1820059 (Refugee)

1820059 (Refugee) [2023] AATA 4360 (26 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1820059
COUNTRY OF REFERENCE:                   India
MEMBER:Frank Russo
DATE:26 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 September 2023 at 3:52pm
CATCHWORDS
REFUGEE – protection visa – India – interfaith marriage – applicant – Sikh – girlfriend – Hindu – threats and attack from girlfriend’s family – fears death – credibility issues – applicant now married to Australian citizen – applied for partner visa – inconsistencies in evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 26 April 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 25 July 2023, the Tribunal sought information from the applicant regarding the scheduling of a hearing. On 31 July 2023 the applicant provided the Tribunal with a completed Hearing information form, in which he indicated that he has health issues which may affect his ability to attend an in-person hearing, more specifically that he has lower back pain and that he can barely walk. The applicant also indicated that he would have no difficulty in attending a hearing by video or telephone as he has the technical equipment required to participate in such a hearing. The applicant also provided the Tribunal with a medical certificate from [a] Medical Centre, dated 31 July 2023, which indicates that according to history provided by the applicant and physical examination undertaken that day, the applicant has a medical condition and was unfit for work from 31 July 2023 to 1 August 2023, inclusive, and he would be fit for work from 2 August 2023 to 7 August 2023, inclusive, with certain restrictions, including avoiding heavy lifting/ carrying/ pushing/ pulling of more than 5kg, avoiding repeated movement of his back and avoiding prolonged sitting/ standing/ walking/ driving (to do stretching exercise every 3 to 4 hours or as needed).
Accordingly, on 10 August 2023, the Tribunal invited the applicant to attend a hearing by video on 6 September 2023. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant, including the applicant’s stated preference for a hearing by video or telephone and the medical information provided.
The applicant appeared before the Tribunal by video on 6 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in India and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.
The applicant provided the Tribunal with his application for review, a copy of the delegate’s decision and the decision notification letter from the Department. The applicant also provided a completed pre-hearing attendance form, the medical certificate dated 31 July 2023, a change of contact details form, and a response to the hearing invitation. The Tribunal has had regard to these documents.
The Tribunal has also had regard to the documents on the Department file, which include the application for the Protection visa, a statement by the applicant, as well as copies of the applicant’s Indian passport, his New South Wales Photo Card, his Indian driving licence, Election Commission of India card and Indian Income Tax Department card.
The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about India.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided a copy of his Indian passport to the Department and to the Tribunal. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, that he is a national of India, which is also his receiving country.
The applicant claimed at the hearing that he does not have a right to enter and reside in any third country. On the basis of the information before the Tribunal, I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
Claims made with visa application
The applicant made the following claims in the statement that he provided with his Protection visa application:
a.He seeks protection in Australia on the grounds that he fears persecution if he returns to India because he entered an inter-faith relationship with a local woman of the Hindu faith;
b.There are stringent laws on religious conversion involving Hindus, and in practice, a Hindu cannot marry a non-Hindu. A non-Hindu must convert to Hinduism in order to marry a Hindu;
c.He met his girlfriend in a shopping centre. They exchanged telephone numbers and they later started their relationship;
d.Their families never accepted their relationship and threatened to kill them both. Their families considered their relationship to be a rejection of religious teaching. The applicant’s family members also told him that they would have nothing to do with him and because of him, they are not safe in India. They felt betrayed by his actions and warned him about the sentiments of others in their area;
e.The Hindu community leader declared that the applicant’s punishment should be death. He has seen Hindu extremists perpetrate human rights violations on people of other faiths who get involved with the Hindu community;
f.His girlfriend’s family expelled her from her ancestral village because of her decision;
g.The applicant was warned by a Hindu group, which threatened to kill both the applicant and his girlfriend if he did not leave her;
h.His girlfriend’s family accused him of converting her to his Sikh religion; and
i.The local Hindu leader also made a big issue of it and threatened the applicant’s family. His distant relatives have warned him of the gravity of the situation and told him not to return to India in the near future.
