1709004 (REFUGEE)

[2020] AATA 1536

1709004 (REFUGEE) [2020] AATA 1536 (28 APRIL 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709004

COUNTRY OF REFERENCE:                   India

MEMBER:Tamara Hamilton-Noy

DATE:28 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 April 2020 at 1:21pm

CATCHWORDS
REFUGEE – protection visa – India – imputed political opinion – father’s past political activities – Khalistan Commando Force – Shiromani Akali Dal Mann – credibility concerns – applicants’ migration history – voluntary return to India – entered and exited India legally on own passport – no apparent harm suffered – delay in seeking protection – particular social group – land dispute – internal relocation – Delhi – inter-caste and inter-faith marriage – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of India, applied for the visas on 23 August 2016. The delegate refused to grant the visas on the basis that the applicants are not persons to whom Australia owes protection obligations.  A copy of the delegate’s decision was provided by the applicants to the Tribunal.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The issue in this case is whether the applicants meet the criteria set out in s.36(2)(a), (aa), (b) or (c), that is whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of nationality

10. The applicants travelled to Australia on Indian passports.  They have at all times maintained they are citizens of India.  The Tribunal finds that the applicants are Indian citizens and has assessed their claims against India as their country of nationality.

    The applicants’ migration history

11. The Department’s decision, a copy of which was provided by the applicants to the Tribunal, sets out the applicants’ migration history, in particular the following matters:

12. The applicants both arrived in Australia [in] January 2009 on a student visa.  [The first named applicant] (‘the applicant wife’) departed Australia [in] June 2009 and returned [in] March 2010.  She departed Australia again [in] November 2012 and returned [in] February 2013. 

13. [The second named applicant] (‘the applicant husband’) departed Australia [in] January 2010 and returned [in] March 2010.  He departed Australia again [in] January 2012 and returned [in] April 2012.

14. On 19 February 2014 the applicant wife’s student visa was cancelled.  On 6 November 2014 the Migration Review Tribunal affirmed the decision to cancel the applicant wife’s student visa.  Judicial review of this decision was commenced [in] December 2015 and an application for ministerial intervention was commenced on 9 February 2016.  On 27 June 2016 ministerial intervention was unsuccessful and [in] July 2016 the applicants were unsuccessful in their judicial review application.

15. The applicant husband was detained under s.189(1) on 8 August 2016 and on 23 August 2016 the applicants made application for a protection visa.

    The applicants’ protection claims

16. The applicant wife and applicant husband each make their own claims for protection.

17. The applicant wife, in her written protection application, Department interview and submissions made on her behalf to the Tribunal, claims serious harm on the basis of:

    ·Imputed political opinion.  The applicant wife states that her father is [Mr A] and that he supported the Khalistan Commando Force who threatened him at gunpoint.  This was reported to the police and the applicant wife’s father was detained for five days and beaten.  After that he started supporting Shiromani Akali Dal Mann which led to police harassment.  He went into hiding in 2002 and in mid-2002 left India for [Country 1] where he has been granted protection.  The applicant wife’s mother was arrested in 2002 and released after paying a bribe and in 2016 joined her husband in [Country 1].

    ·Membership of the particular social group of persons in an inter-caste and inter-faith marriage.  The applicant wife states that she is a Hindu and her husband is a Jatt Sikh and they were married in February 2008.  The applicant husband’s maternal uncles are against the marriage and they fear harm from them upon return.

    ·Membership of the particular social group of persons involved in a violent land dispute.  The applicant wife states that her husband is involved in a land dispute with his father’s relatives and that the applicant husband’s father lodged a claim in court, during which he was attacked outside court and passed away two days later.

18. The applicant husband claims serious harm on the basis of:

    ·Membership of the particular social group of persons in an inter-caste and inter-faith marriage, due to his marriage to the applicant wife.

    ·Membership of the particular social group of persons involved in a violent land dispute.

19. There is a large amount of documentary evidence before the Tribunal, which the Tribunal has had regard to, in addition to the record of the Department interview conducted with the applicants by a delegate of the Department on 20 February 2017.   The applicants’ representative has provided written submissions dated 4 September 2019 and 13 January 2020, in addition to previous submissions made to the Department and contained on the Department file.

20. The first Tribunal hearing was conducted on 9 October 2019.  At this hearing the Tribunal was assisted by a Punjabi interpreter and the applicants were represented at the hearing.  An hour into the hearing, the interpreter requested a break.  Given the difficulties the interpreter appeared to be having in interpreting longer or more detailed information, the Tribunal made a decision not to proceed any further with the hearing.  Given the concerns of the Tribunal, the Tribunal had regard to background information provided by the applicant wife at the first hearing, but not substantive information provided in respect of her claims.  The matter was scheduled to resume on 29 November 2019 and the Tribunal was again assisted by a different Punjabi interpreter and the applicants were represented at the hearing.  The Tribunal was satisfied at the second hearing that the applicants were able to understand the questions put to them through the interpreter.

    Credibility

21. In assessing the applicants’ credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed.  A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to make the applicant’s case for her.  Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant (MIEA v Guo & Anor (1997) CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).

22. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face.  Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

23. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant.  In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.  Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (see: Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

24. As detailed below, the Tribunal has concerns about aspects of the applicants’ claims and evidence, in particular those that they state led them to leave India. 

25. However, other aspects of the applicants’ claims have remained consistent over time and the Tribunal accepts, specifically, that the applicant wife was born in [City 1], Haryana.  The Tribunal accepts the applicant wife’s father is currently living in [Country 1], that her mother left for [Country 1] in 2016 with her two brothers and that she does not know her father’s side of the family well. 

26. The Tribunal accepts that the applicant wife completed Year [level] and then undertook a [Discipline 1] course.  The Tribunal accepts that the applicant wife met the applicant husband in 2006 and that they were married in 2008.  The Tribunal accepts that the applicant wife is a Hindu from [a certain] caste.  The Tribunal accepts that the applicant wife did not work at all while in India.

27. The Tribunal accepts the applicant husband was born in Ludhiana, Punjab and that he lived for periods in Calcutta and Bhopal while growing up, before returning to live in Punjab between 2005 and 2009.  The Tribunal accepts the applicant husband worked [in] India between 1998 and 2005.  The Tribunal accepts the applicant husband is a Jatt Sikh and that he speaks Punjabi and Hindi.

