1718780 (Refugee)

[2021] AATA 5634

1718780 (Refugee) [2021] AATA 5634 (6 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sophie Manera (MARN: 1460731)

CASE NUMBER:  1718780

COUNTRY OF REFERENCE:                   India

MEMBER:Damian Creedon

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 December 2021 at 10:45 am (WA time)

DATE OF WRITTEN RECORD:                1 December 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first-named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the second-named and third-named applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.

Statement made on 01 December 2022 at 8:50am

CATCHWORDS

REFUGEE – Protection Visa – India – membership of a particular social group – inter-caste marriage between Dalit man and Rajput woman – fear persecution from the second-named applicant’s family, relatives and caste members – membership of the same family unit as the first-named applicant – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 31 July 2017 to refuse to grant the applicants protection visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 6 December 2021 the Tribunal made an oral. The following is the written record of the reasons for that decision.

   STATEMENT OF DECISION AND REASONS

   Background

3. The first-named applicant (applicant), a [age]-year-old citizen of India, most recently arrived onshore on [date] March 2012.  The applicant applied for a protection visa [in] July 2015 and is presently onshore holding a bridging visa.

   Protection visa application

4. The applicant and the second-named applicant fear persecution in the form of serious harm and discriminatory conduct towards them for their inter-caste marriage. They believe that they will suffer serious harm and threats to their life and liberty arising from their membership of a particular social group, namely “inter-caste marriage between Dalit man and Rajput woman”. They fear persecution from the second-named applicant’s family, relatives and caste members.

5. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

6. The applicant applied for a review of the delegate’s decision.

   Application for review

7. The applicants were represented in relation to the review by a registered migration agent.

   Evidence

8. The Tribunal has before it a range of material, including, relevantly:

   a.A copy of the applicants’ Indian passports;

   b.The applicant’s protection visa application forms;

   c.The delegate’s protection visa decision record dated 31 July 2017 (delegate’s decision record);

   d.The review application form lodged with the Tribunal [in] August 2017 which included a copy of the delegate’s decision record;

   e.A statutory declaration made by the applicant on 10 September 2018 and the attachments thereto;

   f.A statutory declaration made by the second-named applicant on 10 September 2018 and the attachments thereto.

   g.A signed statement made by the applicant on 30 November 2021 and the attachments thereto.

9. The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report India, 10 December 2020 (DFAT Report).

   Hearing

10. The applicant appeared before the Tribunal on 6 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  Where relevant the applicant’s evidence to the Tribunal will be referred to below.

    Review application

    Pre-hearing submissions

11. The applicant’s evidence to the Tribunal is set out in his Statutory Declaration made on 10 September 2018.  The document is lengthy and detailed, running to 110 paragraphs in small font across 10 pages. 

12. The second-named applicant’s evidence to the Tribunal is set out in her Statutory Declaration, also made on 10 September 2018. 

13. The essence of the applicants’ evidence to the Tribunal is summarised in the following paragraphs.

14. The applicant is from the “Ad Dharmi” Caste also known as the Dalit caste and the second-named applicant is from the “Sonar” upper caste also known as “Rajput”. Paragraphs [2]-[5] and [7]-[8] of the applicant’s Statutory Declaration sets out his evidence as to his caste identity and treatment from the Indian community:

    2. …I belong to the Ad Dharmi Caste which is also known as Dalit caste.

    3. If I have any dealings with any Indian official for example the police I am always asked what caste I belong to.

    4. The Dalit caste is known as the untouchables.

    5. Being from the Dalit caste it is expected that our role in life is to serve people from the upper castes in India.

    …

    7. Throughout my school life I was always bullied and picked on for being of the Dalit caste by students and teachers belonging to an upper caste. For example, when I was in [a] grade at [a high school], my [teacher], who belonged to the highest caste known as the Brahmins, would beat me and humiliate me in front of all the students for not attending special tuition class. My family could not afford me attending these classes.

    8. My caste is identified by the use of the word “[Name 1]” in my full name, [deleted]. Although the word “[Name 1]” does not appear on my Birth Certificate or Indian Passport it is required of me to provide my full name to Indian authorities when asked to do so. I believe the same is required when dealing the authorities in Nepal.

15. Paragraphs [2(d)], [3]-[6] and [8] of the second-named applicant’s Statutory Declaration sets out her evidence as to her caste identity and high status in the Indian community:

    2(d) I belong to the Sonar upper caste also known as Rajput.