Departmental interview and the delegate’s decision
The applicant provided a copy of the delegate’s decision with his application for review. The applicant was invited by the Department to attend an interview on 11 May 2018, which he attended. He was assisted by a Hindi-speaking interpreter at the interview.
The delegate’s reasons for decision indicate that the applicant gave the following testimony at the interview:
a.His father died when the applicant was [age]. The applicant lived with his mother only before he came to Australia. He has never lived anywhere else in India, other than his village of [Village 1], and he never lived alone in India. His mother still lives in the house where he grew up in [Village 1], and she has had no problems since the applicant arrived in Australia. He has a married sister who lives at a different house in the same village;
b.The applicant initially claimed that he was religiously married in a Sikh gurdwara, though he had no documents in evidence of this. He stated that he married his girlfriend [in] December 2017. However, when asked further, he indicated that he and his girlfriend were on their own in the gurdwara and pledged themselves to one another. No-one else was present other than the two of them, and there was no marriage celebrant or member of the Sikh clergy to marry them, but he nevertheless regards himself as being married to his girlfriend because of his pledge;
c.His girlfriend is named [Ms A]and she was born on [date]. She moved in with the applicant and his mother after they made their pledge [in] December 2017;
d.After the applicant came to Australia, [Ms A]’s parents took her back into their own home. Her family is from the town of [Town 1], which is about [distance] away. The applicant and [Ms A] therefore lived together for 20 days before he came to Australia;
e.The applicant came to Australia because his girlfriend’s family wanted and intended to kill him;
f.He came to Australia on a Temporary Activity visa associated with the Commonwealth Games, but he indicated that he did not work at the Commonwealth Games and was not associated with the Games in any way. Nobody told him that he had to go work at the Games. A friend of his in India organised the Temporary Activity visa for him and he is unsure of what procedure his friend followed to obtain the visa. The applicant paid for his ticket to Australia, but did not pay anything else. His friend has good connections which allowed him to obtain the visa. He simply gave his passport to his friend, who then obtained the visa;
g.When asked why it had taken him more than three months to apply for the Protection visa, he responded that he did not know about Protection visas, but a friend [subsequently] informed him he could apply for the visa;
h.[Ms A] did not come to Australia with the applicant because she did not have a passport and did not have enough money to pay for one. She is still living in India with her family, which comprises of her parents, a married brother and his wife, and one sister. When asked why he did not wait with her in India, he stated that there was a 45-day wait for her passport and her brother was trying to kill him;
i.[Ms A]’s family have beaten her for ‘marrying’ the applicant and living at his home. Her parents forced her to return home by beating her, after the applicant had come to Australia;
j.The applicant used to see [Ms A] when he caught a bus to attend his studies towards a [Diploma]. She caught the same bus and they used to greet each other on the bus. On 12 August 2017 the applicant saw [Ms A] at a café at a shopping mall, and they conversed as they were both studying in [a nearby city]. [Ms A] was in [a certain] year of a Bachelor [degree];
k.The applicant intends to formally marry [Ms A] and he believes that she intends to marry him. He intends that they will marry in a gurdwara, hopefully in Australia;
l.The delegate notes that when the applicant was asked, he showed the delegate a number of photos on his mobile phone of himself with a woman whom he claims was [Ms A], touring around towns in Himachal Pradesh (Manali and Shimla) with other friends, and in front of her [university]. [Ms A]’s family was unaware that she had gone interstate with him. The delegate notes that the photographs were not otherwise provided by the applicant for the purpose of his Protection visa application, but notes that the photographs portray a woman with the applicant, and that she appeared to be smiling, and therefore the delegate concluded that the woman appeared to be happy and comfortable to be in the photographs;
m.[Ms A] is Hindu and the applicant confirmed that she had not yet converted to Sikhism. She will convert to Sikhism when she marries him. When asked why he does not convert to Hinduism rather than have [Ms A] convert to Sikhism, he stated that in their culture, the woman converts, if necessary, to the man’s religion;