28. The Tribunal accepts the applicants have a son, born in Ludhiana on [date].  The Tribunal accepts the applicants’ son is living in India with the applicant husband’s mother and brother.

    Return trips to India

29. The Tribunal finds that the applicant wife has returned to India on two occasions since first arriving in Australia in January 2009: for nine months between June 2009 and March 2010 and for a further three months between November 2012 and February 2013. 

30. At the hearing the applicant wife told the Tribunal that she returned to India in 2009 when she was pregnant.  Her husband was unable to find a job in Australia and had to go to Darwin and the doctor told her there were complications.  She spoke to her mother who told her to come to India and she would manage to have the delivery there.  The complications were that she was not digesting anything and was told the baby was too low and she needed to rest.  As to how the doctors were able to diagnose that the baby was too low by the fourth month of pregnancy, the applicant wife stated that they had said the placenta was very low.  The applicant wife said that she had returned to India in 2009 on her own passport and had had no problems going through the airport.  She then gave birth in a hospital in Ludhiana.

31. The applicant wife told the Tribunal that she returned to India in November 2012 as she had a [medical condition] and was in ‘too much pain’ and needed surgery.  She had no medical insurance and her doctor told her to go to India.  It was also an opportunity to see her son.  The Tribunal asked the applicant wife how long she returned for and she said that her intention was to spend less time there but the surgery was delayed.  She agreed that she had returned for three months.  In response to the Tribunal’s observation that the applicant wife’s return to India appeared to be inconsistent with her claims of being unable to return to India for fear of harm, she stated that she missed her son and ‘understand it’s my mistake’.   She stated that while in India in 2012 she stayed with her mother in [Village 1], Punjab.

32. The Tribunal accepts that the applicant wife returned to India [in] June 2009 and travelled back to Australia [in] March 2010.  The Tribunal accepts that the applicant wife gave birth to a son while in India and that her son was born on [date].  The Tribunal accepts the applicant wife’s evidence, given at the hearing, that she returned using her own passport and had no problems with authorities as she returned through the airport in India.  The Tribunal accepts her evidence that she gave birth in hospital in Ludhiana.

33. The Tribunal accepts that the applicant wife returned again to India [in] November 2012 and travelled back to Australia [in] February 2013.  The Tribunal accepts her evidence that she returned to have [an] operation and that it was also an opportunity to see her child.  The Tribunal accepts the applicant wife’s evidence that she had no medical insurance in Australia and her agent told her it was better to return to India for the operation.  The Tribunal accepts that the applicant wife stayed during this period with her mother in [Village 1], Punjab.

34. The Tribunal finds that the applicant husband has also returned to India on two occasions since first arriving in Australia in January 2009: for two months between January 2010 and March 2010 and for three months between January 2012 and April 2012.

35. The Tribunal accepts that the applicant husband returned to India [in] January 2010.  The Tribunal accepts his evidence that he returned after the applicant wife called to say she was unable to obtain a passport for their son.  The Tribunal accepts that when he returned to India he stayed with the applicant wife in [Village 2] with their son.

36. The Tribunal accepts the applicant husband returned to India [in] January 2012 and that his reasons for returning were that his grandmother was ill.  The Tribunal accepts that the applicant husband’s grandmother resided in [Village 3], Punjab.  The applicant husband told the Tribunal that his grandmother had called him and was very sick and that he was very attached to his grandmother and she told him to come to India to ‘do ritual things’.  He was the eldest so went to India to undertake the ritual himself.  His grandmother passed away six weeks later and during his time there he was at his grandmother’s house in [Village 3], some 35 to 40 kilometres away from his paternal uncles.

    Delay in lodging protection application

37. The Tribunal finds that the applicants lodged written claims for protection on 23 August 2016.  Both applicants assert that they had not lodged protection applications earlier on the basis of legal advice provided by their former immigration lawyer. 

38. The applicants provided to the Tribunal a receipt from [named company] dated [in] January 2016 for $200, described in the receipt as ‘protection visa’.  The Tribunal finds that a month after this receipt was issued, the applicants commenced the process of Ministerial Intervention.  The protection visa application was only made two weeks after the applicant husband was detained by Immigration under s.189(1).  The Tribunal considers it implausible that the applicants would proceed through ministerial intervention rather than apply for protection if they feared harm in returning to India.  The Tribunal does not accept that the significant delay in the applicants claiming protection was due to receiving legal advice that it was preferable to pursue other visa avenues at the time. 

    Claims based on imputed political opinion

39. The applicant wife claims to fear harm if returned to India for reasons of her imputed political opinion arising from her father’s past political activities.  The applicant wife’s statutory declaration provided to the Department stated that her father supported the creation of Khalistan and was associated with Sikhs agitating for proper treatment of the Sikh community, that her father had refused to give members of the military financial support, that members of the Khalistan Commando Force threatened her father at gunpoint and he was subsequently detained by the police and beaten, and that her father started to support Shiromani Akali Dal Mann in 1999 and was arrested by the police and beaten and tortured and then left in 2002 and went into hiding.[1]

    [1] Statutory declaration signed by applicant wife 17 February 2017.

1. At the Tribunal hearing the applicant wife told the Tribunal that she was born in [City 1], Haryana and that her father left for [Country 1] in 2002 and was granted protection in 2014.  The applicant wife stated that her mother went to [Country 1] in 2016 and that she has two brothers who have been in [Country 1] with her parents since 2016.  As to her mother’s travel to [Country 1], the applicant wife stated she was not sure whether her mother had travelled out of India on a valid passport and her mother had told her she was given something in a sealed envelope; she had been living in hiding in Punjab, Delhi and Rajisthan and had exited India through Delhi airport.  The applicant wife stated that her brothers had left on valid passports and her father had arranged everything.

2. The Tribunal asked the applicant wife to explain how she had been living ‘in hiding’ while in India and she said she had lived in [City 1] for 12 years with her grandparents and from [age] to [age] years of age was in Punjab, that she lived for two years in hiding and then studied [Discipline 1].  Later in the second hearing the applicant wife stated she had completed Year [level] in the village in [City 1] and then had attended high school in Punjab while living with her father.

