1807655 (Refugee)

[2020] AATA 813

1807655 (Refugee) [2020] AATA 813 (18 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1807655

COUNTRY OF REFERENCE:                   India

MEMBER:Catherine Carney-Orsborn

DATE:18 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 March 2020 at 12:26pm

CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – scope of reconstituted review – delay in applying for protection – possibility of being joined in parents’ application for review – child of an inter-faith and inter-caste marriage – fear of family members – fear of Hindu fundamentalists – credibility concerns – inconsistent evidence from applicant’s parent – voluntary travel and stay in India – daughter of same marriage living unharmed in India – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 19A
Migration Act 1958 (Cth), ss 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
SZEPZ v MIMA (2006) 159 FCR 291

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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, was born to parents of Indian citizenship.  The applicant’s parents arrived in Australia [in] April 2009 as the holders of [student] visas. The applicant’s mother departed Australia [in] August 2009, and returned [in] May 2010. The applicant’s parents applied to the Department of Home Affairs (the Department) for protection visas on 23 December 2011. The delegate refused to grant the visas on 30 May 2012, and the Refugee Review Tribunal affirmed the decision on 4 December 2012. The applicant’s parent’s application for judicial review was denied by the Federal Magistrate’s Court [in] June 2014, and denied by the Federal Court [in] June 2013. An application for ministerial intervention was denied on 23 April 2014.

3. The applicant applied to the Department for the Protection visa on 10 June 2014. On 18 March 2015, the delegate refused to grant the visa on the basis that there were inconsistencies with evidence from the parents’ application for protection and the applicant’s parents failing to include the applicant in their request for ministerial intervention. The applicants applied to the Tribunal for review of that decision on 14 April 2015.

4. The Tribunal affirmed the decision under review on 29 September 2016. The basis for the Tribunal’s decision was due to inconsistencies in evidence, concerns about the credibility of the applicant’s mother, and the delay in lodging an application for protection for the applicant. The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

5. [In] December 2017, the Federal Circuit Court remitted the matter to the Tribunal. The basis for the remittal was that the Tribunal erred in finding that the applicant could have been joined to his parents’ applications when considering the delay in lodging a protection application for the applicant, and that this was therefore jurisdictional error.

6. The matter is now before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

7. The applicant had attended a hearing before the RRT on 17 August 2016. The Tribunal has a transcript of that hearing.

8. The applicant’s mother and guardian appeared before the presiding member of the Tribunal on 17 March 2020 to give evidence and present arguments on behalf of the applicant who is a minor. The Tribunal hearing was conducted at the request of the applicant by telephone conference and the hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The Tribunal explained the reasons for remittal and reconsideration and indicated that the previous evidence given to the RRT could be taken into account in the review. The Tribunal took further evidence from the applicant’s mother on behalf of the applicant.

10. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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, the applicant 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.

12. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

13. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

14. 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 a protection 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 the applicant 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’).

15. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.

16. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    What information can be considered on remittal?

18. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding. In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted. This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

19. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.

20. In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the RRT hearing.

21. The Tribunal has before it the Department file, the Department file relating to the mother’s application for protection (the mother’s file), the Tribunal’s previous file, and the current Tribunal file.

22. The mother’s file contains the application for protection forms, copies of the applicants’ passports, a written statement setting out the claims for protection, a copy of the delegate’s decision record, and documents relating to the Refugee Review Tribunal’s decision and the request for ministerial intervention.

23. The Department file contains the application for protection forms, copies of the applicant’s parents’ passports, a copy of the applicant’s birth certificate, refusal to consider ministerial intervention to lift the s 48 bar for the applicant’s parents, a copy of the applicant’s mother’s student visa application dated 17 March 2009, and a copy of the delegate’s decision record.

24. The previous Tribunal file contains a copy of the applicant’s birth certificate, a letter dated 18 August 2016 inviting the applicant to comment on adverse information, and a copy of the Tribunal’s decision.

25. The applicant claims that he fears harm from his grandparents and extended family, as his parents are in an inter-caste marriage and as such the applicant’s extended family consider him an untouchable and a sin.