n.The applicant indicated that he cannot return to India because [Ms A]’s family, more specifically her father, brother and a friend of her brother, have previously tried to assault him and have threatened to kill him if he returns;
o.When asked why he could not obtain adequate assistance or protection from Indian authorities, he responded that he previously asked for help from the police, but they did not accept any statement or first information report from him. This is because [Ms A]’s family members are rich and told the police not to help the applicant. He stated that he would not be able to relocate elsewhere in India because he does not have that much money, and [Ms A]’s brother’s friend would be able to locate him elsewhere in India. [Ms A]’s brother or his friend would make a complaint against the applicant with the police, which would be acted upon by the police elsewhere in India;
p.He was assaulted on 22 December 2017 by [Ms A]’s brother and a group of her brother’s friends. The attack occurred about two kilometres from [Village 1], while [Ms A] was at his home. He was ambushed and assaulted by about 12 men, who slapped and beat him and brandished pistols. They did not kill him because five or six men happened by them and came to the applicant’s rescue. The applicant had to attend hospital afterwards. He went to the police station in the nearby village of Ismailbad, but no first incident report was made about the incident. [Ms A]’s brother and his friends had bribed the police so they wouldn’t process the applicant’s complaint. The assault occurred between 11:00am and midday, but the applicant did not attend the police station until about 5:00pm or 6:00pm; and
q.When questioned why he had not included his girlfriend’s name or any other details about her, apart from her religion, in his written statement, he stated that he did not know much about how to lodge a Protection visa application.
The delegate put to the applicant country information which indicates that inter-faith marriages are legal in India, and persons marrying outside their faith can do so under the Special Marriage Act 1954, and that in the neighbouring state of Punjab, inter-faith marriages between Sikhs and Hindus often occurred, and typically did so without major protest from either group. The applicant responded that he had a friend who was involved in an inter-faith relationship, who was killed by the woman’s friend, and he himself has been threatened with death. He stated that he wants [Ms A] to come to Australia and formally marry him.
The delegate was prepared to accept for the purposes of their decision only, that the applicant has or had a girlfriend in India by the name of [Ms A], who is the woman portrayed in the photographs which the delegate was shown during the interview. The delegate made this finding on the basis of the nature and content of the photographs themselves, which showed a woman who was smiling and who appeared to be accompanying the applicant. The delegate nevertheless had credibility concerns regarding the applicant’s overall truthfulness. This was because of a number of factors including inconsistencies between the background information in the applicant’s written Protection visa application and the information he provided at the interview, inconsistencies in his written claims compared to his claims at interview, as well as the lack of a first incident report in relation to the assault which the applicant claims occurred. The delegate also expressed concern about the applicant’s delay in seeking protection after his arrival in Australia. After considering all of the factors outlined in the decision, the delegate was not satisfied that the applicant had been truthful about his circumstances or that he was credible. The delegate was not satisfied that [Ms A] continues to be the applicant’s girlfriend or that she has pledged herself to him in a future marriage and was therefore not satisfied that the applicant was at that time in an inter-faith relationship.
The delegate was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act. The delegate also considered that there is no real risk of the applicant facing significant harm, as defined by s.36(2A) of the Act, if he returns to India in the foreseeable future.
Evidence at the hearing regarding preparation and contents of application

At the hearing the applicant gave evidence that he remembered making the Protection visa application, which he claimed he filled out himself. The Tribunal asked the applicant whether he was able to read and write English well enough to fill the visa application form out himself, to which he responded yes. The applicant also stated that he wrote the statement which was attached with his application himself. He confirmed that the contents of the application form and the attached statement are true and correct. He confirmed that he did not wish to make any changes to his visa application form or add to the claims contained in it.
