, page 2.
3 DFAT Country Information Report on India, 17 October 2018, p.25.
DFAT assesses that individuals seeking protection from discrimination or violence have a wide range of internal relocation options, although these may be more limited for some individuals depending on their personal circumstances.4
The Tribunal noted that in view of the time, a second hearing would be necessary to discuss this matter.
The applicants’ registered migration representative sought to make further submissions. The Tribunal gave him the option to put them in writing or orally at the end of the next hearing.
Submissions received prior to the second hearing
On 9 January 2020 the Tribunal received an email from the applicants’ newly appointed migration representative together with the response to the hearing invitation, submissions regarding the applicants’ eligibility for protection prepared by the migration representative, and a number of supporting documents and country information in the annexures. Annexures 1–4 of the submission included:
a.a Statutory Declaration from the second named applicant dated 9 January 2020.
b.a translated affidavit from a friend of the second named applicant. It is undated but has a date stamp of [November] 2019 which appears to be the date it was attested by the Notary.
c.a translation of the applicant’s scheduled caste certificate. The certificate is undated but was certified as a true copy of a document by the Justice of the Peace of NSW [in] March 2016.
d.a copy of the Birth Certificate of the applicants’ daughter.
e.a copy of a History Certificate issued by the Victorian Registry of Births, Deaths and Marriages showing that the applicant has not had a change of name.
Annexures 5–9 of the applicants’ submission included country information:
a.a Country of Origin Query of the European Asylum Support Office (May 2018). This document addresses inter-faith marriage and inter-caste marriages in India, in particular in the region of Kerala and the Trivandrum area, the treatment of people converting to a different religion in order to get married, in particular in the region of Kerala, information on religious minority groups belonging to the Ezhava community who are in inter-faith and/or inter-caste marriages and whether the degree of discrimination depends on the different level of income and information on the treatment of persons in inter-faith marriages during 2014–2018; Country Policy and Information Note on Women fearing gender-based violence from the UK Home Office, of July 2018; Responses to Information Requests, and a report from the Immigration and Refugee Board of Canada entitled India: Situation of inter-religious and inter-caste couples (2017–May 2019).
b.a report from the UK Home Office: Country Policy and Information Note India: Women facing gender-based violence, Version 2, July 2018. This report assesses
4 DFAT Country Information Report on India, 17 October 2018, p.27.
whether a woman facing gender-based violence from non-state actors amounts to persecution and/or serious harm. The relevant part of this report pertains to honour crimes and says they may occur as a result of inter-caste marriages. It refers to a study of 560 cases from the states of Haryana, Punjab and Western Uttar Pradesh, in which couples were threatened with violence, 83% of cases were related to inter- caste marriages. The report outlines state treatment and attitudes and assistance available to women.
c.Responses to Information Requests regarding surveillance by state authorities; communication between police offices across the country, including use of the Crime and Criminal Tracking Network and Systems; categories of persons that may be included in police databases; tenant verification; whether police authorities across India are able to locate an individual (2016–May 2018).
d.a report by the Immigration and Refugee Board of Canada, dated 11 May 2012 regarding the Situation in India of inter-caste couples, particularly those involving Dalits, from both urban and rural locations, including societal attitudes, treatment by government authorities and the treatment of their children (2005–April 2012).
On 15 January 2020 the Tribunal received an email from the applicants’ migration representative together with a consent form confirming the applicants have read and are aware of the contents of the submissions dated 9 January 2020. It also included the second named applicant’s military school records.
On the morning of the second hearing on 16 January 2020 the applicants’ migration representative sent another email which had as attachments two further statements from observers in India attesting to the knowledge of harm perpetrated by the father of the second named applicant. The email also states that the second named applicant’s [caste identity deleted].
Second hearing
At the commencement of the second hearing the primary applicant indicated that he may have met the interpreter at his interview with the Department (which was held in December 2016). The interpreter stated that she had no recollection of previous interaction with the applicants. The second named applicant stated that she did not think that the interpreter had interpreted during their interview with the Department. Both applicants stated they had no objection to the use of the interpreter. The applicants’ migration agent stated that she saw no difficulties and noted that such circumstances can arise from time to time.
The Tribunal was provided with the Punjabi version of a document that had previously been provided in English.
The Tribunal confirmed with the applicants that they provided signed “consent to submissions” provided by their migration agent.
The Tribunal noted that they had made new claims. At paragraph eight of the 9 January 2020 submission it states that the applicants “claim protection on the basis they have a well-founded fear of persecution on returning to India. Their claims derive from their membership of particular social group (PSG). These include:
· being persons involved in mixed-caste marriage;
· a child whose parents who are involved in a mixed-caste marriage”.
The applicant confirmed these are their claims and that there no others.
The applicant gave evidence that the second named applicant was born in the same town as he was. He confirmed that she has [number of siblings]. He stated that she went to a college for girls. It was a separate college to the university but the certificate she obtained was from the university. He stated that when they got married her sister was going to school and her brother was sometimes going to school and sometimes not and he does not know what they are doing now.
The applicant’s caste
The primary applicant gave evidence that he and his brothers were all born in Ludhiana. In relation to where his parents were born the primary applicant stated that he had never asked where they were born. He stated that when he was born, they were in the Punjab and he has no knowledge of them moving there from elsewhere. Because he did not get on with his father, he never asked him about his origins.
The applicant confirmed that aside from living in his home city of Ludhiana, Delhi (and Australia), he had not lived anywhere else. He stated that he had never lived in the state of Uttar Pradesh, in India.
The applicant stated he went to Uttar Pradesh to try out for the army after he finished university. During those three or four visits he stayed at different bases for two or three weeks at a time although on one occasion he went for two months. Later in the hearing he clarified that he was not attempting to join the army. He stated that although he attended the trials, he was not actually interested in joining the army. He was forced to attend the trials by his mother.
The Tribunal referred to a document provided by the applicant which is a translated copy of a caste certificate translated from Hindi to English. The Tribunal explained to the applicant that it had concerns with the document and it put those concerns to him in terms consistent with s.424AA of the Act. The Tribunal carefully and specifically explained that the applicant need not respond immediately and that he could do so after an adjournment or he could do so in writing after the hearing.