    …

    3. My father currently owns a [business] called [name deleted].

    4. My father also owned [a]businesses [and] also owned a [shop]. He is shareholder in a few other [companies]. My brother [Mr A] also has market share in [companies].

    5. I was not involved in the running of the family business and was unaware of the daily dealings that my father and brother had in relation to the business. All I know is that my brother [Mr B] was involved in one of the shops which sold [products] because I use to visit him at the shops sometimes. The [two other businesses] were conducted by my father and my other brother [Mr A].

    6. My relatives are in [a] business. They manufacture and supply products to different countries like Bangladesh and Nepal.

    …

    8. My brother-in-law [also] operates a wholesale business supplying [parts] to India, Nepal and Bangladesh.

16. The applicant and second-named applicant knew that each belonged to a different caste and that they knew their relationship was “forbidden” according to Indian custom: see paragraphs [15], [17] and [20] of the applicant’s Statutory Declaration and paragraph [15] of the second-named applicant’s Statutory Declaration.

    15. After about 6 to 7 months later in 2005 I revealed my caste to [Ms C] only after she queried about a book I was reading at the College about spiritualism and Islam. [Ms C] asked me why I was reading such a book if I was a Mann, because a majority of Mann’s are Sikh. I told her that I was reading the book for personal interest. I then told her the truth about my caste and stated to her that people are people and that the caste system in India should be abolished. She agreed with me. We both have an interest in spiritualism. It was at that stage that I became very fond of [Ms C] and wanted to know more about her.

    …

    17 Before [Ms C] left the College at the end of 2005 [Ms C] and I exchanged phone numbers so that we could get to know each other more. My colleagues and students at the College were not aware of our relationship as we did not show any affection to one another. We knew that our relationship was forbidden.

    …

    20 [Ms C] and my feelings for each other became stronger but were kept secret because of the caste and age difference. In about early March 2006 [Ms C] told me that her parents were arranging for her to marry her [cousin], his name was [deleted]. [Ms C] did not want to marry this person and asked me to marry her.

    …

    15. Before I left the College at the end of 2005 [Mr D] and I exchanged phone numbers so that we could get to know each other more. My friends were not aware of my relationship with [Mr D] as I did not tell them. We did not want anyone to know. We did not show any affection to one another. We knew that our relationship was forbidden due to me belonging to an upper caste to that of [Mr D].

17. The applicant was subjected to verbal and physical abuse from the second-named applicant’s family on a number of occasions due to his relationship with the second-named applicant: see paragraphs [21], [28], [44], [57] and [59] of the applicant’s Statutory Declaration.

    21. In about late March 2006, I went to the [business] which [Ms C]’s father owns to ask for [Ms C]’s hand in marriage. I went without arranging an appointment as I knew that if I were to speak about their daughter then he would not talk to me. [Ms C]’s father, two brothers and [Ms C]’s uncle were at the business. The uncle’s name is [name]. [Ms C]’s father, [Mr E] approached me. He recognised me. I told him that I wanted to talk about marriage to [Ms C]. [Ms C]’s father and uncle threatened to kill me as they did not want to hear what I had to say. They told me that they would rip off my skin and that if I did not understand what they were saying that they would make me understand by physical harm they would do to me. I left in fear of my life.

    …

    28. On 13 April 2006 whilst I was walking in the street in Jalandhar. I was forcibly pulled into a truck by 2 men. I was taken to the hills of Himachal, near the [town]. Along the way to the hills, I heard two men speak to each other. The names of the two men were [names deleted]. Upon arrival at the hills, I was beaten and abused by them. I think I was hit by four men in total because each had a different voice. I kept asking them why they were beating me and who had sent them. They did not answer me. One said to me that, “this is what happens when filth touches gold”. I realised that they either were affiliated with [Ms C]’s caste or that they were hired by [Ms C]’s family because of my relationship with [Ms C].

    …

    44. [Ms C] and I remained at the police station until [Ms C]’s father [Mr E] and older brother [Mr A] arrived. They verbally abused me and took [Ms C] home. Later I was released from the interrogation cell.