Evidence regarding the applicant’s background and travel
The applicant confirmed that he is a citizen of India. He claimed at the hearing that apart from Australia, he has not travelled to other countries. The applicant stated that his religion is Sikh and he is Punjabi. He confirmed that he was born in [Village 1] in Haryana and that he lived in this village for [number] years. He stated that he was living at this address immediately before arriving in Australia, and that he was living there with his mother and no-one else. He stated that he has a sister who is married and also lives in [Village 1], though in a different house. His father died when the applicant was [age]. He stated that he had last spoken to his mother the day before the hearing, and to his sister two days before the hearing.
When asked if he is in a relationship with anyone, the applicant stated that he is married to an Australian woman named [Ms B], whom he married [in] September 2022. He stated that he met her at the New Year’s Eve fireworks in Sydney on 31 December 2020 and that he lives with [Ms B].
The applicant stated that he completed high school in India in [year], following which he did a [Diploma] [course] in [year]. He stated that he has never formally worked in India, and that his family has a farm where they grow crops such as rice, vegetables and wheat. He stated that his mother did the farming, and that he also did it. He stated that the crops were grown for their own consumption and well as for sale so they could make a living from it.
The applicant confirmed that he arrived in Australia [in] January 2018 holding a Temporary Activity visa. When asked what activity his visa related to, he stated it was for the Commonwealth Games. He then confirmed that he did not participate in the Commonwealth Games and was not involved in them in any way. When asked who organised the Temporary Activity visa for him, he stated that it was a friend of his called [Friend C], who is engaged in farming. When questioned how [Friend C] was able to organise a Temporary Activity visa, the applicant stated that he is not sure, though [Friend C] has a good circle of friends and was able to oragnise the visa for him. He stated that he did not pay for the visa, only for his ticket to Australia. He stated that he borrowed the money from a friend. He confirmed that he travelled using his own passport. When asked why he came to Australia, the applicant stated that he was under threat and things were very risky. He stated that his ex-girlfriend’s parents tried to attack him three times, which is why he contacted his friend and had the visa arranged for him.
The applicant stated that he is currently working [and] has done so since gaining work rights under his new Bridging visa.
Applicant’s claims for protection
When asked about his claims for protection, the applicant stated that his ex-girlfriend’s family tried to kill him and harmed him two to three times when he was in India because she is a Hindu and he is a Sikh, and her parents did not want him to marry her.
When asked about the relationship, the applicant stated that he met his ex-girlfriend in her village, in the shopping centre mall. When asked the name of the village, he stated that it was [Town 1]. He stated that her name is [Ms A]and that he met her in June 2016. He stated that her birth date is [date]. When asked if he first time he met her at the mall, he stated yes. When asked on two occasions if that was the first time that he saw her/laid eyes on her, the applicant responded yes on both occasions. When asked how they met, he stated that he asked her to give him an address, then they talked, had coffee and exchanged numbers. After this they started talking on the phone and meeting up. She would catch the bus to go to her college and he also caught the bus to go to his [college], so they would meet up on the bus. He stated that she was studying [a course].
When asked if anyone knew about the relationship, he stated that he told people and everyone knew, including his family and her family. He stated that her parents were not ready for him to marry her, and they tried to kill and harm him. He stated that he tried to convince her parents about the relationship, but they disapproved and did not want their daughter to marry into a Sikh household. When asked if he met with her parent’s, he stated that it went very badly. They called the applicant to their place and her father was very rude to him, and her father and brother pushed him and threw him out of the house. He stated that [Ms A] also had a mother and sister. He gave evidence that the relationship caused no problems from his family, as he only had his mother and she agreed to it.
The Tribunal took evidence from the applicant that he was assaulted by [Ms A]’s family three times. He stated that the first time was when he went to her house to meet her family. He stated that her father and brother pushed him and hit him on the face and kicked him. The applicant left, after which he started seeing [Ms A] in hiding.