26. The following information is provided by the applicant in his application for protection form.

27. The applicant was born on [date] in [City 1], New South Wales. The applicant is of Punjabi ethnicity and is a Sikh; although the applicant could not speak at the time, it is noted that a Punjabi interpreter would be required.

28. In form 866D of the application forms, the applicant sets out the following information regarding his family.

29. The applicant’s mother was born on [date] in [Village 1], India. The applicant’s mother is a Sikh of Punjabi ethnicity, who speaks, reads, and writes Hindi and Punjabi. The applicant’s mother completed school at [School 1 in] 2002, and then studied at [School 2 from] 2004 [until] [year]. The applicant’s mother holds a [Qualification 1] from [University 1] granted in 2008. The applicant’s mother’s occupation is [Occupation 1].

30. The applicant’s father was born on [date] in [Village 2], India. The applicant’s father is a Sikh of Punjabi ethnicity who speaks, reads, and writes both Punjabi and Hindi. The applicant’s father completed studies at [School 2 in] 2000.The occupation of the applicant’s father is [Occupation 2].

31. The applicant claims that his father is from a conservative Hindu family of the Arora caste, and converted to Sikhism after marrying the applicant’s mother. The applicant’s mother is from the Jatt caste. The applicant’s extended family on both sides consider the applicant an untouchable and a sin. The applicant fears that both families would target him and harm him if he returned to India. The applicant cannot relocate as the families have influence with the authorities, and the applicant cannot get state protection.

32. The applicant’s mother gave evidence on behalf of the applicant at hearing on 17 August 2016 and 17 March 2020.

33. At hearing on the 17 August 2020 the Tribunal explained that the matter had been sent back to be reconsidered.  The Tribunal explained that the basis for the remittal was that the Tribunal erred in finding that the applicant could have been joined to his parents’ application for review when the Tribunal was considering the delay in lodging a protection application for the applicant, and that this was therefore jurisdictional error as he could not have been joined to the review.

34. The Tribunal pointed out that the above arose because the Tribunal was concerned that there had been a delay in lodging a protection application.  The Tribunal asked the applicant’s mother if there was anything further she wanted to add.  She responded that as she had said previously they did not know whether they could add the applicant to their (the parents) application for protection. She said words to the effect that when they (the applicant’s parents) became aware they lodged an application for the applicant minor.

35. The Tribunal then discussed with the applicant’s mother the applicant’s claims for protection.

36. The Tribunal pointed out what it had before it and would consider all the previous evidence provided by the applicant.  The Tribunal asked if the applicant’s claims were still the same claims.  The applicant’s mother indicated that they were.

37. The Tribunal asked if there was any further evidence the applicant wanted to add.  The applicant’s mother indicated that there was not.

38. The Tribunal asked if the all the previous information provided by the applicant was still true and correct.  The applicant’s mother indicated that it was.

39. The Tribunal pointed out that there had been issues with the information and that the claims had changed during the Tribunal hearing from fearing the applicant’s family in India to fearing Hindu fundamentalists.  The applicant’s mother said words to the effect that there had previously been a misunderstanding and that the main danger was from Hindu fundamentalists.

40. The Tribunal again asked if there was anything further that the applicant’s mother wanted to put to the Tribunal on behalf of the applicant.

41. The applicant’s mother indicated there was not.

    Country of reference

42. The applicant was born in Australia and is the child of Indian nationals. Copies of the applicant’s parents Indian passports have been provided to the Department and Tribunal.  The Tribunal is satisfied that they are citizens of India.  Country Information indicates that as a child born to Indian nationals the applicant is an Indian national by descent.

43. Taking into account the available evidence the Tribunal is satisfied that the applicant is a citizen of India and India is a receiving country for the purpose of s.36(2)(aa) of the Act.

    COUNTRY INFORMATION

44. The DFAT Country Information Report – India, 17 October 2018, provides the following information on inter-faith and inter-caste marriages, and the caste system in India:

    India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal. India has no centralised system for marriage registration. Some states require marriages to be registered by law. Couples may seek to marry under one of India’s personal religious laws, which have been codified according to the requirements of different religions. The Special Marriage Act (1954) is an alternative to each of the various religious personal laws. The Act is available to all citizens who choose to marry outside their faith, and the religion of the parties to an intended marriage is immaterial under the Act.