3. The applicant wife claims that her mother was taken away after her father left for [Country 1].  She gave evidence to the Tribunal that her mother had been taken away by people not in uniform while she was in secondary school.  In her written statutory declaration dated 17 February 2017 she stated that she found out her mother was taken by police after the incident, that they were armed and asking about her father and that they harassed her mother and asked her for money.

4. The applicant wife was asked by the Tribunal why her father, as a Hindu, would support a Sikh separatist state and she stated that where her father had been living they were surrounded by Sikhs and all of his friends were Sikh.  The Tribunal asked what activities the applicant wife’s father had taken part in and she responded, ‘Whatever the story has been told is from my father to me’.  As to what her father had done that had made him a target from authorities, the applicant wife stated that she didn’t know but they were asking the family for money.

5. The applicant wife submitted that she would be at risk of harm due to her father’s past political activities if she were to return to India because after her father left ‘they’ were harassing her mother and her mother put her in a hostel.  After being in the hostel she came to Australia and did not return to Punjab and she has no family members living in India.  As to why she would be at risk outside of Punjab because of her father’s political views, the applicant wife stated it was because she always lived in hiding herself and when her father left they were harassed and her father tells her it is not safe for her.

6. During the hearing the Tribunal put a piece of information to the applicant wife under s.424AA, being a record of a community status resolution interview undertaken with the applicant wife on 26 August 2016, where the applicant wife had stated she first discovered the need for protection when they left India; that her in-laws were looking after her son and had moved to different parts of India because of a land dispute; that the applicant wife had asked the interviewer if she had had enough and decided to depart, would she be allowed to do that; that the interviewer said it was interesting the applicant wife was prepared to return to a country despite seeking protection and the applicant wife had said the protection was more for her husband; she then asked if she wanted to return what would happen to her husband’s application.

7. The Tribunal stated to the applicant wife during the hearing that the information was relevant because it indicated that the only reason the applicant wife could not return to India was because of the land dispute and that the protection is more for the applicant husband.  The Tribunal stated that if it relied upon this information the Tribunal may find that the applicant wife does not fear serious harm upon return for reasons of her inter-faith, inter-caste marriage or for reasons of her imputed political opinion.  This, subject to any comment or response made by the applicant wife, would be the reason, or part of the reason, for the Tribunal affirming the decision under review. 

8. The applicant wife stated that she understood the information and understood why the information was relevant to the Tribunal’s decision and that she wanted further time to respond to or comment on the information.

9. This information was sent to both the applicant wife and applicant husband (jointly) under s.424A following the hearing.  The applicants’ representative submitted in response that the relevant context was that the applicant husband was in immigration detention and possibly subject to forcible removal to India, the couple wished to stay together even if doing so would expose them to risks they feared on return to India and the applicant wife’s heightened emotional state; and does not detract from the applicant wife’s evidence under oath or undermine her credibility generally.

10. The Tribunal put a second piece of information to the applicant wife under s.424AA, from a community status resolution interview on 23 February 2016.  The notes of the interview said that the applicant wife attended with her husband and brother-in-law; the interviewer advised there was no time frame for ministerial intervention; and the applicant wife stated they would be better off retuning to India to be with their child and apply for another type of visa to return to Australia.

11. The Tribunal stated to the applicant wife that the information was relevant because it indicates that as of February 2016 she was prepared to return to India and apply for a different type of visa to return to Australia.  The Tribunal stated that if the Tribunal relied on this information it may cause the Tribunal to find that the applicant wife does not have a subjective fear of serious harm upon return to India for any reason.  This, subject to any comment or response, would be the reason, or part of the reason, for affirming the decision under review.

12. The applicant wife stated that she understood the information and understood why the information was relevant to the Tribunal’s decision and that she wanted further time to respond to or comment on the information. 

13. This information was sent to both the applicant wife and applicant husband (jointly) under s.424A following the hearing.  The applicants’ representative submitted in response that the context in which the discussion had occurred was a discussion about bridging visas following a request for ministerial intervention; that the delegate had provided a brochure about their immigration status which did not indicate they could apply for protection; and they had by that time already received advice from a former representative about not making a protection application.

14. The Tribunal is prepared to accept that the applicant wife’s father is currently residing in [Country 1].  The applicant wife provided to the Tribunal a one-page typed document headed ‘Immigration Court’ purporting to be a summary of an oral decision entered [in] May 2014, with a cross next to ‘Respondent’s application for asylum was granted’; and notations of ‘not reached’ next to application for withholding of removal, relief under the Convention Against Torture and ‘other’.   The applicant wife did not provide a formal document reflecting that her father had been granted protection in [Country 1].  She provided identification, employment, social security and a page of a passport relating to her parents, all of which were issued in 2016.  For the reasons stated below, the Tribunal does not accept that the applicant wife’s parents were granted asylum in [Country 1] for the reasons claimed by the applicant wife.

15. When asked about her claims at hearing, the applicant wife was unclear in her evidence as to whom she fears harm from due to her father’s past political activities.  While she had provided a level of detail in a statutory declaration prepared in support of her claims, she was unable to provide any information to the Tribunal at the hearing about her father’s activities.  For example, when the Tribunal asked her about her father’s activities she stated, ‘Whatever the story has been told is from my father to me’; and when the Tribunal asked what activities her father had undertaken that had made him a target, she stated she didn’t know and was unable to provide any examples to the Tribunal.

16. Further, the Tribunal finds it implausible that the applicant wife’s father, a Hindu, became so involved in Sikh separatist activities that he was detained and tortured by police due to his views.  The Tribunal considers it implausible that the applicant wife’s father fled India because of his political activities.  The Tribunal accepts that the applicant wife’s father has been living in [Country 1] since 2016; however, the Tribunal does not accept that the applicant wife’s father fled India as a result of his political activities.  The Tribunal does not accept that the document purporting to be prepared by an Immigration Court in [Country 1] is a genuine document.

17. Further, the applicant wife was unable to explain in any detail to the Tribunal in what way she had lived in hiding.  The Tribunal is prepared to accept that the applicant wife lived with her grandmother for a period of time while she was young and that she lived in a smaller village while growing up.  The Tribunal accepts the applicant wife’s evidence that she attended school up to Year [level] and then attended a [Discipline 1] course while staying in a hostel away from Punjab.  The Tribunal finds that the applicant wife was enrolled to attend primary and secondary school.  The applicant wife was unable to clarify in her evidence to the Tribunal how she had lived in hiding in circumstances where she was registered to attend school.  Her enrolment in schooling is inconsistent with her having lived in hiding throughout her childhood and the Tribunal finds that the applicant wife did not live in hiding during her childhood as a result of her father’s political views or activities.