The second incident occurred when [Ms A]’s brother and his friends saw the applicant returning home. He stated that he was returning home on his bike and travelling along a road. The men pushed him over and beat him ‘a lot’. He stated that he did not remember when this happened, but then stated it was in May 2017. He also claimed he did not remember how many men were involved, though it was roughly 10 to 12 people. [Ms A]’s brother had a gun and others had rods, which they used to beat the applicant. He claimed that he was beaten until he was unconscious, and he does not remember who took him to the hospital. When asked if he could remember anything else about the incident, he stated this was all. When asked if [Ms A]’s brother used the gun, he stated that he threatened him with it. [Ms A]’s brother’s friends beat the applicant forcefully with the rods. After he fell, they continued hitting him with the rods and also punched his face and body.
When asked how long he was in hospital, he stated it was 20 to 25 days. When asked what treatment he received in hospital, he stated that they put ointment and bandages on him, and they gave him medication. When asked what injuries he was being treated for, he stated that he had visible bruises and scratches on his skin, as well as internal injuries which hurt a lot. He stated that he does not have a copy of any medical reports relating to this hospitalisation. When asked why he has no such reports, he stated that they do not keep them in India for too long. He stated that he returned home after the hospital and they kept the report for two to three months, after which his mother threw it out because she didn’t know he would need it.
When asked if he reported the incident to the police, he stated that he went to the police [station], but [Ms A]’s brother and family have a good political circle, so they told the police not to write a report if he went to the station. When asked what happened when he went to the police, he stated that he told the police what happened, but they told him it was a family matter. When he insisted that the police do a report, they pushed him out of the police station. He stated that it was a local police station. He stated that he went to the police station after he got out of hospital and that his mother went to the police station with him. He stated that he has no police reports as the police did not take a report from him.
When questioned further about the second incident and subsequent events, he stated that the incident occurred on 15 or 16 May 2017, at about 5:00pm. He confirmed that he was unconscious after the attack and woke up in hospital later that night, around 11:00pm or 12:00am. The Tribunal put to the applicant that if he was in hospital for 20 to 25 days, when did he try to report the incident to the police. He stated that he went to the police station after he was feeling better. He stated that this was not until June 2017. The Tribunal questioned why the police would not have investigated the matter if he was hospitalised for 20 to 25 days, after which the applicant stated that [Ms A]’s brother has strong links to the BJP (Bharatiya Janata Party), and that the party would have put pressure on the police not to make a report.
The third incident occurred when he brought [Ms A] to his home after they paid their respects at a gurdwara. [Ms A]’s brother came to their home and beat the applicant up in front of his mother. Her father and three or four of his brother’s friends also came. They beat the applicant with their hands. He claimed that [Ms A] lived with him for 15 to 20 days, but after the third incident, her family took her away with them. He stated that this incident occurred in December 2017, before he came to Australia.
When asked if he and [Ms A] were ever married, he stated that there were not married on the papers, though they went to the gurdwara, where they promised each other that they would marry. He stated that there was no ceremony and no-one else was there, just him and [Ms A]. He stated that she was ready to convert to Sikhism, but her family was not ready for her to do it. He stated that he did not consider converting to Hinduism because his family is Sikh and Punjabi, and he did not want to change his religion.
When asked where [Ms A] is now, the applicant stated that he does not know because he lost connection with her in 2019 as her parents forced her not to talk. He claimed that up until then he was in contact with [Ms A] through telephone and video calls.
When asked what he fears would happen if he returns to India, he stated that he is scared to return there. When asked the basis for such fear, he stated it is because of his previous inter-faith relationship. He stated that [Ms A]’s family continue to call his mother to check whether he is in India, and they are still trying to get him to return to India so they can kill him. He stated that [Ms A]’s family would come to his house every month and push him and his mother. He stated that [Ms A]’s brother and his friends have threatened his mother since he left India. [Ms A]’s parents threatened his mother in her own home and said they would kill her.
When asked on two occasions whether he had received threats from anyone else or any other threats he had not yet told the Tribunal about, the applicant responded that this was all and gave no other details of threats other than again referring to [Ms A]’s brother’s friends.