The Tribunal referred in particular to the final paragraph of the caste certificate which states that the applicant “and his family reside in the village of [District] Gazipur”.5 Paragraph one of the certificates refers to Gazipur as being in Uttar Pradesh.
The Tribunal explained that the information is potentially adverse because this information appeared to be inconsistent with his oral evidence that he and his family had not lived in Uttar Pradesh. He responded that when he went for training he stayed in Uttar Pradesh and repeated that on one occasion he stayed there for two months. The applicant stated that the paperwork referred to Uttar Pradesh for that reason and it refers to his caste.
During this discussion the applicant’s migration representative interrupted the Tribunal indicating her concern that the Tribunal did not allow an opportunity for the applicant to discuss the s.424AA information with her. At no point did the applicant request an opportunity to do. The Tribunal very carefully outlined to the applicant that he did not need
5 AAT file, folio 175.
to respond immediately and that he could do so after an adjournment or in writing after the hearing.
The Tribunal also noted that the document is undated although there is a stamp by a JP of NSW certifying it is a true copy of a document on 16 March 2016. The applicant gave evidence that he did not remember the year he obtained the document. He stated the address is of a relative of his parents.
The Tribunal also put to the applicant other information contained in the certificate in the terms required by s.424AA of the Act. That information related to the information that the applicant belongs to the Malah (sic) caste. The certificate states:
It is also certified that [the applicant] belongs to scheduled caste under aforesaid Notification 1994, as amended in 2001, by the State Government.6
The Tribunal put it to him that the website of the Indian Government Ministry of Social Justice and Empowerment, Department of the Social Justice and Empowerment, accessed on 16 January 2020 which provides a list of scheduled castes in each state, does not show the Mallah caste on the list for the state of Uttar Pradesh.7 The applicant responded that he checked on Google two days ago and has a screenshot. He stated that the definition for Mallah caste is fisherman which is considered very low.
The Tribunal explained that it was concerned because the information contained in the certificate is inconsistent with other information available to the Tribunal. The applicant sought additional time to respond to the Tribunal’s concerns. The Tribunal indicated that he may also wish to provide a copy of the screenshot he had referred to. The Tribunal explained to the applicant that it would put more weight on information available on an official Government of India website.
Issues raised in submissions provided prior to the second hearing
The Tribunal referred to the country information which was attached to the email of 9 January 2020 at annexures 5–9. The Tribunal explained that it had read the information provided and from its reading there was nothing in that material that specifically related to either the applicant or second named applicant. The applicant was asked to confirm this. Initially he had difficulty understanding the question. The applicant responded that they tried to provide information that was relevant which they considered helpful. The second named applicant added that they provided country information about what is happening in India and what could happen to them. The applicant also confirmed that nothing in the country information provided specifically relates to their families either. They also stated that no new claims arise from the country information other than the ones referred to earlier. The applicant stated that everything is related to him although is not specific to him.
The applicants confirmed that the reference to attacks occurring in 2014 and 2015 at paragraph 17 of the 9 January 2020 submission should refer to 2016 not 2015.
The Tribunal referred to paragraph 19 of the submission which quoted paragraphs 3.45 and 3.46 of the October 2018 DFAT Country Information Report on India. The Tribunal
6 AAT file, folio 175.
7 Ministry of Social Justice and Empowerment, Department of Social Justice and Empowerment Government of India, Accessed 16 Jan. 20 at 9.58 am.
stated that it accepts the points made in those extracts. The Tribunal referred to part of paragraph 3.45 that makes the point that that acceptance of marriages outside of caste or even of marriage partners not chosen by the family, depends heavily on family beliefs and refers to some variability depending on whether the family lives in an urban area or is extremely conservative. The Tribunal noted that the second named applicant attended college and has a university degree which may suggest that the family is not particularly conservative. The applicant stated that his in-laws objected to their marriage because he is from a lower caste and secondly because of his status. He stated that his wife’s family has a business but that he is a worker. He stated that they want their daughter to marry into a business family. He stated that it’s a necessity for people to go to university and that even conservative families want their children to go to university. He stated that his in-laws want their children to be educated and to occupy professional roles. He stated that the second named applicant’s father wanted her to be a higher rank in the army. The second named applicant attended a military school as a child. Written evidence of this was provided to the Tribunal. The Tribunal was told that even if she didn’t join the army, the second named applicant did a [degree] and that she could have been a lecturer.
Paragraphs 21–25 of the 9 January 2020 submission outline country information in respect of societal expectations and the treatment of couples in inter-caste marriages. The Tribunal asked the applicants about the relevance of paragraph 23 which refers to instances of violence perpetrated against inter-caste couples by members of the public. The applicants were asked if they are claiming they could also be subject to violence by members of the public. The applicant responded in the affirmative. He stated that India is multi-cultural and there are many states that don’t like inter-caste marriages. He stated that it is very common in India and that someone could torture a person, and no one would know.
Paragraph 25 refers to a report by the Immigration and Refugee Board of Canada and to the second named applicant’s evidence provided previously that she maintained a belief that her father would change his position on her marriage. The Tribunal asked on what basis she believes her family will still harm her given it is now more than eight years since she and the applicant married, they now have a child and they have no contact with their families. She responded that because so much happened in the past there is no reason to think they won’t still harm the applicant. The Tribunal asked her to elaborate. She referred to the incident when her husband was grabbed in 2014 and the later incident when people came to their home while they were at work. The Tribunal also heard from the applicant that if the second named applicant could be harmed then he could also be harmed. The Tribunal was told her parents don’t like him and that he doesn’t want to face this risk.
The second named applicant stated that from 2011 until 2016 she tried to make her family agree to the marriage. Now that they have a child her family will be even more insulted. The Tribunal noted that she has not had contact with family since January 2016, the independent evidence showing that over time families can come to accept marriages they originally objected to. She responded that the report is just an example of what could happen but in the last eight years it did not happen to them.
Paragraph 26 provides information about the role of police and state officials in assisting family members in persecuting inter-caste marriages. It specifically refers to Dalits which are the lowest caste in India. When asked how this was relevant to their claims given neither applicant belongs to the Dalit caste, the applicant responded that in its decision the Tribunal can accept he is of low caste, so the same information is relevant to him.