18. Further ,the Tribunal finds from the applicant wife’s evidence that she left India on a valid passport through the airport.  The Tribunal finds that this is inconsistent with the applicant wife having been in hiding from authorities due to imputed political views arising from her father’s political activities.

19. Further, the applicant wife returned to India between June 2009 and March 2010 to give birth to her son and again between [November] 2012 and [February] 2013 for [an] operation.   She travelled on her own passport and did not give evidence of having encountered any difficulties during her returns to India.  The Tribunal finds that the applicant wife was able to reside in India for 12 months over two return trips, without encountering any difficulties.

20. The applicant wife’s inability to give any level of detail to the Tribunal about her father’s activities and any credible detail about how she had been living in hiding, the implausibility of her father supporting a Sikh separatist state, the applicant wife’s return trips to India and the statement she made in a Community Status Resolution interview that the need for protection is more for her husband, all lead the Tribunal to have significant doubts about the credibility of the applicant wife’s claims.

21. The Tribunal does not accept the applicant wife’s father supported the creation of Khalistan and was associated with Sikhs agitating for proper treatment of the Sikh community, that the applicant wife’s father had refused to give members of the military financial support, that members of the Khalistan Commando Force threatened the applicant wife’s father at gunpoint, that the applicant wife’s father was detained by police and beaten, or that the applicant wife’s father started to support Shiromani Akali Dal Mann in 1999 and was arrested by the police and beaten and tortured and left in 2002 and went into hiding.  The Tribunal does not accept the applicant wife’s mother was arrested in 2002 and released after paying a bribe or that the applicant wife’s mother was taken away by people not in uniform while she was in secondary school.

22. The Tribunal finds there is not a real chance the applicant wife or the applicant husband will face serious harm if they return to India, now or in the reasonably foreseeable future, because of the applicant wife’s father’s political activities, or because of their political opinion or imputed political opinion.

    Claims based on applicant husband’s land dispute

23. The applicant husband provided to the Department a statement in support of his claims.  In respect of the land dispute, the statement stated, in relevant part:[2]

    [2] Statutory declaration 17 February 2017

    My family faced a lot of trouble because of a long-running property dispute.  My great-grandfather, [Mr B], gave all of his property to my father, and other relatives, particularly my grandfather’s brother’s family, were unhappy.  Those relatives were very politically strong.  They had links with the ruling party, who are also in power now.

    My father was attacked on a number of occasions.  The main aggressors were [Mr C] and [Mr D].  The first time he was attacked by a group, some of whom he knew, with sticks and rods.  He was seriously injured.  They were also threatening him and putting pressure on him to leave and to sign documents transferring the land.  He tried to get help from police and ministers but there was no help.

    …

    The land in question was worth millions in rupees.  It was agricultural land, which is the most expensive, and it was on a river and a highway in a popular area.  It was valuable for development.  [Produce] were growing.

    My family were forced to flee Punjab in 1977 because of the attacks. He and my mother moved to Calcutta.  My grandfather and grandmother also fled with them.

    My father lodged a case in Punjab in the district courts about the land disputes because the land that was rightfully ours and was being lived in and used by the other relatives.

    The case that he initially lodged in the court somehow disappeared – there was never a decision for the matter and it was like it never existed.  Then somehow the case was turned against him and he became the defendant in the matter.  We have no idea how this happened but believe that it had something to do with political pressure.

    My father had tried to make a lot of complaints to the Indian Police but due to political pressure and bribes, they never registered the complaints.  The police will never go against a political party – really this is who they work for, not the public.

    The disputes first started after my great grandfather wrote his will and left all of his property to my grandfather, despite the fact that my great grandfather had two other sons.  He left his money and property to my grandfather as he was the only one who looked after him when he was sick.  None of his brothers cared for him.

    My father lodged the court proceedings in secret.  He hoped that it would resolve things as they were living in poverty, and he wanted to sell the land and live elsewhere where we could be safe.  No one in Punjab will buy disputed land, so we had to resolve the matter.

    After we fled, my father was [working], and he was attacked again a couple of times in West Bengal.  I was very young at the time.  During one attack, the attackers kept hitting my uncle on his leg.  When my uncle was taken to hospital, the only option was to have his leg amputated.  My uncle was very scared that if he went to the police that they would come back and find him and hurt him more.  I know that at least one of the attacks was by the same people.  They also looted my father’s [vehicle].  His arm and right leg were broken.  My father was being pressured to sign papers about the property but he would not do it.  The attackers were always able to find my dad, no matter where we had moved to because of their connections with members of the community in high positions.

    After this attack, in 1993, my father had to move again.  This time, we went to Bhopal, and because my father could no longer [work], we started a [business]. It was not a building – it was essentially a shed made from bamboo and a small cabin.  I moved back to Calcutta in 1995 until 1998 because a family friend had promised to look after us and I tried to look after the [business] – I was about [age] or [age] years old.  I left school in 1996 and studied from home and tried to look after my family until I finished school in [year].  It was a very hard time.

    My father returned to Punjab in 1997 for a court hearing about the dispute.  When he returned, he was threatened by [Mr C] and [Mr D], and he reported them to the police.

    [In] November 1997, my father was attacked outside the court before the hearing.  The attackers were trying to stop him from going into the court.  He was walking and they came from the back. They hit him in the head very hard, and he fell to the road.  They would have thought he was dead.  He was then taken straight to hospital.  That is why the judgment states that he appeared “ex-party”.  He was in hospital for two days, and then he died.  He started speaking on the second day in hospital.  After his death, I tried to continue the business, but I could not.  Police did normal formalities but nothing more: they refused to investigate.  The court case did not proceed.

    ….

    I cannot return to India.  I have already moved to many different states in India.  I have lived in Punjab, West Bengal, Madhya Pradesh, Haryana, Rajasthan, Uttar Pradesh, Uttra Khand.  I have had many different addresses in each state to avoid being found by my maternal family.  They were able to find me in even the places where I thought that they wouldn’t be able to find me.