    Arranged marriages continue to account for the overwhelming majority of marriages across India. Parents or other family members often assume sole responsibility for deciding whom their children marry, particularly in northern India. Many parents consider arranging a marriage for their children a right and a duty, and may not accept their son or daughter choosing their own spouse. Women face social pressure to marry by their mid-20s and men by their mid-30s. Around one in 1,000 marriages in India ends in divorce, compared with around one in three in Australia, although rates are increasing.

    Hindu nationalists have increasingly 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. Activists and politicians, have used traditional and social media to propagate this idea, to threaten and warn Muslims away from marriage to Hindu women and to incite Hindu men to violence against Muslim men. DFAT has found no evidence of Muslim men coercing Hindu women into marriage for the purposes of proselytisation.

    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. That said, sources observed that acceptance of marriages outside of castes or religion, or even of marriage partners not chosen by the family, depended heavily on individual family beliefs. Some families, particularly in urban areas, are more accepting, whereas others are extremely conservative and do not allow their children to choose spouses.

    DFAT assesses that treatment of people in inter-religious or inter-caste marriages varies according to the families involved. In some cases the families of intending marriage partners may perpetrate violence against them.

    Hindu tradition divided society into a hierarchy of hereditary groups, associated with particular occupations. Four principal groups exist within the system’s hierarchy: Brahmin priests and teachers, Kshatriya warriors and rulers, Vaishya farmers, traders and merchants and Shudra labourers. There are thousands of subgroups within the four main strata. Caste is predominately a Hindu concept, but has become a cultural phenomenon that exists within other religions and across India’s many social, linguistic and religious communities.

    A group known as ‘Dalits’ (sometimes referred to as ‘Untouchables’) fell outside the four principal groups. Dalits were historically associated with work seen as less desirable, including work involving cleaning or waste, and traditional taboos existed against members of the four castes touching them. Many Dalits continue to work in occupations that include scavenging, street cleaning and handling of human or animal waste, corpses or carcasses.

    Violence and discrimination against Dalits continues. Dalits have more limited educational and employment opportunities and face discrimination in health care and access to other essential services. The US State Department reported in 2017 that Dalit women were more likely than other women to suffer, or be threatened with, sexual assault.

    According to the Socio Economic and Caste Census of 2011, Dalits comprised 18.45 per cent of the total population. An estimated 36.75 per cent of households in Punjab are Dalit, with lower numbers in the north-eastern states.

    In recognition of entrenched disadvantage, the Constitution contains several provisions relating to ‘Scheduled Castes’ (mainly Dalits), ‘Scheduled Tribes’ (tribal and indigenous groups) and ‘Other Backward Classes’. Section 17 abolishes the practice of untouchability. Section 15 allows for positive discrimination for the ‘advancement’ of ‘socially and educationally backward classes’. Part XVI governs the reservation of positions for Scheduled Castes, Scheduled Tribes and others. This includes reserved seats in the Lok Sabha, seats in each state’s legislative assembly, government appointments and access to higher education. The government maintains a National Commission for Scheduled Castes.

    Some Dalits have achieved high office, helped in some cases by quotas for educational, public service and political representation. Dalit NGOs, community groups and chambers of commerce exist. India’s President, Ram Nath Kovind, is a Dalit from the ruling BJP party and is the second Dalit to hold that position. His main opponent for the position was Meira Kumar, a Dalit from the opposition Indian National Congress Party.

    DFAT assesses that Dalits and other people considered to be of a low caste continue to face a moderate level of official and societal discrimination, including social segregation, exclusion from temples and educational institutions, difficulties in finding employment, and sexual assault in the case of women and girls.[1]

    [1] DFAT, Country Information Report – India, 17 October 2018, pp. 18 – 19, paras [3.42] – [3.53].

1. A 2014 Q&A report by the Department provided the following information on marriage between Hindus and Sikhs (footnotes omitted):

   Limited recent information was located regarding attitudes to intermarriage between Sikhs and Hindus in Punjab specifically. The information contained within the 2013 India: Mixed Marriage Background Paper (see Additional Reading below) remains current and up to date. The Tribunals’ India Index also contains numerous Country Advice responses that comprehensively address the issue of mixed marriage within India, some recent examples of which are provided in the Additional Reading list below.