    …

    57. The next morning while [Ms C] and I were waiting for my friend [name], who was a former class friend of mine [to] give me some money, [Ms C]’s father [Mr E] and older brother [Mr F] appeared at the door of our room. I assumed that the Manager of the Sikh temple contacted [a business] and found out that the business actually belonged to [Ms C]’s father. [Ms C] and I were verbally abused by [Ms C]’s father and brother. [Ms C] was taken back home. My friend [who] was waiting for me outside the temple did not know what had happened. It was only after I came outside to see him where I explained that [Ms C] had been taken home by her father and brother. He told me to forget about [Ms C] and gave me money so that I could travel back to Jalandhar.

    …

    59. I then arranged to go to [Ms C]’s house to give [Ms C] a new mobile phone. When I arrived, [Ms C]’s younger brother, [Mr B] was home. He swore at me and told me to leave. I ran home in fear of my life. Upon arriving home I contacted [name] (a former friend of [mine]). I asked her if she could go to [Ms C]’s house and act as her friend to give her the mobile phone. She agreed. [Ms C] and I could once again talk to each other.

18. The second-named applicant was also subjected to physical and verbal abuse by her own family due to her relationship with the applicant: see paragraphs [23], [31]-[32], [49]-[50] and [92]-[94] of the second-named applicant’s Statutory Declaration.

    23. After my father, uncle and brothers came from work that same day they were very angry with me. They said to me that “those who can’t dare to make eye contact were seeking your hand”. My father told me that I had “soiled the dignity of my family and disrespected centuries old tradition.” As a result of this my father did not allow me to eat, he did not provide me with money and prohibited me from leaving the house unaccompanied.

    …

    31. After arriving home my father, uncles and brothers began physically abusing me. They started hitting me and pulled my hair. Whilst hitting him, my father constantly stated to me that he will kill me for the shame I have brought to the family. My mother told my father, brothers and uncle that if something happened to me that she will notify the police. I was beaten for some time and thrown into my room.

    32. I did not contact [Mr D] for a few weeks as I was too afraid. My father and my relatives said they will kill [Mr D]. My uncle had a plan to crush [Mr D] under the truck at night if we did not mend our ways.

    ...

    49. After I had given my father’s phone number to the police officer, he contacted my father and stated to him that I was at the police station and that [Mr D] was also with me. I remained at the police station until my father and my brother [Mr F] arrived. They verbally abused me and took me home. My father and brother did not talk to me throughout the ride home.

    50. When I arrived at home my father and brother started to beat me and after sometime they throw me in my room. My mother was the only person who took care of me and comforted me.

    …

    92. [A named person] looked very angry. I believe that he overheard my conversation with my friend in relation to my marriage and my pregnancy. He then dragged me to his car and had contacted someone over the phone to purchase some sort of medicine.

    93. He told me that he didn’t want to see me in India and kept verbally abusing me by swearing at me for dishonouring the family. After a few minutes [he] stopped the car on the road side where a man approached the car and gave him medicine.

    94. I was forced to consume all the pills which I did not know what they were for. I was then pushed out of the car in the middle of the road in Jalandhar. I was in shock and called [Mr D] and told him what had happened to me. He immediately came to pick me up.

19. The applicant and the second-named applicant were married according to Sikh custom in or around November 2007: see paragraphs [48] and [49] of the applicant’s Statutory Declaration.

    48. It about November 2007, [Ms C] and I planned to try and marry at a religious temple.  [Ms C]’s family had gone out to attend a family wedding.  [Ms C] and their housemaid were the only person’s home.

    49. After I had picked up [Ms C], we both attended a temple close to her house.  Once we arrive3d we realised that the temple was closed.  We then went to another temple.  We had asked the Sikh elder of our intention to marry.  He agreed to do so only if I paid him money.  I do not remember the exact amount of money I gave him but by the end of the ritual [Ms C] and I were married and became husband and wife.  We did not tell anyone as we did not want anyone to prevent our marriage.  The temple we went to was not a government registered temple and therefore we were not given any document proving our marriage.  After the ceremony, [Ms C] went back home the same day.  We had decided that one I got a stable job that we would live together and that I could support her.  [Ms C]’s parents did not know we were married.

20. The applicant and the second-named applicant were “legally” married [in] January 2012: see paragraphs [66] and [70] of the applicant’s Statutory Declaration

    66. On [date] January I returned to India.  Our intention was to legally marry.  At that time [Ms C] was living with her family.