24. At the hearing the applicant husband told the Tribunal that he had been born in [Village 4], Ludhiana and had lived there until 1986.  His father then took him to Calcutta in 1986 and they lived at two different addresses while in Calcutta.  From 1993 to 1995 he lived in Bhopal and from 1996 to 1997 he returned to Calcutta for high school.  After 1998 he was back in Bhopal and from 2005 to 2009 he lived in Punjab.

25. The applicant husband stated that his family had moved to Calcutta in 1986 because of the land dispute and had left him there.  The Tribunal asked the applicant husband whether he had lived in any other states and he said when his father passed away he was [in a certain role] and didn’t stay in one place; but he went to all states while [working], because he had fear.  He started [working] in 1998 in Bhopal [and] did this until 2005 when he returned to Punjab.  When his father passed away he was [working] to support the family and because of fear.  As to why he had returned to Punjab in 2005, he said it was because of the property dispute in Punjab.

26. The applicant husband told the Tribunal that the land in dispute is in [Village 5] and is [number] acres, near a river, on which [produce] are grown.  The land is under his name but is used by his uncles at present.  The applicant husband stated that after 2010 he wanted to resolve the matter of the land and in 2012 he was ‘thinking to resolve the matter’.  The Tribunal asked whether he had approached the court at all and he said they were not giving it to him because the police are very strong and the court gives orders.  The Tribunal asked again whether the applicant husband had approached the courts and he said no, he went to the leader of the village.  He then stated yes, he had put a court application [in] March 2012; he had submitted his application but had not heard anything from the court.

27. The applicant husband stated that he has [number] uncles, all residing in Punjab.  As to why he would be unable to live in a state outside of Punjab, he stated he always fears wherever he goes that they will find him like his father.  The Tribunal asked whether the applicant husband had lived in Haryana and he said yes, then no, and then stated that when he was in the city he travelled to all states.  The Tribunal observed during the hearing that the applicant husband’s representative had made written submissions that he had lived in a number of states but that it appeared from his evidence that he had not.  The applicant husband stated in response that he had given evidence of where he actually lived and couldn’t live in one place.  The weight placed by the Tribunal on these inconsistencies is discussed in further detail, below.  The Tribunal asked the applicant husband how the uncles would find him in another state given the population of India and he said because they are linked with parties and every party has offices in each state and they may find him with his [or] with a photo.

1. The applicant wife gave evidence consistent with that given by the applicant husband as to the location and history of the land in dispute.  The Tribunal asked the applicant wife where her husband had lived growing up and she said he grew up in [Village 4], had lived in Calcutta between 1986 and 1992 and then had moved to Bhopal West. 

2. The Tribunal asked the applicant wife why they would be at risk because of the land dispute if they moved to an area outside Punjab and she stated it is very easy for ‘them’ to find her husband because of their links and they will think that if he is alive they can come and get the land back.

3. The applicants both gave evidence to the Tribunal about their son, currently in India, residing with the applicant husband’s mother and brother.  The applicants both submitted that their son is living in hiding with the applicant husband’s family members because of the land dispute.

4. The applicant wife told the Tribunal that her son is with her mother-in-law and she is not aware where they are living; that her last contact with them was a few days prior to the hearing and at that time they were in Delhi; but their intention was to move away from Delhi.  The applicant wife told the Tribunal that she does not phone her mother-in-law, but when it is safe her brother-in-law rings her and they speak to their son during the call.  The Tribunal asked the applicant wife why they do not ring her mother-in-law and she said her brother-in-law is living in hiding and working secretly and will only talk ‘when it is safe’.  The Tribunal asked why it would be unsafe for them to ring their son in India and the applicant wife stated that they are scared the applicant husband’s cousin is trying to locate their son because he has inheritance of the property.  The Tribunal asked how a phone call would put their son at risk and the applicant wife said her mother-in-law is elderly and nervous and was attacked in 2017.

5. The Tribunal asked the applicant wife about further documents provided to the Tribunal, setting out information that her mother-in-law had been run over by a car in May 2017.  She stated that her brother-in-law had obtained the information about the witness and had had the statement and invoices prepared for the current Tribunal proceedings.  She stated that the place of the accident was 10 to 15 minutes away from the hospital where her mother-in-law was taken.  As to how the accident and the hospital assessment could both have happened at 10:30am, she stated that she knows a little bit about it and her mother-in-law had treatment somewhere else as well.  The Tribunal noted that the most recent DFAT report on India states that several sources claim that the manufacture and use of fraudulent documents is prevalent in India, including for immigration purposes.  The applicant wife stated in response that she was not there and whatever was told to them had been provided to the Tribunal.

6. The Tribunal also asked the applicant husband about this incident and he stated that someone had phoned his mother, saying that someone had inquired about their child.  His mother was scared and ran to collect his child and a vehicle hit her, then backed away and hit her again.  His mother was unconscious.  The person who took her to the hospital thought she had died.  His brother then collected his child from the playground.  He thinks it is his uncle who has done this.

7. The Tribunal asked the applicant husband how the driver was tracked down to provide a statement and the applicant husband stated that the driver had taken his mother to the hospital and the doctor had asked for the contact number.  His mother stayed in hospital for two days.  As to whether there were any photos of the scarring to her head, he stated that there may be some photos.  As to why he believes his uncles were behind the attack, he said that it was because they wanted to harm him or his son.  His mother had an x-ray of her ribs. As to whether his mother had had investigations into her brain, he said he doesn’t know; his mother has said she doesn’t want to discuss everything because she doesn’t want to upset him.  The Tribunal observed that the witness statement and the statement by the doctor examining his mother appeared to refer to the same time and the applicant husband stated in response that these are the documents he got from them and he ‘doesn’t know’.  

8. The Tribunal had regard to a translated copy of a will made by [Mr B], leaving his property to his grandson, [Mr E], contained on the Department file.  The Tribunal is prepared to accept the applicant husband’s great-grandfather left his property to the applicant husband’s father.  The Tribunal accepts that the land in question is five acres in [Village 5], Punjab and is agricultural land near a river that is able to be used for crops.  The Tribunal is prepared to accept that the land is in the applicant husband’s name but is being used by his paternal uncles.