   In 2012, the Immigration and Refugee Board of Canada (IRBC) issued a report titled Situation of inter-religious couples from both urban and rural locations, including societal attitudes, treatment by government authorities and the treatment of their children (2005-April 2012), which – in part – examined intermarriage within Punjab, as well as India more broadly. To wit:

   Academic sources indicate that the situation of inter-religious couples in India varies depending upon class and region (Professor of sociology 19 Apr. 2012; Professor of history 10 Apr. 2012). There are differences depending on whether the couple is in a rural or urban area (WSO 24 Apr. 2012; Professor of history 10 Apr. 2012). The history professor noted that there is less discrimination towards inter-religious marriages that occur "within a middle-class urban context" (ibid.). She said that inter-religious couples from rural areas who experience problems with their families or villages often move to urban areas, where there is "more tolerance" and it is "easier to meld" (ibid.). Similarly, the WSO legal counsel explained that

   [t]here is a very stark difference between the treatment of inter-faith couples in rural areas and urban areas. Whereas in urban areas, it is not uncommon for inter-religious marriages to take place, they are much more controversial in rural areas. ...

   In urban areas it would be more difficult to identify inter-faith couples. Even where an inter-faith couple is identified, it is not likely they would face serious hardship. (24 Apr. 2012)

   …

   According to Human Rights Watch, khap panchayats, “unofficial village councils,” in the northern states of Haryana, Punjab and Uttar Pradesh, may issue edicts forbidding inter-religious marriages, among other types of mixed marriages (18 July 2010). Family members have, in turn, threatened couples, filed false cases of abduction against couples, or killed spouses, as a way of upholding the family’s “‘honour’” (Human Rights Watch 18 July 2010).

   Hard News, a New Delhi-based news magazine, states that honour crimes, including those against inter-religious couples, range from “quiet murders passed off as suicides, to pre-meditated, long-drawn public humiliation and social boycott” (22 Jan. 2012).

   According to a Globe and Mail article, in November 2011 in Uttar Pradesh, the father and two brothers of a 21-year-old woman were charged with shooting and killing her because she was in a relationship with a man of a different religion (7 Dec. 2011). The article also notes a case from Punjab in which a couple, a Sikh woman and a Hindu man, was attacked by the woman’s parents, as well as a case from Hyderabad in which the parents of a Hindu woman repeatedly tried to kill her and her Muslim husband (ibid.).

   An article from The Times of India published in 2011 reported that two Hindu sisters – both of whom had eloped to marry Sikh men – appeared in a district court seeking protection from their father and other relatives. The sisters reportedly stated that their “father and other relatives are constantly threatening to kill us for marrying against their wishes”. According to the article, the court “ordered the district police to provide them accommodation in the designated safe house”, at which security guards were reportedly stationed.[2]

   [2] Department of Home Affairs, Inida: IND43066 – Hindu-Sikh mixed marriage – State protection – Relocation, 7 February 2014, pp. 2 – 3, file://sydnetapp2.tribunal.gov.au/refer/Research/2014/Response/IND43066.cw.doc (accessed 25 September 2019).

   Does the applicant have a well-founded fear of persecution?

2. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.

3. The Tribunal has issued guidelines on the assessment of credibility in protection visa cases, which state, in part:

   The Tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims.[3]

   [3] Administrative Appeals Tribunal Migration and Refugee Division: Guidelines on the Assessment of Credibility, July 2015, p. 4, para [12].

4. Ultimately, after considering all the evidence, the Tribunal is not satisfied that key elements of the applicant’s claims are credible. The reasons why the Tribunal has reached this conclusion are set out in detail below.

5. The Tribunal will consider how the claims put forward by the applicant’s mother will impact on the applicant in relation to the applicant’s claim for protection. The applicant’s mother claims in the application for protection lodged with the Department on the 10 June 2014 that the applicant’s father is from a conservative Hindu family of the Arora caste and converted to Sikhism after marrying the applicant’s mother.  The applicant’s mother is from the Jatt caste.  The applicant claims that extended family on both sides consider the applicant an untouchable and a sin.  The applicant fears that both families would target him and harm him if he returned to India.  The applicant cannot relocate as the families have influence with the authorities and the applicant cannot get state protection.