    …

    70. [in] January 2012 I legally married [Ms C] in India.  Attached as Annexure TS2 is a copy of our marriage certificate.

    Documentary evidence

21. The applicant provided a number of documents in support of his application of which two are particularly relevant:

    a.A document entitled “Scheduled Casts [sic]/Scheduled Tribe Certificate, Office of the Sub Divisional Magistrate. [a town]”.  The document is dated 23 May 1985 and is under the hand of the Sub Divisional Magistrate, [a town].  The document certifies that the applicant “belongs to the A Ddarmi [sic] caste”.

    b.A certificate of marriage between the applicant and the second-named application.  The date of marriage is entered as [date] January 2012 and the ceremony was performed in Jalandhar, India.

    Country Information

    Inter-caste marriages in India

22. Inter-caste marriages are protected under Indian law, being recognised under the Arya Marriage Validation Act 1937.  Additionally, a 2006 report from the Immigration and Refugee Board of Canada (IRB) stated that the Indian government offered financial incentives to promote inter-caste marriage.  The Indian government claims to support inter-caste marriage and provides grants to newly-wed inter-caste couples where at least one person is a member of a scheduled caste. However, a report in The Tribune in June 2012 states that no such payments have been made in Punjab in the preceding four years due to the state’s “precarious fiscal condition”. The report also states that at the time of writing, there were 552 eligible couples in the state awaiting payment.

23. A 2003 article stated that, at the time, the High Court in Delhi heard between 15 and 20 new cases alleging rape or abduction per month, where the women involved claimed to have actually married by choice. A reading of the article supports the assessment that these figures are largely related to inter-caste unions where families disapproved (thus filing charges), and stated that most cases were decided in favour of the women. The public prosecutor, however, admitted that a woman’s safety could not be guaranteed outside the court: “[m]ost couples invariably have to return to live surrounded by a hostile community and police force that instead of protecting them will continue to harass them”.

24. A 2011 article from the Indo-Asian News Service stated that police in Punjab state had been unable to find a solution to an apparent ‘surge’ in the number of honour killings. The Punjab and Haryana High Court ordered both states to “provide shelter homes to runaway couples who marry against the wishes of their families, caste or community and asked police to provide them with security”.  According to BBC News, over 200 couples were reportedly provided with shelter by Haryana police during 2011.

25. Inter-caste couples attending a January 2013 conference in Tamil Nadu, organised by the All India Democratic Women’s Association in Madurai, reported that law enforcement officers could turn hostile due to their own caste sentiments.   Illustrating this point, in early 2010 a Haryana court sentenced five people to death for killing a same-gotra couple who had married against the wishes of the bride’s family. A police investigation apparently found that officers assigned to protect the couple had passed information on to the assailants. 

1. In response to the sentencing in the above case, Haryana khap panchayats launched protests, demanding that the government amend Hindu marriage law to ban same-gotra marriage. TIME reported that, “[a]stonishingly, prominent politicians from both the ruling Congress party and the opposition have come out in support of the khaps’ demand. With city and village elections due shortly, political parties see this as an easy ploy to lure votes, caste being a handy instrument of statecraft”.  In June 2010, the Delhi High Court dismissed a petition calling for a ban on same-gotra marriages, with the judges asking the petitioner to demonstrate which Hindu text banned such unions. 

2. In terms of protection provided by non-state actors, a Delhi-based volunteer group known as the ‘Love Commandos’ assists inter-caste couples who fear retribution from family members or khap panchayats. The Love Commandos provide a helpline, and rescue missions/emergency accommodation for those who believe their lives to be endangered. Established in July 2010 in response to a spate of honour killings in northern India, the Love Commandos claimed to have 2,000 volunteers nationally as at October 2010.  According to a BBC News article, the Love Commandos claim to have provided approximately 200 couples with shelter during 2011.

3. On 19 August 2019, The Washington Post online, in an article entitled “A young Indian couple married for love. Then the bride’s father hired assassins”, reports:[1]

   [1] Joanna Slater, ‘A young Indian couple married for love. Then the bride’s father hired assassins’, The Washington Post (online, 19 August 2019)  

   One bright afternoon less than a month later, the couple left a doctor’s appointment in the small southern Indian city where they grew up. A man came up behind them carrying a large butcher knife in his right hand. He hacked Pranay twice on the head and neck, killing him instantly.