The Tribunal referred the applicant to paragraphs 27 and 28 of the submission. Paragraph 27 states that the second named applicant’s father has significant resources and influence
with state authorities and 28 states that he has ‘influence over state authorities’.8 The applicant was asked to explain what influence he has over state authorities and which authorities were being referred to. Initially, the applicant was unclear what he was being asked to explain. The second named applicant responded that her father had a group of friends and that no one within that group was allowed to have an inter-caste marriage.
Paragraph 30 of the submission quotes paragraph 5.3 of the DFAT report and states that the applicant may suffer from a lack of state protection and unequal treatment by the judicial system. The Tribunal put it to the applicants that they claimed they had obtained a Court Order and, on the facts, it does not appear that they were unable to get protection. The second named applicant responded that the first time they were threatened they obtained a Court Order but the second time no one came to protect her for 10–15 days. She stated that she took the papers and gave them to the police herself, but they said that when they got the orders from the court they would action them. However, nothing happened for 20 days. She stated that anything could have happened to her in a day.
Relocation
The second named applicant’s Statutory Declaration of 9 February 2020 states that if even if they were able to safely relocate within India it would be difficult for them to do so and she is not sure if they would be able to support themselves. She states that finding reasonable employment in India is not easy for people moving between languages and refers to both language and cultural barriers which mean they would be less employable. The second named applicant also states that there will be discriminated against in relation to housing and they would ‘stick out to anyone who was looking for them’.9
The second named applicant also stated in that Statutory Declaration that they have almost no savings and in order to avoid being tracked they would not be able to reach out to friends or family for support. She states that if they were forced to return to India and moved to a different region they would fall into poverty and have serious difficulty providing for themselves. The second named applicant states that the jobs they have looked for in the past are not well reputed but that it is easy to fall into poverty in India and the vast amount of jobs are ones that would leave you on the street if you do not have someone to help you or a place to stay. She stated that you get paid almost nothing in India unless you are smart about it and now that she and the applicant are older with a family finding employment would be harder. She stated that they must seek jobs in their field and they would provide reasonable income, they do not need to be well paying but they must be able to support a family of three with either herself or the applicant available to take care of their daughter. She also refers to discrimination by Indian society, and claims that it would be difficult to hide their marriage now that they have a child together and that registering their daughter at school, going to medical appointments, or producing documents would expose them as a mixed caste couple and she and their daughter would be ostracised and harmed.
Paragraphs 52 to 58 of the 9 February 2020 submission also addresses issues regarding relocation. Paragraph 54 of the submission states that internal relocation is not possible. The primary reason for this is that the risk of harm that the applicants fear exists throughout India. The submission refers to the father of the second named applicant having significant resources to be able to locate the applicants. The second named applicant provided
8 AAT file, folio 182.
9 AAT file, folio 177.
evidence that her father supplied [products] to the police force and army. She stated that he goes from police station to police station. The Tribunal put to her that it would anticipate that arrangements for the supply of [products] are made at the state or national level. She responded that the police prefer to use private supplies for their [products] rather than use government suppliers. She added that her father has a group of friends, they help each other if someone within the group marries outside their caste. The Tribunal asked her whether she was saying that her father and his friends commit criminal acts of violence.She responded in the affirmative stating they support each other because they similar views. The Tribunal asked her if she was claiming that her father who had served in the army for 17 years and his friends are now criminals. She responded that she was not saying they are criminals, but if one of them has a child who is marrying someone, they don’t accept it, so they bring people to threaten them. The Tribunal put it to her that making threats of violence could be seen as a criminal act.
The Tribunal referred to information contained in the DFAT report on India in paragraph
5.15 which states that “India’s internal migration flows are substantial. Migration data from the 2011 census has been collected but not released. The 2001 census recorded an estimated 307 million internal migrants in India, defining as a migrant anyone who lived in a place different to their place of birth or place of last residence. This figure represents approximately 30 per cent of India’s total population. The numbers may include people who had moved over very short distances within the same district and may have a missed a significant number of seasonal migrants, many of whom work in the informal sector without papers”.10. The Tribunal also noted that there are various limits to internal relocation. The same report refers to barriers such as a lack of documentation, a lack of familial or community networks, a lack of financial resources and employment opportunities and discrimination based on ethnicity, religion, caste or gender.
The Tribunal noted that the applicants came to Australia and demonstrated their resilience and fortitude to establish themselves in a new location. The Tribunal noted also that they are both educated, having completed university. In their application forms both the applicants indicated they speak, read and write Hindi, Punjabi and English. This suggests they have demonstrated a capacity to relocate within India and it would not be unreasonable for them to do so.
When asked if there are any reasons the couple could not move back and live in a part of India where they had not previously felt threatened, the applicant responded that firstly it is not easy to move. He stated they would have to look for a job and may or may not get one. He stated that even if he gets a job he might only get one that pays 10,000–20,000 rupees and that rent could be between 10,000–12,000 rupees.
The second named applicant stated they had jobs but for two years they relied on their savings. She stated the applicant is doing a [specified] job and that she is working casually in the [workplace]. She agreed they found these jobs and are doing these jobs but stated that in talking about relocation, the states are very large, and some have different languages. They were previously undertaking [other] jobs in the [workplace]. She stated that if she does not know the language, she does not know how she can do her job. Another barrier is that they don’t know anyone. She wondered how they will find somewhere to live. She stated that when they submit their documents, they will know they are inter-caste. She stated that even in the north and south they can be harmed.
10 DFAT Country Information Report on India, 17 October 2018, p.27.
The Tribunal put it to the applicants that not everyone in an inter-caste marriage is harmed and some states are less conservative than others. She stated there is no database of which states are less conservative. The Tribunal also referred to the fact that in the big cities there is greater acceptance of inter-caste marriages. The Tribunal was told that if they do research the problem is everywhere. They referred to the [social media] video links they had provided which show problems in some places. The second named applicant stated that she does not know how her father found them in Delhi but if they were found there, they can be found anywhere.