When asked if he has any evidence of his relationship with [Ms A], the applicant stated that he does not. The Tribunal questioned whether he has any records of telephone conversations or texts, given his claim that he was in contact with [Ms A] by telephone and video until 2019. The applicant responded that he has lost everything as he has a new phone. The Tribunal put to the applicant that he had an interview with the Department in May 2018, and then lodged his application for review, yet he had not provided evidence of a continuing relationship with [Ms A]. The applicant responded that he did not have this evidence.
The Tribunal questioned the applicant about the photographs which he showed the delegate during the Departmental interview in May 2018. He stated that he remembered the photographs, but he did not provide them to the Department as the Department did not ask him for copies. He stated that the photographs were of him and [Ms A] when they went to the movies or went somewhere to eat.
When asked why [Ms A] did not come with him to Australia, he stated that she did not have a passport. The Tribunal questioned why they didn’t take steps for her to obtain a passport for [Ms A] if they were having issues with her family over an extended period. He stated that they did not talk about marriage until 2017 and he didn’t know they could both come to Australia. They did not have that much money.
The Tribunal put to the applicant that he arrived in Australia [in] January 2018 but did not apply for the Protection visa until 26 April 2018, over three months later. He responded that at the time he just came to Australia and didn’t know about Protection visas. He later found out about Protection visas through a [friend].
He claimed that he cannot obtain protection or assistance from the authorities in India as [Ms A]’s family members are rich and have asked the police not to help him. He stated that there is a lot of corruption in India and [Ms A]’s brother has good connections with a BJP leader. He claimed that he could not relocate to another part of India to avoid the harm he fears as the BJP government is ‘almost everywhere’ and [Ms A]’s family’s friend circle is so large.
The applicant confirmed that his current wife, [Ms B], is an Australian citizen. The Tribunal put to the applicant that it has concern as to why [Ms A]’s family would have any interest in him given he is now married to an Australian woman and would therefore no longer be in a position to marry [Ms A] or encourage her to convert to Sikhism. The applicant responded that after he told people in India that he got married, [Ms A]’s family are now even angrier and said they are going to kill him. This is because [Ms A]’s family have a good reputation in the area, but when [Ms A] started to live with him, her family said this was shameful and they lost their reputation, so they now wish to kill him. When asked if he has any evidence that [Ms A]’s family wish to kill him, he stated that they visit his house and threaten his mother and she then tells him.
The applicant confirmed there is no other reason why he does not wish to return to India. When asked if there is any other relevant information which he wishes the Tribunal to consider, he repeated that [Ms A]’s family wants to kill him.
When asked if he has any other applications for a visa, the applicant stated that he has lodged a Partner visa application so he can stay in Australia. This was lodged in December 2022 and is sponsored by his wife, [Ms B]. He stated that [Ms B] does not wish to see him return to India as she is scared for him.
Discussion of country information
The Tribunal discussed with the applicant relevant information from the most recent DFAT Country Information Report for India, dated 10 December 2020, which contains the following section on inter-faith and inter-caste marriage:
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.
3.127   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’.
3.144   DFAT assesses 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.

The Tribunal put to the applicant that on the basis of this country information it may infer that the law in India allows inter-faith marriages between Hindus and Sikhs. The Tribunal also put to the applicant that the country information may provide some support for his claims that people who enter inter-faith relationships in India may experience some disapproval, although the treatment of the people involved can depend on the families involved. Treatment may range from disapproval, harassment, ostracism and violence, however people in inter-faith relationships may also experience approval from their families.
The applicant responded that even though the law allows inter-faith relationships, in rural areas families are backwards and do not agree to inter-faith relationships. He stated that ‘our family’ is uneducated and does not abide by the law and does not agree with it.