   Pranay, 23, was a Dalit, a term used to describe those formerly known as “untouchables.” Amrutha, 21, belongs to an upper caste. Her rich and powerful family viewed the couple’s union as an unacceptable humiliation…

   While Indian society is changing, it is not shifting rapidly enough for couples like Amrutha and Pranay, whose marriage defied an age-old system of discrimination and hierarchy. Even as India has lifted millions out of poverty, increased education rates and built one of the world’s fastest-growing economies, the influence of caste — a social order rooted in Hindu scriptures and based on an identity determined at birth — remains pervasive.

   That system is at its most resilient in marriage. A 2017 study found that just 5.8 percent of Indian marriages are between people of different castes, a rate that has changed little in four decades. The results surprised the researchers, who had expected to see “more intermingling of the different castes,” said Tridip Ray, a statistician and the lead author. “Unfortunately, that’s not happening.”

   In India, transgressing such boundaries sometimes provokes violence. Since late June, killings of men and women who married outside their caste have been reported in the states of Gujarat, Tamil Nadu, Madhya Pradesh and Andhra Pradesh…

   Such violent reprisals are “passed off in the name of tradition and honor,” said Uma Chakravarti, a renowned historian and expert on caste and gender. But the motives go far deeper, she said. If a woman can choose whom she wants to marry — including a Dalit man — it “destabilizes the entire system” that perpetuates inequality.

   …

   Dalits, who make up almost 17 percent of India’s population of more than 1.3 billion, are at the bottom of India’s caste hierarchy….

   But as Pranay and Amrutha’s story shows, a modicum of upward mobility does not mean they can marry whom they want or live where they want. They continue to do India’s most stigmatized and dangerous work. They face discrimination in the job market and huge hurdles in owning land. India has “given one person one vote,” said Paul Divakar, general secretary of the National Campaign on Dalit Human Rights. But it has not “given each human being the same value.”

   …

   When it came time to deliver the couple’s baby, the family decided that for safety reasons it was better to go to a hospital in Hyderabad, a major city three hours away. But when the family sought a temporary apartment there, Balaswamy said, several landlords declined to rent to them after learning they were Dalits. Caste discrimination is something “we are facing regularly,” he said.

4. The DFAT Report notes that:

   Marriage (inter-faith, inter-caste)

   3.134 India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal. However, many Indian families still prefer marriages arranged within their own religion and caste. According to researchers, around 10 per cent of all marriages in India take place between different castes while around 2.1 per cent of marriages are inter-faith.

   3.135 The Special Marriage Act 1954 (SMA) is the secular marriage law in India, which enables inter-faith and inter-caste marriages, and is an alternative to each of the personal laws. The SMA is available to all citizens who choose to marry outside their faith, and the religion of the parties to an intended marriage is immaterial under the Act. However, few people use the SMA, favouring traditional personal laws that provide solemnisation of marriage under religious rites. As an example, in 2019, according to official data, of the 19,250 marriages registered in Delhi, 3 per cent were inter-faith marriages (and registered under the SMA).

   3.136 The Hindu Marriage Act allows members of the Hindu, Buddhist, Jain or Sikh religions to intermarry without declaring detachment from their religion. Under Muslim personal status laws, only Muslim men are permitted to marry kitabia (members of the Christian or Jewish religions); Muslim women are prohibited from marrying non-Muslims. If a partner is a Christian, it may be possible to marry under Christian rites through the Indian Christian Marriage Act, 1872.

   3.137 Despite their legality, in practice, there is a continued and growing intolerance in Indian society to inter-caste and inter-faith marriages. Many families cut off social relations with sons or daughters who undertake such unions, while other families commit or instigate acts of violence against the person who undergoes the marriage. Communal tensions and violence can also result. In August 2019, in Haryana, when a shopkeeper’s daughter reportedly left her family to marry a tailor of a different religious community, people blocked a highway and forced shopkeepers to keep shutters down, demanding the bride be ‘returned’ to her parents. The couple sought protection from the state High Court. In May 2019, a newlywed couple was reportedly set on fire in a village in Maharashtra because the woman’s family was opposed to their inter-caste love marriage.