The Tribunal confirmed with the applicants that they believe the second named applicant’s father can find them because he was in the army for [number] years. The Tribunal was told that he hates the applicant and that they have gone against the rules. The second named applicant stated that she does not know about his sources and links, but he has links and sources. He wanted to bring her home to restore his dignity.
The Tribunal expressed its concern that the applicants were claiming that the second named applicant’s father has such significant links in a very large country with a billion people that he can find them anywhere. She responded that because he tracked them in Ludhiana he can do so again.
The Tribunal noted that it had reviewed the [social media] material to which the applicants had provided links to and confirmed with them that it was generic information regarding situations that have occurred in India and not specific to them.
The Tribunal put to the applicant information that was contained in an article from the Oxford Human Rights Hub dated 23 May 2018. In particular, the Tribunal referred to the following extract:
Against this background, the Supreme Court of India, on 28 March 2018, passed a landmark judgment in Shakti Vahini v Union of India which treats honour based violence as not only a matter of criminal law, but also as contrary to adults’ fundamental right to exercise choice as guaranteed under Article 21 and Article 19(1)(a) of the Constitution, which protect the right to a dignified life and freedom of expression.
And
The court in this case held that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into wedlock. Moreover, any communal body that commits, or attempts to commit, any crime in the name of honour against such a couple will be held liable under the Indian Penal Code. The court also laid down certain preventative, remedial and punitive measures that must be implemented by the governments to safeguard the rights of the individuals.11
The Tribunal put it to the applicants that it appears that there is a greater government focus on honour killings in relation to inter-caste marriages. The applicant responded by saying that if he is not here tomorrow how would he know his parents-in-law-are punished. He stated that in 2019 there was a similar court ruling in the Haryana High Court in Punjab but nevertheless, the couple concerned was still killed. The Tribunal acknowledged that there are particular circumstances affecting individual couples.
11 AAT file, folio 182.
Evidence taken from the second named applicant in relation to her Statutory Declaration of 9 January 2020
The second named applicant confirmed that she was born in Ludhiana, Punjab and that her [siblings] were also born there. She is the [oldest]. She stated that she attended [a] University, as did her sisters. Their parents paid for the [girls] to attend. Her brother did not attend university. She stated that her father left the army in around 1997 after being in the army for [number] years.
The second named applicant confirmed she provided consent to submissions which were provided by her migration representative.
The Tribunal put it to the second named applicant that it is concerned that she and the applicant moved back to Ludhiana after they returned from Australia as outlined in paragraph 8 of her Statutory Declaration. In her declaration she states that they chose to go to Ludhiana because they thought they would have protection there from their friends and this would give them a chance to convince her father to accept them. The second named applicant responded that when they moved to Delhi, they had no friends. The Tribunal noted they had given evidence that they moved in with friends in Delhi after her father’s goons came to their home. She responded that no one was sorting out the situation. She stated they did not have a friend that could stop her father, but they did have some friends.
The second named applicant stated that when they moved to Ludhiana, she wanted to ask her friends to try to convince her father to accept the marriage. The Tribunal asked her why they had to move to Ludhiana to ask friends to intervene. She stated that they thought maybe her father would come around and it would get better. When the incident happened, they asked friends to help. The Tribunal again put it to her that it is not clear why they had to move to Ludhiana and why they could not ask their friends to help them without moving there. She stated that they just acted as the situation was. She stated their friends refused to help and so they realised their decision was wrong.
The Tribunal asked the second named applicant to clarify her comment in paragraph 9 of her Statutory Declaration when she refers to them having a measure of protection. She responded that she felt secure because her husband was not there. The Tribunal pointed out that the Statutory Declaration refers to a time when the applicant was in Ludhiana with her. She responded that they did not tell anyone where they were and they used public transport when they were applying for jobs. They thought that because her father did not know where they lived, they would be fine. This was despite the claim that he had previously tracked them down in Delhi.
Oral submission made by the applicants’ representative
The Tribunal provided the applicants’ representative with an opportunity to make oral submissions on behalf of the applicants. She referred to a comment made by the Tribunal regarding a matter that was of concern to the Tribunal that the applicants moved back to Ludhiana after they had lived in Australia and that it will be a factor in its decision. The migration representative stated that she considered that it could indicate apprehended bias on the part of the Tribunal. The Tribunal is of the view that by putting its concern to the applicants, it was alerting them that it still had unresolved concerns and provided them with a further opportunity to add anything to their previous evidence.
The migration representative submitted that the applicant should have been given an opportunity to seek her advice after s.424AA information was put to the applicant. The applicant did not request an opportunity to seek advice from his representative. The Tribunal very carefully set out to the applicant that he was not obliged to respond to the s.424AA information immediately and that he could do so after an adjournment and/or in writing after the hearing.
The applicants’ representative also expressed concern about the manner in which the Tribunal worded questions put to the applicant, and she commented that the Tribunal took a literal interpretation of the evidence.
The applicants’ representative noted that she would respond to the caste issue raised by the Tribunal in writing as well as a number of issues that arose during the course of the second hearing.
The applicants’ representative referred to another comment made by the Tribunal that could indicate apprehended bias which related to a comment pertaining to there being over one billion people in India. She stated that as she did not have the exact wording, she would also address this in written submissions.
The applicants’ representative expressed concerns about the manner in which the Tribunal went through the written submissions, in particular referring to a statement from the agent as ‘their’ submission. She noted that it is acceptable for migration agents/lawyers to provide submissions on an applicant’s behalf. She added that they had done the right thing by having the applicants read the submissions and they did their best in trying to explain a document they did not write.
The Tribunal is of the view that it is not unreasonable for applicants to respond to questions in relation to submissions put before the Tribunal in support of their application. Submissions are made by representatives on behalf of their clients. Furthermore, the applicants provided signed statements saying that they had read the submissions and agreed to them. The Tribunal has regard to the fact that while representatives can make oral submissions on behalf of their clients, they cannot provide evidence nor can they answer questions for an applicant. Some of the questions asked by the Tribunal were not matters the representative could answer because she was not there at the time the alleged incidents occurred.