6. At hearing before the Tribunal on 17 August 2016 the applicant’s mother stated that the real fear was from Hindu religious people not the applicant’s father’s Hindu relatives.  At hearing the applicant’s mother responded that this inconsistency was due to a misunderstanding by the person who typed the application.   

7. At the hearing on 17 August 2016 it was put to the applicant’s mother that the application for protection completed by her for the applicant did not list his sister in India as part of the family unit.  She responded that she did not fully understand such things.  She responded that she had referred to her daughter elsewhere.  The Tribunal accepts that she had provided a birth certificate in relation to the identity of the applicant which indicates that there was a [age] year old child of the parents of the applicant.

8. It was put to the applicant’s mother that information in relation to the applicant’s parents return visits to India was also not included in the application for protection.  She responded that she did not understand. 

9. It was put to the applicant’s mother that at interview with the delegate she had stated that the applicant was in fear of harm in India from his father’s family as they are from the Hindu community and no fear from the applicant’s mother’s family.  She responded that there was a mistake in the written statement but not when she had an interview with the delegate.

10. At hearing before the Tribunal it was put to the applicant’s mother that information on a previous application for protection lodged by her and her husband (the applicant’s father) indicates that he is of Sikh ethnicity as well as Sikh religion.  The applicant’s mother responded that this was not correct and he was originally Hindu and converted to the Sikh religion.

11. At hearing the applicant’s mother stated that the applicant’s father converted to Sikhism after their marriage however information given to the Department was that the appplicant’s father converted to Sikhism prior to the marriage.  Information before the Tribunal also indicated that the father’s parents were present at the marriage.  This is inconsistent to the applicant’s mother’s claims that his parents were against the marriage and did not attend the marriage.

12. It was put to the applicant’s mother that information on the Department file indicates that after the marriage she had returned to India and lived there for several months from August 2009 to March 2010 and given birth to a child.  She was asked to comment on the issue that if she was in fear for her safety she would not have returned to India.  She indicated she would not comment.

13. She claims that the applicant will be harmed if he returns to India as he is from an inter-caste marriage.  She further claims he is from an inter-religious marriage.

14. It was put to the applicant’s mother that the applicant’s sister, from the same relationship, has been living in India and there did not appear to be issues with her safety.  She responded that the applicant’s sister is safe as she is living with the applicant’s aunt and no one knows much about her.  She responded that the applicant could not live with the aunt as the applicant is being breast fed by the applicant’s mother.

15. The applicant was given a further opportunity to comment on adverse information in a letter dated 18 August 2016 which is set out below.

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – [THE APPLICANT]

    I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are

    1. Your mother, [Ms A], had previously lodged a claim with the Department for a subclass XA 866 (Protection) Visa including your father, [Mr B], on 23 December 2011.

    This information is relevant because in the Form 866B Application for a Protection (Class XA) completed on your behalf and signed by [Ms A] and [Mr B], when asked if any person named in the application had applied for refugee status or a Protection Visa from the Department, they responded ‘no’.

    [Ms A] and [Mr B] further responded ‘no’, to the question of whether they had made any other type of application to the Department. There was a failure to disclose the previous application and [Ms A] and [Mr B] further signed a declaration that the information supplied to the Department was correct and up to date in every detail. If the Tribunal relies on that information it may lead the Tribunal to conclude that [Ms A] and [Mr B] deliberately gave misleading and or false information as part of your application to the Department. This may also reflect on the credibility of the claims made on your behalf.

    2. There is also information before the Tribunal in relation to the migration history of your parents. That information is as follows;

    [In] April 2004 [Ms A] and your father, [Mr B] initially arrived in Australia as the holders of a [Student] Visa valid [until] May 2011. [In] August 2009, [Ms A] departed Australia and returned to India where she gave birth to your [sister], on [date]. [In] May 2010 [Ms A] returned to Australia.

    Although the Student Visa issued to [Ms A] was only valid [until] May 2011, it was not until 23 December 2011, that [Ms A] lodged an application with the Department for a Protection visa which included [Mr B].