   3.138 In some parts of the country, informal social systems like the male-only Khap Panchayats (or Khaps) pass decisions and judgements on marriage, based on traditions. (DFAT understands Khap Panchayats are mainly found in Haryana and parts of Rajasthan, Uttar Pradesh, Punjab and Madhya Pradesh.) Such punishments in marriage cases include fines, social ostracism, public humiliation and expulsion from the village. Despite the Supreme Court ruling against the practice, intrusions by Khaps to stop a legal marriage between consenting adults continue. Analysts have claimed there is a lack of political will to act against Khap Panchayats given their influence over large numbers of voters.

   3.139 One reason for social disapproval of mixed marriages in India is that inter-faith marriage generally takes place after one of the parties converts to the other’s religion, despite this being unnecessary under the SMA. While the constitution guarantees freedom of conscience and free profession to all (Articles 25-28), for some sections of the majority community, conversion has been and remains a sensitive issue.

   3.140 Hindu nationalists have used the term ‘love jihad’ to allege Muslim extremist groups are leading an organised campaign to coerce Hindu women to marry Muslim men and convert to Islam. DFAT has found no evidence of Muslim men coercing Hindu women into marriage for the purposes of proselytisation.

   3.141 Other intermixed unions perceived to be less socially accepted are those between rich and poor, and Dalit and non-Dalit Hindus.

   3.142 Practical matters such as renting property, obtaining a passport or boarding flights can be difficult for such mixed unions. Some report the need to remain vigilant against being found, as their extended family is ‘still on the lookout for them’. To support such couples there are limited initiatives such as Love Commandoes, Pratibimb Mishra Vivah Mandal, Dhanak of Humanity, Adhalinal Kaadhal Seiveer and Chayan which provide a mix of legal advice, counsel and shelter. In 2019, Dhanak of Humanity self-reported it had handled 2,000 cases since 2005. An analysis of roughly half their cases showed 58 per cent were inter-caste and 42 per cent were inter-faith couples.

   3.143 Couples from rural areas who marry inter-caste or inter-faith may attempt to move to the anonymity of urban areas. However, factors that can affect couples moving to a larger city include their financial capacity, the degree to which their families have the power to find them, their educational background and employability, availability of a personal support network, and whether they appear ’visibly different’.

5. Notably, at para [3.144] of the Report, DFAT assesses that:

   …the treatment of people in inter-faith and inter-caste marriages varies according to the families involved. It can range from approval in some families, to disapproval, ostracism, harassment, or violence (sometimes lethal). DFAT assesses that, in most cases, couples in mixed unions will experience some form of societal and official discrimination. DFAT assesses the risk of violence that can result in death of one or both of the parties to the mixed marriage is higher in communities in which Khap Panchayats operate.

   CONSIDERATION OF Claims and evidence

   Criteria of a protection visa

6. 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 he 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.

7. 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.

8. 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).

9. 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.

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or he may nevertheless meet the criteria for the grant of the visa if he or he 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 he 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

11. 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.

    Assessment of Claims and evidence, and findings:

12. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 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 himself or 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 or his. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

13. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

14. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’.  (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

15. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

16. At the hearing the applicants reiterated the substance of their Statutory Declarations.  In giving their oral evidence, the applicants appeared to do so honestly and truthfully.  When pressed on discreet issues, the applicants were able to provide detailed particulars of the facts set out therein to the satisfaction of the Tribunal. 

17. The Tribunal considered the applicants’ evidence to be coherent and plausible, and to not run counter to generally known facts.  Overall, the Tribunal is persuaded as to the general truth of the matters they attest to.  In particular the Tribunal finds that:

    a.The applicant belongs to the “Ad Dharmi” caste, also known as the Dalit caste, or “untouchables”.

    b.The second-named applicant belongs to the “Sonar” upper caste also known as “Rajput”.

    c.In or around 2005 the applicant and the second-named applicant began a romantic relationship which they knew was “forbidden” according to Indian custom.

    d.In or around March 2006 the second-named applicant defied her family’s expectations as to an arranged marriage, preferring instead to marry the applicant.

    e.When the applicant raised the prospect of marriage with the second-named applicant’s family they threatened to kill him.

    f.The applicant was subjected to verbal and physical abuse from the second-named applicant’s family on a number of occasions due to his relationship with the second-named applicant.

    g.The second-named applicant was also subjected to physical and verbal abuse by her own family due to her relationship with the applicant.

    h.The applicant and the second-named applicant were “unofficially” married, according to Sikh custom, in or around November 2007.

    i.The applicant and the second-named applicant were “legally” married, according to Indian law, [in] January 2012.