The applicants’ representative also stated she had issues in the way in which issues within the submission were raised and discussed at the hearing. She stated it was not in the way they were intended to be used and again noted the submission was written on behalf of the applicants. Concern was expressed about a piece of country information which stated that family members may later accept inter-caste marriage. She referred to the Tribunal Member asking the applicant to explain this country information. In fact, the Tribunal asked the applicants about the prospect of the second named applicant’s parents changing their attitude to the marriage. The applicants’ representative stated that piece of country information was included to explain why the applicants returned; that is, to see if they could change her parents’ minds. Regardless of the reason for providing the information, the Tribunal’s role is to test the evidence provided in order to satisfy itself of the claims being made.
The applicants’ representative repeated that the submission was provided on behalf of the applicants and it is reasonable for a representative to provide submissions on behalf of
their clients. She stated that it cannot be expected that the applicants would understand the complexities of protection and migration law.
The Tribunal accepts that it is reasonable for a migration representative to provide submissions on behalf of applicant. The Tribunal does not expect applicants to understand the complexities of protection and migration law nor did any questions put to the applicants seek to test such knowledge. However, the Tribunal stands by its approach of asking questions to clarify points raised in submissions submitted as part of the review process. It is indeed the role of the Tribunal to do so to enable the Tribunal to come to a decision on the claims made.
The Tribunal provided time for the applicants to make any further written submissions.
COISS report casts
Submissions provided after the second hearing – 3 February 2020
On 3 February 2020 the Tribunal was provided with further written submissions from the applicants’ migration representative addressing several issues discussed at hearing. The following additional evidence was also provided:
a.a Statutory Declaration made by the applicant on 29 January 2020.
b.a copy of sponsorship and registration papers provided by the applicant’s uncle in respect of the applicant’s time in Uttar Pradesh when he was seeking to join the Indian Army and relating to the applicant’s caste.
c.a translated copy of a caste certificate from the State Government of Punjab in Ludhiana, which is dated 4 November 2003.
d.information obtained from the Government of India, Ministry of Justice and Empowerment website providing a list of Scheduled Castes updated up 26 October 2017.
e.information obtained from the Punjab Government Notification website of a List of Backward classes/other backward classes Declared by the Punjab Government.
f.a copy of an article from The Hindi, titled, Uttar Pradesh adds 17 OBC groups to Scheduled Castes, List, dated 30 June 2019.
g.a copy of an article from the Oxford Human Rights Hub, titled, The Indian Supreme Court Takes a Stand Against Honour Crimes, dated 23 May 2018.
In the applicant’s Statutory Declaration, he addressed a number of matters discussed during the course of the second hearing. In relation to his military involvement and caste certificates the applicant stated that he spent approximately one-and-a-half months in Uttar Pradesh participating in a military trail in 2004. He stated that he signed up to join the army and was accepted into the trial but was not satisfied with the terms and conditions so decided to quit. He declared that he then moved back to Ludhiana. He had applied to the army previously and visited Uttar Pradesh in 2001 and 2002 for no more than two weeks at a time for the application process, but his application was not accepted on either occasion.
The applicant declared that his uncle, [name deleted], lived in Uttar Pradesh and that he contacted him to help him during his time there. He stated that his uncle sponsored his
application in 2003 (resulting in his participation in a trial in 2004) and helped him get his documents in order. The caste certificate provided previously has an Uttar Pradesh address because he recorded his uncle’s address in the application so he could receive documents at that address and to enable him to organise the documents for his application. It was also preferable to have a caste certificate registered in Uttar Pradesh because it was necessary for the sponsorship and helped to access quotas for people in scheduled castes which would help them get into the army. The applicant declared he has an additional caste certificate which he obtained in 2003 in Ludhiana. He stated that he did not previously submit that certificate as it had not been an issue previously and that both certificates are his.
In relation to his residency in India, the applicant stated that since he was born in [year] until 2011, he lived in Ludhiana, Punjab. There were a number of trips outside of the city during that time, including to Uttar Pradesh between 2001 and 2004. He declared that in 2011, he and the second named applicant moved to Delhi and lived there until 2014. They came to Australia for two months in 2014 and after that they resided in Ludhiana together until June 2015 and have been living in Australia since their arrival here.
The applicant declared that his family was based in Ludhiana, Punjab and his parents were born in the Punjab. He stated that he did not recall where his parents were born during the hearing because he was confused by the way questions were put to him and the conduct in the hearing. He stated he was asked a number of questions very quickly, one after the other, and only had time for brief answers, and as the second named applicant was asked to leave the room, he became lost by what was being asked of him.
In relation to the [business], the applicant declared:
There is no central/government-approved dealers for selling police and army [products]. The police need to contact private dealers and who give their quotes and the contract is given to the lowest bidder. Dealers then start taking orders from police stations which are located in that zone.
The applicant stated that he was able to afford his university fees by working part time [during] his studies.
Finally, the applicant confirmed that the incidents on which their claims are based took place from 2014 to 2016 and confirmed that the reference to 2016–2015 in the pre-hearing submission was an error.
The covering submission from the applicants’ migration representative confirms that the country information provided to the Tribunal prior to the second hearing was general country information and provided general information on individuals in similar circumstances to those of the applicants.
In relation to the registration of the Mallah caste being as a scheduled caste, the submission refers to the discussion at the second hearing that information contained in the Ministry of Justice and Empowerment website does not list the Mallah caste as a scheduled caste. The submission notes that both federal and state governments have responsibility for maintaining scheduled and other caste categorisations. It states that country information indicates that the Mallah caste is sometimes considered a scheduled caste and in other circumstances an Otherwise Backwards Class (OBC). It refers to an extract from the Punjab State Government website, which provides a list of backward classes and OBCs which lists Mallah at 35 and that the state of Uttar Pradesh added the
Mallah caste to its Scheduled Caste List as of that date but that the list is subject to change and that there has been contention about its inclusion for approximately 15 years.
The submission states that more specific information as to the legal status of the applicant’s caste in the various states and at various times is not readily available. It states that what information is available is consistent with the applicants’ claims that they would be subject to significant discrimination as members of a scheduled and/or OBC, depending on their locality.