    Further, on 30 May 2012 your parent’s application for a Protection visa was refused by the Department. They sought review of that decision by the Refugee Review Tribunal (the RRT). The RRT affirmed the decision of the delegate on 4 December 2012.

    Your mother made an application for a judicial review of that decision to the Federal Magistrates Court [in] December 2012. [In] June 2013 the Federal Circuit Court dismissed that application.

    [In] June 2013 your mother sought judicial review of the Federal Circuit Court’s decision to the Full Federal Court. [In] November 2013 the Full Federal Court dismissed the application.

    On 12 December 2013 your mother made a request for Ministerial Intervention pursuant to section 417 of the Migration Act, including your father as her dependent. On 23 April 2014 this request was finalised is “not considered”.

    This information is important for several reasons.

    Firstly, because the delay by your parents in lodging their application for a Protection visa for over 2 years and after your mother’s Student visa had expired may lead the Tribunal to conclude that they did not have any genuine fear of harm when they arrived in Australia.

    Secondly, the fact that your mother returned to India between August 2009 and May 2010 in circumstances where she claimed to fear harm due to an interfaith marriage may lead the Tribunal to conclude that the claim is not genuine.

    Thirdly, the fact that your parents have left your sister in India when she is also allegedly the child of an interfaith marriage and they have not made any claims of harm or to fear harm for her may lead the Tribunal to conclude that there is not a real chance that you would face serious harm or there is not a real risk that you would suffer significant harm if you were returned to India.

    Fourthly, the migration history of your parents may demonstrate to the Tribunal that they are experienced with the process of making a claim for Protection and the Australia Migration Law and that they ought reasonably to have been aware of the necessity to ensure that any claims made on your behalf were true and accurate.

    In the application for protection filed on your behalf it is stated that you are the child of an inter-caste marriage. That your mother belonged to the Jatt caste and your father belongs to Arora caste and that both of your parent’s families considered you to be an untouchable and a sin.

    This information is important as it is the first time that information has been provided that your parents were of a different caste and that these circumstances gave rise to a basis for harm. If the Tribunal relies on this information, the fact that [Ms A] and [Mr B] have not previously raised claims that they are of a different caste when they have had the opportunity to do to so to the Department, the RRT and to the Minister may lead the Tribunal to conclude that these claims made on your behalf are not credible.

    4. In her evidence at the Tribunal hearing on 15 August 2016, your mother [Ms A], told the Tribunal that she first met your father in 2007. There is information before the Tribunal which is inconsistent with the evidence of [Ms A] to the Tribunal. That information is that in the statement accompanying the Protection application filed by [Ms A] on 23 December 2011 she stated that she met your father in 2008. Further, when questioned by the RRT at a hearing on 15 November 2012, [Ms A] told the RRT that she met your father in April 2008.

    This information is important as [Ms A] has given inconsistent information on several different occasions about when your parents met and if the Tribunal relies on this information it may lead it to conclude that she is not a witness of credit and the claims made on your behalf are not credible.

    5. In her evidence at the Tribunal hearing on 15 August 2016, [Ms A], told the Tribunal that your father, [Mr B], converted to Sikhism a couple of days after their wedding [in] August 2008, and that the parents of your father, [Mr B], did not attend their wedding. There is information before the Tribunal which is inconsistent with her evidence to the Tribunal. In the statement accompanying the Protection visa application filed by [Ms A] on 23 December 2011 she stated that [Mr B] converted prior to their marriage and then asked [Ms A]’s parents for permission to marry. Further, when questioned by the RRT at a hearing on 15 November 2012, [Ms A] told the RRT that [Mr B] converted in early August 2008. Additionally, when questioned by the RRT at a hearing on 15 November 2012, [Mr B] told the RRT that his parents (your paternal grandparents) attended their wedding.

    This information is important as [Ms A] has given inconsistent information about your father’s conversion and their marriage on several different occasions and if the Tribunal relies on this information it may lead it to conclude that she is not a witness of credit and the claims made on your behalf are not credible.