9. The Tribunal is prepared to accept that the applicant husband’s paternal family was unhappy with his father receiving the land in [Village 5], in particular, two of the applicant husband’s uncles, [Mr D] and [Mr C].  This claim is consistent with the country information considered by the Tribunal, and summarised and discussed with the applicants during the hearing, that property disputes in India are prevalent.  Specifically, that a third of civil cases in lower courts in India involve property disputes, and that this has been fuelled by a chronic land shortage, which has led to a significant increase in property values.[3]  The Tribunal accepts the applicant husband was involved in a property dispute with his paternal uncles prior to leaving India.

   [3] Department of Immigration and Border Protection, ‘India: Land disputes and moneylenders in Punjab’, October 2013.

10. The applicant husband claims that his family fled Punjab for Calcutta because of the land dispute.  In his statutory declaration he stated this was in 1977; in his written protection application and at the hearing he stated this was 1986.  The Tribunal is prepared to accept that this discrepancy is due to the then-young age of the applicant husband at the time his family relocated.  The Tribunal finds that the evidence given by the applicant husband as to his family’s movements while he was a child were given consistently across his written protection application and Tribunal hearing and accepts from this evidence that the applicant husband was born in Punjab and lived in Punjab until 1986; that he then moved with his family to Calcutta, West Bengal, and remained there until 1993; that between 1993 and 1995 he resided in Bhopal, Madhya Pradesh; that from approximately 1995 until 1998 he returned to Calcutta; that he returned to Bhopal between 1998 and 2005 or 2006; and from 2005 or 2006 until he left India he lived in Punjab.

11. The applicants’ representative submitted that the applicant husband has unsuccessfully sought safety in Madhya Pradesh, Haryana, Rajasthan, Uttar Pradesh and Uttra Khand.  The representative submitted on behalf of the applicant husband that when the applicant husband lived in Bhopal he was not attacked by [Mr C] or [Mr D], but the police would occupy the seats in his restaurant, eat without paying, break things and harass staff and customers and on one occasion his staff was threatened.  He then spent time moving from state to state in an attempt to stay alive.[4]

    [4] Written submissions dated 10 March 2017.

12. The applicant husband also submitted that relocation to an area other than Punjab would be impossible as he has already lived in a number of states across India.  The applicant husband submitted in his statutory declaration that he has resided in West Bengal, Madhya Pradesh, Punjab, Haryana, Rajasthan, Uttar Pradesh and Uttra Khand.  This is inconsistent with his oral evidence to the Tribunal at the hearing about his address history and the addresses he provided in his written protection application.  The Tribunal asked the applicant husband about his claims to have lived across a number of states during the hearing and he stated in response that he had been [working] after his father passed away and did not stay in one place.  He was asked specifically about his claims to have lived in Haryana and he stated yes, then no to the Tribunal and then stated he had ‘travelled’ to all states.  The Tribunal accepts the applicant husband’s evidence that he lived in residences in Punjab, West Bengal and Madhya Pradesh before he left India and that he travelled across a number of states while he was [working].  Given the inconsistencies in the applicant husband’s evidence, the Tribunal does not accept that the applicant husband lived in Haryana, Rajasthan, Uttar Pradesh or Uttra Khand to avoid being found by his maternal family, or that his maternal family were able to find him even in places he thought they wouldn’t be able to find him.  The Tribunal does not accept the submissions of the representative that the applicant husband lived in Rajasthan and Uttar Pradesh and that he lived at each location for approximately two months.[5]

    [5] Representative submissions 13 January 2020.

13. As to the harm arising from the land dispute, the Tribunal is prepared to accept that the reason for the applicant husband’s family relocating to Calcutta in 1986 was due to the land dispute.  The applicant husband submitted in his statutory declaration that his uncles [Mr C] and [Mr D] had attacked his father, although the year this occurred and any other details were not provided.  He also submitted in his statutory declaration that his father was attacked while [working], his uncle was hit on the leg and had to have his leg amputated and that his father’s arm and leg was broken.  The applicant husband submitted that they were always able to find his father because of their connections with members of the community in high positions. 

14. The applicants also claim that their son is living in hiding with the applicant husband’s mother and brother.  The applicant wife claims that they ring their son only when it is ‘safe’.  The applicant wife was unable to explain to the Tribunal why a phone call from them to their son would put their son at risk.  The Tribunal accepts the applicants’ son is currently living with the applicant husband’s mother and brother in India.  However, the Tribunal finds it is implausible that the applicants’ contact with their son is restricted because phoning him from Australia to India puts their son’s safety at risk.

15. The applicants claim that the applicant husband’s mother was attacked in 2017.  Neither applicant was able to explain why the statutory declaration of the stated witness declared the accident happened at the same time the hospital admission occurred.  The Tribunal does not accept that the applicant husband’s mother was contacted by phone and advised that someone had inquired about the applicants’ son.  The Tribunal does not accept that the applicant husband’s mother went to collect the child, that a vehicle hit her, or that she ended up in hospital with injuries.  The Tribunal does not accept that the applicants’ son is living in hiding with the applicant husband’s mother and brother or that he is not currently enrolled in school because he is in hiding.  The Tribunal does not accept that the applicants’ son is at risk because of the applicant husband’s land dispute.

16. The Tribunal is prepared to accept that the applicant husband’s father lodged court proceedings to resolve the land dispute and that he returned to Punjab in 1997 for a court hearing, that he was threatened by [Mr C] and [Mr D] and that he reported this to police.  The Tribunal was provided a document prepared by [Hospital 1] dated [in] November 1997, stating that [Mr E] was admitted to hospital [between] November 1997 [and] November 1997 and that ‘during treatment he died in the hospital’.  The Tribunal considered this document of little probative value in establishing that the applicant husband’s father died as a result of a land dispute.  Photos of a male, apparently deceased and with no identifying information, were also provided by the applicant husband to the Department; the Tribunal similarly considered these of little probative value. 

17. The country information considered by the Tribunal, and summarised and discussed with the applicants at the hearing, states that Indian media report that land disputes may result in violence and sometimes death.[6]  The Tribunal is prepared to accept the applicant husband’s father was attacked [in] November 1997 and that he died [in] November 1997 from the attack.

    [6] Department of Immigration and Border Protection, ‘India: Land disputes and moneylenders in Punjab’, October 2013.