At paragraph 9 the submission acknowledges that the Mallah caste is not a part nor directly equivalent to the Dalit caste. It states that information was provided about the treatment of the Dalit castes to illustrate the level and nature of discrimination suffered by OBCs and scheduled castes as well as issues concerning inter-caste relationships where one of the members of the relationship is a member of the social groups. It states that it is clear from country information that mixed caste marriages remain socially taboo.
The submission states that at the hearing there was a discussion about the fact that the applicants obtained employment in Australia and have been able to make a life for themselves here and therefore could do so in India. The submission stated that the applicants are undertaking low skilled work in Australia and have been waiting for their protection visa to process and as a result have been in Australia during this time. The submission states this should not be a factor that is adverse to them.
The submission states there is no evidence before the Tribunal nor was any presented by the Tribunal to form the view that the secondary applicant’s level of education was an indicator of how likely they were to hold views opposed to inter-caste relationships.
Supreme Court Ruling – Shakti Vahini v. Union of India
The submission states that the Tribunal requested that a submission be provided in respect of an Oxford Human Rights Hub (OHRH) article, published in respect of a Supreme Court of lndia decision, Shakti Vahini v. Union of India. The submission states that the ruling does not affect the assessment of relevant country information put forward previously to any significant degree.
The submission states that according to the OHRH article, the implication of Shakti Vahini
v. Union of India is that honor based violence is now considered to be contrary to a person’s fundamental right to exercise choice under Parts 21 and 19(1)(a) of the Constitution, which protect the right to a dignified life and freedom of expression respectively. Significantly, the infringement of a right is in addition to the pre-existing criminal sanctions in place against such acts. Noting the prevalence of violence and social ostracism faced by inter-caste couples irrespective of criminal sanctions, it was submitted that the additional protection of a right is completely secondary to the actual fear of harm faced by the applicants. The submission states that in this respect they continue to refer to the substantial country information which is directly consistent with the applicants’ claimed fear of harm from [the applicant]. For example, it is highly notable that even though honor- based violence in regard to inter-caste marriages is already criminalised, country information indicates that the stigma that these social groups sometimes experience “gives rise to violence, collective punishment, and social exclusion against couples from different communities,” and can also result in police themselves being the perpetrators of violence against inter-caste couples.
The submission states that in the event a finding is made in respect of relocation under the complementary protection provisions, the applicants request an opportunity to provide further submissions and information. This request is made on the basis that the issue has not been covered in either the November 2019 or January 2020 hearing and the applicants have not been afforded an opportunity to respond to any concerns held by the Tribunal.
Concerns regarding the conduct of the hearing Apprehended bias
The submission of 3 February 2020 reiterates concerns raised at hearing that there is a risk of apprehended bias, arising from conduct at hearing and the manner in which the Tribunal engaged with the applicants. It states that a long hearing does not necessarily discharge the obligation of being a fair hearing, as it is the content of the questioning, the manner in which it is undertaken, and comments raised during that hearing.
The submission emphasises that unless in the decision record the evidence is a balanced and fair assessment of the evidence put forward, in such a manner as to indicate that a decision was not reached prior to the consideration of all the evidence, they may continue to hold strong concerns that the Tribunal has committed jurisdictional error.
According to the submission, certain comments and the manner in which questions were put to the applicants indicated that the Member had already arrived at a conclusion on particular issues prior to making enquiries. Claims regarding apprehended bias relate to:
· the Member stating that certain components would be a factor in the decision prior to the consideration of all the evidence available.
· on multiple occasions, information was put to the applicants in the form of a statement as opposed to a question.
· the Member put questions to the applicants in respect of legal submissions provided by their lawyers and indicated that there was an expectation that the applicants should hold a high level of knowledge regarding these submissions.
· the Member’s responses to answers provided by the applicants was highly critical and gave the impression that adverse findings of fact and credibility were likely to be drawn from a failure to meet the standards imposed.
The Tribunal was requested to review the transcript of proceedings and the evidence provided in full prior to reaching a decision. The submission states that if the member is of the view that the hearing had been conducted fairly and without any apprehension of bias, then it will be assumed that the decision record will reflect this accordingly. If not, the Member should consider recusing themselves.
Procedural fairness
The submission also refers to a further concern that the applicant was deprived of legal advice in relation to country information put to him under s.424AA of the Act. The submission states that this practical injustice is particularly pronounced considering that the applicant struggled at times to understand the complexity of questions being put to him. The submission states that in circumstances such as the present where a lawyer was
censured, the applicant is potentially subject to a double injustice, both at merits review and judicial review stages.
Comments made by the applicant regarding the second hearing
In a Statutory Declaration dated 29 January 2020, the applicant stated that he found the second hearing very difficult in terms of being able to provide information clearly. He stated that he is not usually a very articulate person when it comes to speaking. He stated he found the way in which the hearing was conducted very difficult to deal with both in terms of the questions and discussion put to him and being able to provide information comfortably to the Member.
Tribunal comments regarding concerns about the conduct of the hearing
Neither the oral nor the written submissions regarding the conduct of the second hearing ask that the Tribunal Member recuse herself from the case, however, the submission can be read as if a request for recusal is implicit.
The Tribunal has considered the statements provided by the applicants’ friends both of which are dated 20 January 2020:
a.the Tribunal accepts that [Mr A] has known the second named applicant since 2008 and was a colleague of the parties for a period of time. The Tribunal accepts that the writer is aware of the family background of the couple and that the writer is of the view that the second named applicant’s father did not support the couple’s marriage and the writer had an opportunity to attend family celebrations and observe the family. The Tribunal has had regard to the writer’s claim that they are aware that the applicants received threats to their lives from the father of the second named applicant and that there is a risk to their lives if they came back to India. The statement does not state how the declarant is aware of this Nothing in the statement provided indicates that the writer personally was a witness to any threats made by the father of the second named applicant nor of any risks to the applicants. The Tribunal therefore put little weight on the statement.
b.The Tribunal accepts that by [Ms B] has known the second named applicant since 2007 and that she knows her family. The Tribunal is concerned that the statement refers to an incident involving the second named applicant and her father that occurred “near the end of December 2015”. This timing is not consistent with claims made by the applicants and confirmed at the second hearing, that the father of the second named applicant found her and tried to forcefully take her with him in January 2016. Because of the inconsistencies regarding the timing of the claimed incident, the Tribunal put little weight on the statement.