    6. In her evidence, on your behalf, at the Tribunal hearing on 15 August 2016, [Ms A] was asked whether she had experienced any harm prior to leaving India in April 2009 due to her interfaith marriage. She advised the Tribunal that she was not living at her home address and was in hiding. There is information before the Tribunal which is inconsistent with that evidence. That information is found in the Protection visa application file by [Ms A] with the Department on 23 December 2011. In the Form 80 Personal Particulars for Character Assessment she disclosed that she had lived at her parents address at [Village 1] from 2000 up until her departure from India in April 2009.

    Further, in the decision of the delegate of 30 May 2012 rejecting your parent’s initial application for Protection, the delegate records that you mother provided information that the “Sikh priest had informed someone like Shiv Sena and those Hindu organisation about this and then that those people started following us and they were after us, saying that they would not leave us because ‘you are changing religion’ and they were saying that “we would not allow anyone in the future to change their religion.”

    This information is important because if the Tribunal relies upon it, it is contradictory and inconsistent with the information that [Ms A] provided at the Tribunal hearing, and it also suggests that Hindus opposed to your parent’s marriage would have been able to easily locate them and that the claims made on your behalf that your parents have an interfaith marriage and fear harm for this reason are not credible.

    7. In her evidence, on your behalf, at the Tribunal hearing on 15 August 2016, [Ms A] was asked about threats of harm that have been made to your parents prior to their departure from India in 2009. She told the Tribunal that leaders of the Hindu community had attended your maternal grandmother’s home and requested that your parents be presented to them because they had entered into an interfaith marriage. She further claimed that the Hindu community leaders had become aware of the interfaith marriage due to reports of other village people and this was the only threat that had been received prior to your parents’ departure from India in 2009. There is information before the Tribunal which is inconsistent with that evidence. That information is found in the statement contained in the Protection visa application filed by [Ms A] with the Department on 23 December 2011. In that statement she claims as follows;

    ‘the Sikh Guru who converted [Mr B] to the Sikh religion had told other followers about the conversion and the news reached to Hindu extremist groups very quickly. RSS members went to the Sikh temple and demanded the details of my husband including his family background and address. The Guru refused to give the details which prompted a riot in my area. The BJP members had ransacked the temples and threatened to kill all of us’ and ‘they also threatened to kill my parents many of my neighbours injured when they attacked the temple. Local police took control of the situation otherwise many people would have been killed on that day.’

    This information is important because if the Tribunal relies upon it, it is inconsistent and contradictory to the evidence that [Ms A] gave to the Tribunal at the hearing and may lead the Tribunal to conclude that [Ms A] is not a witness of credit and the claims that she has made on your behalf are not credible.

    8. In her evidence, on your behalf at the Tribunal hearing on 15 August 2016, [Ms A] told the Tribunal that when she returned to India to give birth to your sister between August 2009 and May 2010 she resided with her sister, your aunt, in the village of [Village 3] in Punjab. She further stated that your sister has continued to reside with your maternal aunt at [Village 3]. Additionally, [Ms A] told the Tribunal that this village was two to three hours drive from her home village of [Village 1]. There is information before the Tribunal which is inconsistent with that evidence. That information is found in the decision of the delegate of 30 May 2012 in relation to your parent’s initial Protection visa application. The delegate records that [Ms A] told her that at this time she stayed at a relative’s house 700 km from her village. Further, when questioned by the RRT at the hearing on 15 November 2012, [Mr B] provided information to the RRT member that your sister was residing with one of his friends in another village in Moga. [Ms A] also told the RRT at that time that the village of [Village 3] was located approximately 400 to 500 km away from her home village. The Tribunal has since checked on Google maps and has found that [Village 3] is approximately 65 km from your mother’s home village of [Village 1].

    This information is important as it is inconsistent with the evidence that [Ms A] provided to the Tribunal. If the Tribunal relies upon it, it may lead the Tribunal to conclude that [Ms A] was attempting to mislead the Tribunal and that she is not a witness of credit in the claims made on your behalf are not credible.

    9. In her evidence on your behalf at the Tribunal hearing of 15 August 2016, [Ms A] told the Tribunal that you did not have any fear of harm from either your maternal or paternal grandparents and that this claim made on your behalf was a misunderstanding of the migration agent she had previously instructed. This information is inconsistent and contradictory with the information that she gave the delegate when attending an interview on your behalf on 13 March 2015. At that interview she claimed that your father’s parents (your paternal grandparents) had been against her marriage to your father and that as they were part of the Hindu community to seek to harm you as a result.