Concerns put to the applicant regarding his claims and evidence
After the applicant gave his evidence and the Tribunal discussed the country information with him, the Tribunal put a number of potential concerns to the applicant regarding his claims and the evidence and gave the applicant an opportunity to comment or respond to each potential concern. This included concerns about inconsistencies between the applicant’s written claims and his testimony to the Department and other concerns about his credibility as a witness. Where relevant, these concerns and the applicant’s responses to them are set out in the analysis of the findings and reasons below.
FINDINGS AND REASONS
In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims the applicant has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need, and importance of, being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
The Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him 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 him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
I have carefully considered the claims made by the applicant in his Protection visa application, in his testimony to the Department and in his evidence at the hearing. On the basis of the applicant’s Indian passport, I accept that the applicant is a [age]-year-old Indian national who was born in [Village 1], Haryana. I accept that the applicant is a Sikh. I am prepared to accept the applicant’s evidence that his father passed away when he was [age], as this information is consistent with his testimony to the Department. I make this finding despite the applicant having indicated in his Protection visa application in 2018 that his father is not deceased. I prefer the evidence which the applicant gave about his father at the hearing and Departmental interview because I have concerns about the applicant’s claim that he completed the Protection visa application himself, which I address further below. I also accept the applicant’s evidence that he lived with his mother in [Village 1], that he has never lived elsewhere in India and that he has a married sister who lives in a different house in the same village, as this information is also consistent with the testimony he gave at the Departmental interview.
I note that the delegate was prepared to accept for the purposes of their decision only, that the applicant had a girlfriend in India by the name of [Ms A], who is the woman who was in the photographs which the delegate was shown during the Departmental interview. The delegate made this finding on the basis of the nature and content of the photographs themselves, which showed a woman who was smiling and who appeared to be accompanying the applicant. Copies of these photographs were not provided to the Department and there is no documentary evidence in support of this relationship on either the Department file or the Tribunal file. Although the applicant has not provided the Tribunal with any evidence of a relationship with anyone in India, and claims that he lost the photographs when he lost his phone, I am also prepared to accept, for the purposes of this decision only, that the applicant had a girlfriend by the name of [Ms A], on the basis of the delegate’s finding in this regard, which was made after the delegate observed the photographs produced by the applicant at the interview.
I also accept the applicant’s evidence, for the purposes of this decision only, that he now claims to be married to a [Ms B], whom he married [in] September 2022, and that [Ms B] is an Australian citizen. I also accept that the applicant lodged an application for a Partner visa in December 2022, for which [Ms B] is a sponsor. I also note in this regard that this information is consistent with information from the applicant’s records within the Department’s ICSE system, information of which is contained in documents on the Tribunal file. The Tribunal did not need to put this information to the applicant using the procedure set out in s.424AA of the Act and does not rely on these documents as the information is consistent with the applicant’s own evidence provided at the hearing. The Tribunal relies on the account the applicant has given of his marriage to [Ms B] and of his Partner visa application.
However, for the reasons set out below, I do not accept the remainder of the applicant’s claims and have concerns about his credibility as a witness and the overall truthfulness of his claims.
Firstly, the Tribunal has concerns that the claims made by the applicant in his Protection visa application do not contain a sufficient level of detail to be credible or persuasive, and in combination with other concerns with his evidence, the Tribunal has concerns that the applicant’s written claims are not his own, but rather a general set of claims which have been provided to him for the purpose of claiming protection. The applicant claimed at the Departmental interview and the hearing that he prepared his claims entirely on his own, however he changed his evidence in this regard following questioning by the Tribunal.