In any event, both [Mr A] and [Ms B] are close personal friends of the applicants and are not disinterested parties.
The Tribunal has had regard to the fact that the applicants first came to Australia in 2014 and returned in 2015 but did not claim protection until February 2016. The Tribunal has had regard to their oral evidence regarding the delay in lodging the visa application and the
second named visa applicant’s Statutory Declaration dated 9 January 2019 in which she states that for a number of years they tried to mend things with her family and that she always thought that her father would change and see the applicant as she does but that did not happen and when it became clear that her father was willing to kill both of them in December 2015, they knew they had no options in India.
The Tribunal does not accept that they did not apply for protection because they wanted to provide a gap and some time for the parents of the second named applicant to accept their marriage on the basis of the fact they had already been married since 2011. It is the view of the Tribunal that if they were genuinely in fear of their lives since they married, they would have lodged an application earlier. The fact of the delay undermines their veracity of their claims to fear harm.
The Tribunal has had regard to the fact the applicants returned to India in October 2014 after their first visit to Australia – moreover they returned to the city of Ludhiana where the father of the second named applicant lived. They did this even though they had not lived there since 2011. Furthermore, in late 2015 the second named applicant again returned to India and to Ludhiana. Insofar as the Tribunal is concerned, the explanations provided by the applicants do not satisfy the Tribunal as to why they returned to Ludhiana and therefore the Tribunal does not accept that the claimed incidents of harm occurred or that they face harm if they return to India because of the applicant’s father-in-law’s objection to the couple’s marriage.
At the first hearing the applicant explained that they returned to Ludhiana in 2014 because he had some friends there and thought they might help the couple and even though he was scared he thought it would be okay because Ludhiana was their hometown. The Tribunal was not convinced that people in fear of their lives would return to a town where the person who threatened them lived because they “have friends there and considered it was okay because it was their hometown”.
The Tribunal also considered the explanation provided by the second named applicant. She referred to their inability to survive without jobs. She stated that somewhere in her heart she thought she would be able to convince her parents. Given the expressed concerns of the applicants this explanation was not convincing.
The Tribunal also considered the further explanations provided by the applicants as to why they returned to Ludhiana in their written submission of 8 November 2019. In that submission it states that it was “rather very difficult to keep on travelling again and again as it was arduous to find a well-paying job in a new city every time. They had exhausted all our other options and had to resort to staying in Ludhiana despite not feeling safe and secure”. During the discussion about this explanation at the second hearing, the Tribunal noted that they had only moved to Delhi once and in that instance, they had been transferred by their employers. The applicant stated that in Delhi they had to move to a friend’s place when his father-in-law discovered where they were living. The second named applicant stated they tried other options to get jobs but don’t know the language, so they moved back to Ludhiana and her father traced them there. She stated that they had expenses such as rent, food and other living expenses.
The Tribunal was concerned that they provided different explanations in their written submissions to those which they provided in their oral evidence and was also concerned that their explanations appeared to focus on securing well paid jobs even though they were claiming that they were under threat of serious harm by the father of second named
applicant. For these reasons, the Tribunal was left with serious doubts regarding their claimed fear of harm.
Similarly, the Tribunal considered the reasons given as to why the second named applicant returned to India and to Ludhiana again in 2015 after her second visit to Australia. The Tribunal has considered the claim in the written submission of 8 November 2019 that she returned to India in December 2015 to “confront her father once and for all to settle all disputes”. In the light of claims that her father threatened to kill them both, the Tribunal finds it implausible that the second named applicant would seek to confront her father in the hope she could convince him to accept her marriage. The Tribunal also considered her further response that in India she had a job she enjoyed but in Australia she did not have a job. The Tribunal formed the view that a person holding a fear of harm would not return to the source of that harm if the fear was genuinely held and that the more likely reason she returned is because of her job.
The Tribunal notes that at various times, the applicants made inconsistent claims as to whether the applicant’s father-in-law had targeted only the applicant or both applicants. These inconsistencies undermined the veracity of their claims.
The Tribunal has considered the claims made by the applicants as to how the applicant’s father-in-law was able to locate them in Delhi. They variously claimed in either written or oral evidence that the second named applicant’s father was in the army and lived in different places and therefore has contact with police stations and that he has army and political links and that he has significant and resources and influence over state authorities.
The Tribunal was told that the claim that the second named applicant’s father has significant resources refers to his [store] and his business contacts with police stations. The Tribunal accepts that the father of the second named applicant’s father owns and operates a business called [Business 1]. The fact of the father of the second named applicant owning [store] does not of itself substantiate that he supplies [products] to police and/or the army and therefore has contacts that he can utilise to locate the couple anywhere in India.
The Tribunal accepts that the second named applicant’s father was in the army and lived in different places in India. The Tribunal was told at hearing that he retired from the army approximately 17 years earlier, so, while the Tribunal is prepared to accept that the father may have had some contact with police stations at some stages throughout his career the Tribunal finds the claims that these contacts to have such that he could utilise them to locate the applicants in a city the size of Delhi was not convincing.
The Tribunal put its concerns to the applicants that it had doubts regarding the claims made about the supply of [products] by the second named applicant’s father. The Tribunal put to the applicants that it envisaged that a government contract exists for the supply of official [products]. In response the Tribunal was told that in India there is a lot of competition to supply [products] and that you don’t need an appointment, you just need a reference that you have done good work previously and that anyone in India can start a business. The applicant subsequently submitted in writing that there is no central/government-approved dealers for selling police and army [products]. The police need to contact private dealers who give their quotes and the contract is given to the lowest bidder. Dealers then start taking orders from police stations which are located in that zone.
As outlined elsewhere, the Tribunal put information to the applicants obtained from the Department of Home Affairs, Country of Origin Information Service. The Tribunal has considered this information and the response provided by the applicants to this information.
The Tribunal accepts that there is no federal law on procurement in India, the Tribunal notes that there is a central government framework that includes various laws, regulations, and guidelines to follow. Further, the Tribunal notes that both the Punjab Police and Delhi Police adhere to the respective state’s law and/or regulations and guidance for public procurement.