    This information is important because it is inconsistent and contradictory to the claims made by your mother on your behalf at the Tribunal hearing on 15 August 2016, and also inconsistent and contradictory to the original claims made on your behalf in the Protection visa application. The Tribunal may rely upon this inconsistency to conclude that [Ms A] is not a witness of credit and the claims that she has made on your behalf are not credible.

    You are invited to give comments on or respond to the above information in writing.

1. The applicant did not respond to that letter.

2. At the hearing before the Tribunal on 17 March 2020 the Tribunal discussed the reason for remittal, in response the applicant’s mother stated words to the effect she had already dealt with that issue and did not know she could lodge an application for the applicant.  The Tribunal acknowledges that the applicant’s mother could not join the applicant to his parents’ application for protection as a decision had been made by the Department and it was the subject of a review.  However a decision was not made to lodge an application for protection in the applicants name until a year after his birth.

3. The Tribunal informed the applicant that it had the evidence and information before it previously supplied by her to the Tribunal and would consider that.  At the most recent hearing when she was given the opportunity to add anything further she stated she had nothing further to add.

4. The Tribunal has considered all the evidence and information before it.

5. The applicant’s mother gave evidence on behalf of the applicant who is her minor son.  The applicant’s mother’s evidence was inconsistent throughout the process.  The inconsistencies in some instances were not particularly relevant however overall went to the core of the claimed fear that the applicant faces.

6. The applicant claims that he is at risk of serious harm due to being the child of an interfaith and later an intercaste marriage.  The applicant’s mother at first had claimed that the serious harm feared was from family members.  When significant inconsistencies were put to her in relation to the grandparents’ involvement with the marriage and apparent support the applicant’s mother changed her evidence to state that the feared harm was from Hindu fundamentalists.

7. When asked to expand at hearing she could give no persuasive details other than they will kill the applicant and threats were made to her parents.  She could not detail who in the Hindu community would do this, she simply made a broad claim at hearing that the Hindu community would seek to kill the applicant due to religious differences.

8. When it was put to her that she had travelled back to India in 2009, after the claimed marriage which has caused this fanatical hatred, in order to give birth to the first child of the relationship and had stayed for some months and left the child with family members.  She could not give any convincing response other than her daughter was not known and she stayed some distance away from her village.  When it was put to her that where she stayed was close to her village at hearing she repeated it takes time to get there and did not respond to an opportunity given to her by the s424A letter set out above.

9. The Tribunal has carefully considered the applicant’s claim that he is at risk of serious harm due to his parents’ interfaith and intercaste marriage.  The Tribunal only has the applicant’s mother’s assertions before it.  Her evidence lacked credibility, was inconsistent and unpersuasive. 

10. After considering all the evidence before it including the fact that the applicant’s sister has safely lived in India since her birth and that the applicant’s mother could visit India and stay for several months, the Tribunal is not satisfied that that there is a real change that the applicant will suffer serious harm if he returns to India from the applicant’s family members, fanatical Hindus or the general Hindu community.

11. Considered overall the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm for any reason set out in s.5J(1)(a) if he goes to India. It is not satisfied there is a real chance he will suffer serious harm for any of the reasons claimed or for any other reason if he goes to India. Accordingly, it is not satisfied he has a well-founded fear of persecution. The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Does the applicant meet the complementary protection criteria?

12. The Tribunal must also consider whether the applicant meets the criteria for complementary protection.

13. The applicant meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

14. Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

15. Section 36(2)(aa) of the Act 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.

16. For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). The Tribunal accepts that the applicant has resided in Australia all his short life and his family have been here for several years. The applicant’s mother has submitted that the applicant’s future will be difficult if the family goes to India. The Tribunal is not persuaded that this is the case. It accepts that the family may endure some challenges in resettling in India. It is not satisfied however that any difficulties the applicant suffers in going to India will amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment or torture. The Tribunal is satisfied that the applicant’s parents have cared for him in Australia and will continue to care for him if they return to India.

17. Accordingly the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he will suffer significant harm.

18. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    CONCLUSION

19. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

20. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Catherine Carney-Orsborn
    Member