18. The Tribunal is prepared to accept that the applicant husband fears harm at the hands of his two uncles as a result of the land dispute.  The applicant husband submits that the uncles are involved with the Congress Party and the BJP, however, no independent evidence has been provided to substantiate the uncles’ membership of a political party. The Tribunal does not accept that the applicant husband’s uncle [Mr C] is associated with the Congress Party or that his other uncle [Mr D] is a member of the BJP.

19. The Tribunal is prepared to accept that the applicants fear serious harm from the applicant husband’s uncles because of a violent land dispute if they return to Punjab.  The Tribunal is satisfied that the essential and significant reason for this is because they are individuals involved in a violent land dispute.  The Tribunal is satisfied there is a real chance the applicants face physical violence if they return to Punjab, now or in the reasonably foreseeable future. 

20. As to whether the risk to the applicants exists outside of Punjab, the Tribunal has had regard to a UK Home Office country background note from January 2019, which states that Delhi is one of the largest cities in India and has a population of 16.3 million people.[7]  The Tribunal also discussed with the applicants during the hearing a UK Home Office report from 2015, which states that the possibility of the police or any person or body being able to locate, at the behest of an individual’s family, a person who had fled to another state or territory in India was remote.[8]  The applicants stated in response to this information that the applicant husband’s brother was living in Delhi the last few months and has moved to Himachal.

    [7] UK Home Office, Country Background Note India, January 2019 at p9.

    [8] UK Home Office, Country Information and Guidance, India: Background information, including actors of protection and internal relocation, February 2015, at 1.2.8.

21. The Tribunal has not accepted the applicant husband’s uncles are members of political parties and the applicants have not submitted that the uncles would be able to find them outside of Punjab for any other reason.  The Tribunal finds from the country information that the ability of the police, a person or a body to locate an individual who has fled is remote.  The Tribunal finds that if the applicants returned to a state other than Punjab the applicant husband’s uncles would be unable to find the applicants.  The Tribunal finds that the real chance of persecution feared by the applicants does not relate to all areas of India.

22. The Tribunal finds there is not a real chance the applicants will be able to be located by the applicant husband’s uncles if they return to an area outside Punjab.  The Tribunal finds that the real chance of being physically harmed or killed by the applicant husband’s uncles does not relate to all areas of India.  The Tribunal is not satisfied that the applicants face a real chance of persecution because of the applicant husband’s involvement in a land dispute.

    Claims based on inter-caste, inter-faith marriage

23. The applicants claim to fear harm from the applicant husband’s maternal uncles, on the basis of their inter-caste, inter-faith marriage.

24. The applicant wife, in her statutory declaration dated 17 February 2017, said that the applicants met in 2006, that the applicant husband is a Jatt Sikh and she is Hindu.  The applicant wife, in her statutory declaration, stated that the applicants were married in Ludhiana [in] February 2008 and were protected by the family of [Mr F], as the applicant husband’s family had told the applicant husband they would kill both the applicants by an honour killing.  The applicant wife stated that the applicant husband’s maternal uncles found out they were getting married and that [Mr F] was warned by a friend in the village that the uncles had left the village and were on the way to the court house.  The applicants were taken home by [Mr F] after registering their marriage and they then moved to [Village 2] where a religious wedding ceremony was conducted.

25. The applicant wife told the Tribunal that her husband’s uncles are very religious and, because of their marriage, are wanting to kill them, in particular her.  Her husband has four uncles but she only knows two of them, [Mr G] and [Mr H].

26. The applicant wife gave evidence at the Tribunal hearing that on [her birthday in 2008], she and her husband were going to a Sikh festival at [the] temple when her husband recognised his maternal uncle and they ran back to [Village 2].  The Tribunal asked what had happened and the applicant wife said they had changed bus and the maternal uncle was not aware they were there, that they had not talked to them or contacted them and that the last time the uncles had threatened to kill them was when the applicants were getting married.  There was no contact with the maternal uncles on the day of the festival. 

27. The applicant husband stated to the Tribunal that when he married the applicant wife his family was ok.  His mother’s family is very religious and his mother’s brothers, [Mr G], [Mr I], [Mr H] and [Mr J], were not happy with the marriage because his wife is a different religion.  The Tribunal asked what they had done and the applicant husband stated that they are very traditional people and don’t want out-of-caste people to ‘enter their people’; they were saying if they got married they would kill her.  This was when they were going to get married and they have had no contact with them since then.

28. The applicant husband gave evidence that when he returned to India in 2010 for three months, he stayed in [Village 2] with his wife and son.  At that time he was not able to obtain a passport for his son because when they were near the court they received a phone call that his maternal uncle had located them and knew they were there.  The applicant husband stated that he was ‘thinking someone was following them’.  His son was with his wife’s mother at court and they told her not to come and left and took the bus.  They called [Mr F] and said they had been found; he said to take the bus to Delhi and he would bring their things.

29. The Tribunal asked the applicant husband how he knew someone was following him and he said he found a person keeping an eye on them and was scared.  In response to questions by the Tribunal, he said he had purchased a one-way ticket to fly to India and [Mr F] booked the return ticket for them.  As to why he had purchased a one-way ticket for India he said it was because he was not sure how much time it would take.

30. The Tribunal accepts the evidence of the applicants that they met in 2006 and that the applicant husband is Jatt Sikh and the applicant wife is Hindu.  The Tribunal accepts the applicants were married in Ludhiana in 2008.

31. The country information considered by the Tribunal, and discussed with the applicants during the Tribunal hearing, states that India is officially secular and multi-ethnic and that inter-faith and inter-caste marriages are legal.[9]  DFAT states that according to local sources, violence associated with inter-religious or inter-caste marriage is more prevalent in Haryana, Uttar Pradesh and Rajasthan, especially if a Muslim man is involved or the man is from a lower caste than the woman.  DFAT sources noted, though, that acceptance of marriages depends heavily on individual family beliefs.[10]  During the hearing the applicants commented on this information and stated that the applicant husband’s side has an issue and he is Jatt Sikh and it is not acceptable to bring another caste into the family and he believes he has spoiled their reputation.

    [9] DFAT Country Information Report India, 17 October 2018, at 3.42.

    [10] DFAT Country Information Report India, 17 October 2018, at 3.45.