The Tribunal accepts there is an online tender portal ‘Tenders Punjab’ and a public portal for the Government of India. The Tribunal has had regard to information contained in the report that internet archives show that the Punjab state government website ‘etenderpunjabgovt.gov.in’ has been active since at least 2013 and that the e-procurement platform “will be utilized by all Departments/Boards/Corporations of the Government of Punjab along with their vendors”. In addition, an e-procurement platform has been used by the Delhi police for 267 tender processes between 2001 and 2020 for the purchase of various items of [police].
The Tribunal also accepts information contained in the report that unfair practices and corruption in tender processes exist and is prepared to accept the applicants’ description of the procurement process as shambolic. However, the Tribunal finds that the information provided in the COISS report casts sufficient doubt on the applicants’ claims that the father of the second named applicant has significant contacts with police across India because he sells [products] to police and therefore was able to find their address in Delhi and sent hired goons to kill them both.
At no time did the Tribunal indicate that it expects the applicant to be an expert in tendering processes for [products] in India. Nothing in the questions put to the applicant would indicate such an expectation.
The Tribunal has considered the applicants’ claims that the father of the second named applicant was able to use his connections to discover their mobile phone numbers. While the Tribunal is prepared to accept that various information and documents may need to be presented when obtaining a new phone number, nothing in the evidence or information provided to the Tribunal satisfied it that the father’s connections, to the extent he has army and/or police links would enable him to obtain such information in a country the size, diversity and population of India.
Overall, the explanations provided by the applicants regarding the delay in their submitting their Protection visa applications and about their return to Ludhiana in 2014 were not persuasive and raised doubts as to whether they faced harm from the father of the second named applicant as claimed. Moreover, the Tribunal does not accept that the father of the second named applicant was able to locate them in Delhi because of his business interests. For these reasons, the Tribunal does not accept the applicant’s claims that the applicant’s father-in-law threatened to kill them, that he found their address in Delhi and sent hired goons to kill them both; that he tracked them down in Ludhiana after they returned from Australia; or that he found the second named applicant when she returned from Australia a second time and that he forcefully tried to take her with him. The Tribunal also does not accept that the applicant’s father-in-law and his goons are still searching for the applicant in India.
The Tribunal accepts that the applicants are members of a particular social group, being persons involved in mixed-caste marriage. The Tribunal has considered the applicants’ claims that people who adhere to strict caste-based social norms and who may become aware of the applicant’s family status may wish to harm them independently of familial issues. The Tribunal accepts that there are people in India who object to inter-caste marriages.
The Tribunal puts significant weight on country information put forward by the applicants which indicates that of between 10 and 12 million marriages each year in India approximately 9.9 percent of all marriages in India are inter-caste marriages. The information also states that about 22.5 percent of marriages in their home state of Punjab are inter-caste marriages. The Tribunal has considered the applicants’ responses regarding why they believe they would be targeted by people who have an objection to inter-caste marriages given the significant numbers of inter-caste marriages. The applicant responded that he only knows about the risks to him and that he does not know about the other people and the second named applicant stated that they have been surviving since 2011 and that she they do not know what problems others are facing and that some are happy, but some people have had problems. Nothing in the applicants’ answers provided a satisfactory response to this question although the Tribunal accepts that some people are happy and that some people have problems and honour killings do occur.
The Tribunal accepts the country information put forward by the applicants on inter-faith marriages and inter-caste marriages in India and specifically in particular regions and those involving Dalits and on women facing gender-based violence. However, some of the country information is not directly relevant to the circumstances and claims of the applicants.
The Tribunal has had regard to the fact that the applicants did not make any claims regarding any previous harm they experienced while living in India following their marriage. because of their inter-caste marriage. Nothing in the claims and evidence put forward by the applicants satisfied the Tribunal as to why they would be specifically targeted amongst the millions of couples in inter-caste marriages. In addition to these considerations, the Tribunal has also taken into consideration the numbers of people in inter-caste marriages, and therefore considering these matters together, the Tribunal does not accept that the applicants are at risk of serious or significant harm if they return to India because of having inter-caste marriage from people who object to inter-caste marriages.
The Tribunal accepts the assessment of DFAT that in most cases, couples in mixed unions will experience some form of societal and official discrimination. However, the Tribunal does not consider discrimination as serious or significant harm. The Tribunal makes this finding on the basis that discrimination is not included definitions of serious and significant harm in s.36(2)(a) and s.5J(5) of the Migration Act. In coming to this view, the Tribunal has also taken into consideration that the applicants are speak English, Punjabi and Hindi well educated and do not come from a rural area. Furthermore, country information indicates that 22.5 percent of marriages in their home state of Punjab are inter-caste marriages.
In addition, the Tribunal has taken into account country information that there is a greater government focus on honour killings in relation to inter-caste marriages and that state protection is available. Furthermore, the Tribunal has also considered that in larger urban areas mixed inter-caste marriages are more prevalent and some states are less conservative than others.
The Tribunal has had regard to claims made by the applicants in their post-hearing submission regarding the COVID-19 pandemic including the impact of government lockdowns, access to services, including health services, possible flow-on implications in regard to employment opportunities, access to accommodation and food. The Tribunal accepts these additional challenges exist. However, these are of a generalised nature applying to the population at large and are not specific to the applicants.
On the available evidence the Tribunal is not satisfied that there is a real chance that the applicants will face serious harm for reason of their race, religion, nationality, membership of a particular social group or political opinion, or for any other reason, either now or in the reasonably foreseeable future, if he returns to India. Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution in India. Therefore, they do not satisfy the criterion at s.36(2)(a) of the Act.
The Tribunal has also considered the alternative criterion in s.36(2)(aa) of the Act. The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a): MIAC v SZQRB (2013) 210 FCR 505. For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports 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 they would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore, they do not satisfy the requirements of s.36(2)(aa) of the Act.
For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) and cannot be granted the visa.
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
There is no suggestion that the applicants satisfy s.36(2) on the basis of being members of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Linda Holub 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.
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Procedural Fairness
-
Judicial Review
-
Natural Justice
-
Jurisdiction
-
Statutory Construction
0
1
0