18. The Tribunal therefore accepts that the first-named and second-named applicants are in an inter-caste marriage and that the third-named applicant is the child of that relationship.

19. The applicants claim that if they return to India, they face persecution from the second-named applicant’s family and community because she entered into an inter-caste marriage with the applicant and together they had a child, being the third-named applicant. 

20. The Tribunal had some concerns in that the applicants did not make Protection visa applications until after their applications for a skilled 457 visa was refused. 

21. Their explanation for making the Protection visa application late was that they had paid an agent to conduct their visa affairs and they had been assured, falsely, that they were on a migration pathway to permanent residency in Australia.  The applicant provided evidence of having made a formal complaint as to the conduct of his then agent.  The Tribunal found this explanation persuasive.

22. Having had regard to the country information set out above, the Tribunal accepts that it is neither a remote nor far-fetched possibility that due to their marriage, the applicants would face serious harm as the hands of the first-named applicant’s family or community. Based on the country information, the Tribunal finds that the applicants face a real chance of serious harm and therefore persecution within the meaning of s 91R (2) of the Act. 

23. The essential and significant reason for the first-named and the second-named applicants being subjected to this treatment is due to their membership of a particular social group, being persons in an inter-caste marriage.

24. The Tribunal finds that the applicants do have a well-founded fear of persecution for a Convention reason. As per the country information, the Tribunal is not satisfied that the parties could seek effective state protection.

25. The Tribunal has considered whether the applicants could relocate to avoid the risk of harm but as the harm they fear is based on the inaction or joint action of the Indian authorities, vis-à-vis the applicant’s family and community, the Tribunal considers that they would be at risk throughout India. The Tribunal finds that the first-named applicant is a refugee within the meaning of the Convention and is owed protection obligations.

1. The Tribunal has considered the prospect of the applicants going to Nepal to seek effective protection. The Tribunal notes that India and Nepal have a treaty that permits Indians and Nepalese to travel and reside, to an extent, in each country. Section 36(3) of the Act does not refer to, or presuppose, a legally enforceable right under domestic law. It is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn. Therefore, while a legally enforceable right to enter and reside in a country which is specified in the domestic law of a country will come within s.36(3), the scope of that provision is not limited to such circumstances; the relevant right could be found in the terms of a treaty or convention as implemented by particular arrangements.  It will be for the decision-maker to evaluate the information before him or her in determining whether a liberty, permission or privilege of the relevant kind exists.

2. This distinction was highlighted by the Full Federal Court in MIMAC v SZRHU [2013] FCAFC 91. In that case, the Court held that the Tribunal had erred in finding a Nepalese citizen had a right to enter and reside in India on the basis of advice concerning the meaning and operation of the Treaty of Peace and Friendship between India and Nepal 1950. The Court observed that the terms of the Treaty itself, while reflecting a mutual right of residence, did not appear to give rights of entry. The Court indicated that the Tribunal should pay regard to the actual terms of the Treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test of a liberty, permission or privilege lawfully given, to enter and reside in the country.

3. The Departmental PAM3 Refugee Law Guidelines state that a right which only exists as a matter of practical reality and fact (e.g. where porous borders allow freedom of movement), or a discretionary right (e.g. where a country has no positive law or binding or guiding criteria dealing with the ability of certain persons to enter and reside, but in practice an official will sometimes allow entry at their discretion) would not appear to meet the standard of a right for the purposes of s.36(3) established in MIMAC v SZRHU.

4. The Tribunal has considered this in the circumstances of the applicant. The applicants have provided country information relating to inter-caste couples in Nepal and considers that they may face serious harm in Nepal.  The Tribunal considers that the applicants would likely be permitted to enter Nepal given these restrictions but would be unlikely to receive effective protection as per s36(3).

5. For the reasons given above the Tribunal is satisfied that the first-named applicant is a person in respect of whom Australia has protection obligations. Therefore, the first-named applicant satisfies the criterion set out in s.36(2)(a).

6. The Tribunal is satisfied that the first-named applicant’s husband and daughter are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their applications depends on the outcome of the first-named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

   decision

7. The Tribunal remits the matter for reconsideration with the following directions:

   (i)that the first-named applicant satisfies s.36(2)(a) of the Migration Act; and

   (ii)that the second-named and third-named applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.

   Damian Creedon
   Member