1. The Tribunal is prepared to accept that the applicant husband’s four maternal uncles, [Mr G], [Mr I], [Mr H] and [Mr J], did not approve of the applicants’ marriage on the basis that it is an inter-caste, inter-faith marriage.  The DFAT information considered by the Tribunal indicates that parents in India often assume sole responsibility for deciding whom their children marry, particularly in northern India, and that many parents may not accept their son or daughter choosing their own spouse.[11]

   [11] DFAT Country Information Report India, at 3.43.

2. The applicant wife gave evidence about an incident she stated occurred [in] 2008 when she and the applicant husband were going to [the] Temple.  The applicant wife did not give evidence of having had direct contact with the applicant husband’s maternal uncles on this date.  The Tribunal is prepared to accept that the applicants were travelling to [the] temple [in] 2008, that they saw the applicant husband’s maternal uncles and that they returned to [Village 2] after seeing them.  The Tribunal finds that the applicant husband’s uncles did not have any direct contact with the applicants on this date.

100.   The applicant husband gave evidence of an incident in 2010 when he returned to India.  The applicant husband’s evidence as to what he observed on this date was given in a vague manner.  The Tribunal finds it implausible that the applicant husband received a phone call saying someone was following them or that the applicants were able to travel directly to the airport and obtain a flight out of India.  The Tribunal does not accept the applicants were followed by the applicant husband’s maternal uncles, or by anyone else, in 2010 when they had returned to India.

101.   The Tribunal is prepared to accept that the applicants have a subjective fear of harm from the applicant husband’s maternal uncles on the basis of their inter-faith, inter-caste marriage.  However, the Tribunal has not accepted that the uncles had any contact with the applicants in 2008 or 2010 and finds that the applicants have not had contact with the applicant husband’s uncles since their marriage in February 2008.  The applicant wife was able to live in India for some 12 months during two return trips, and the applicants both resided in [Village 2] for three months when they returned to India, without incident.  It is now some 12 years after their marriage and 12 years since they have seen the uncles.  The Tribunal finds there is not a real chance the applicants face serious harm from the applicant husband’s maternal uncles if they return to India now or in the reasonably foreseeable future.  The Tribunal is not satisfied that the applicants face a real chance of persecution because of their inter-caste, inter-faith marriage.

Cumulative claims

102.   The Tribunal has also considered whether the applicants are at risk because of their involvement in a land dispute, their inter-faith and inter-caste marriage and their political opinion or imputed political opinion.  However, even when considered cumulatively, the Tribunal is not satisfied that the applicants face a real chance of persecution in all areas of India.

103.   The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

104.   Having concluded that the applicants do not meet the refugee criteria in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

105.   The Tribunal finds that the applicants have both previously, separately and after marriage, resided in Punjab.  The applicant husband’s land and family are in Punjab.  The Tribunal finds that if the applicants return to India they are likely to return to Punjab.

106.   The Tribunal has found, above, that there is a real chance that the applicants will face serious harm from the applicant husband’s paternal uncles if they return to Punjab.  The Tribunal is satisfied that the harm feared from the paternal uncles amounts to cruel or inhuman treatment of punishment and is significant harm.

107.   However, the Tribunal has had regard to country information relating to internal relocation in India.  This information was summarised and discussed with the applicants during the hearing and they were invited to comment on the information. 

108.   DFAT notes that internal relocation may be limited by language barriers, lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities, and discrimination based on ethnicity, religion, caste or gender.  However, India is multi-lingual and multi-ethnic, and bilingual or multilingual internal migrants have better opportunities for internal relocation.  DFAT assesses that individuals seeking protection from discrimination or violence have a wide range of viable internal relocation options, although these may be more limited for some individuals depending on their personal circumstances.[12]

[12] DFAT Country Information Report India, 17 October 2018, at 5.16 – 5.19.

109.   The DFAT thematic report on Punjab also notes that DFAT assesses that internal relocation may be a viable option for people in Punjab seeking to avoid certain types of mistreatment.  New Delhi in particular is a popular destination for many people from Punjab seeking improved economic opportunities and relatively greater social freedom.  DFAT also notes, however, that attempts to relocate internally to avoid harm may not be successful.  For example, there are reports of honour killings of people who have relocated internally to avoid the consequences of having relationships against the wishes of their families.  In some cases the families have convinced them to return by pretending to accept the relationship before performing an honour killing; in other cases the families have followed the couple to their new city of residence before attacking them.  DFAT assesses, nonetheless, that such cases are rare and a couple willing to relocate to avoid possible harm is typically able to do so.[13]

[13] DFAT Thematic Report, Indian State of Punjab, 7 December 2016, at 5.9.

110.   The Tribunal observed during the hearing that the applicants speak Punjabi, Hindi and English.  Punjabi is spoken in Himachal Pradesh and Delhi; while Hindi is spoken in Himachal Pradesh, Delhi and Uttar Pradesh.  The Tribunal observed that it may find the applicants could return to Himachal Pradesh, Delhi or Uttar Pradesh.  The applicants stated in response that they don’t think they can live there; the applicant husband’s mother and brother have given them information about how difficult a situation they are in.

111.   The Tribunal finds on the country information before it that internal relocation may be a viable option for people fleeing Punjab depending on their circumstances.  The applicant wife has a [Discipline 1] degree and speaks Punjabi, Hindi and English.  The applicant husband has work experience in [India], has worked in labouring positions while in Australia and speaks Punjabi and English.  The Tribunal has found, above, that the applicant husband’s maternal and paternal uncles would be unable to find them outside of Punjab.  The applicants did not claim to face other harm if they relocate to Delhi, Himachal Pradesh or Uttar Pradesh.  The Tribunal finds that it would be reasonable for the applicants to relocate to an area outside of Punjab such as Delhi, Himachal Pradesh or Uttar Pradesh where there would not be a real risk that they will suffer significant harm. 

112.   The Tribunal has found there is no real chance of harm to the applicants because of the applicant wife’s father’s political activities, because of their political opinion, their imputed political opinion or because of their inter-caste, inter-faith marriage.  Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has therefore not considered these claims for complementary protection purposes.

113.   The Tribunal is not satisfied that there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of their removal from Australia to India. 

114.   The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

115.   For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

DECISION

116.   The Tribunal affirms the decision not to grant the applicants protection visas.

Tamara Hamilton-Noy
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.

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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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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