In this regard, I note that the applicant’s written statement accompanying his visa application is a set of general claims which do not contain specific information which identifies the applicant or his circumstances, other than the applicant’s name at the top of the statement (‘Statement of [applicant name]’) and his name at the bottom of the statement, which is in a different font. The applicant claims that he is an Indian citizen seeking protection in Australia on the basis that he is a Sikh who has an inter-faith relationship with a Hindu woman, but does not otherwise contain any personal information about the applicant’s circumstances, such as details of where he is from in India, what he did in India, the name of his girlfriend, where she is from, when he met his girlfriend, how long they were in a relationship or any specific details of harm experienced by the applicant or anyone else, other than general claims about threats of violence. The applicant did not provide the details about such matters, other than his own background information supplied in his visa application form, until he was interviewed by the Department in May 2018. The statement is a general set of concerns about inter-faith marriages involving Hindus in India and then a general set of claims about the applicant having entered a relationship with a Hindu woman, which was rejected by both of their families. The statement claims that the applicant met his girlfriend in a ‘shopping centre’, however the words shopping centre are in a different size font (Arial 12) from the rest of the document (Arial 14), suggesting that they may have been added into a general statement that was provided to the applicant for the purpose of claiming protection, together with his name added to the top and bottom of the statement.
When this concern was put to the applicant, he claimed that he wrote the statement himself and that he didn’t know what fonts to write his statement in. The Tribunal clarified that the issue is not with the font chosen to write his statement, but with the general claims made in the statement, which contain no personal information specific to the applicant other than his religion, and to which his name and the location where he claims he met his girlfriend appear to have been added at a later stage. The applicant again claimed that he made the entire statement himself. The reasons which follow also support a concern that the applicant did not write the statement in his visa application himself, but rather has been provided with a general set of claims for the purpose of claiming protection.
A second concern is inconsistencies in the background information provided by the applicant in his visa application with that given at the interview and in his evidence at the hearing. These inconsistencies suggests that the visa application was not prepared by the applicant as he claimed in his application, at the Departmental interview and at the hearing. In his visa application, the applicant provided the names of both of his parents and stated that neither of them is deceased. He did not provide the details of any other family members. At the Departmental interview, the applicant gave testimony that his father died when the applicant was [age]. He also told the Department that he has a sister who lives in the village where he grew up. The applicant confirmed in his evidence before the Tribunal that he has a sister and that his father died when he was [age]. I have concerns that in his visa application, the applicant declared that his father was not deceased.
The applicant did not provide a convincing response to this concern. At first, he stated that he declared in his visa application that his father was deceased. When the Tribunal indicated that this was not the case, the applicant claimed that when he filled out the application form, his English was not that good. The Tribunal put to the applicant that it had difficulty with this explanation, given the statement attached to his application contains a number of complex concepts and statements which suggest that whoever prepared the statement has a good command of English. These include references to concepts such as human rights violations resulting from ethnic and religious identities, religion being closely connected to ethnicity and nationalism in India, there being ‘stringent laws on religious conversion’ of Hindus which impact inter-faith relationships, as well as reference to the concept of secularism. The Tribunal put to the applicant that it had trouble accepting that he had difficulty understanding a simple question about whether his father is deceased if he was capable of writing a statement containing such complex concepts. The applicant then claimed for the first time that his ex-girlfriend helped him fill out the form as she has a good grasp of the English language. When the applicant was questioned further about this, he was unable to give a convincing explanation for why he had not told the Department or the Tribunal that his girlfriend or anyone else had assisted him, and why he insisted in both his testimony to the Department and his evidence before the Tribunal that he completed the visa application on his own, including writing the attached statement on his own. The Tribunal finds the applicant has not been truthful about the preparation of his visa application and accompanying statement, including whether he received any assistance.
Thirdly, the Tribunal has concerns about inconsistencies between the claims made by the applicant in his statement and those claimed at the Departmental interview or the Tribunal hearing. In his written statement the applicant claims that his girlfriend’s family expelled her from her ancestral village because of her decision, however at the hearing, the applicant claimed that she went to live with the applicant for 15 to 20 days, following which her family forced her to return to her family home. When this inconsistency was put to him, the applicant attempted to explain that his girlfriend came to live with him when she was expelled from her village, however this caused further shame for her family, so her family came to his home and beat him up and took [Ms A] back with them. I do not accept this explanation as the applicant gave no evidence at the hearing to suggest that his girlfriend was expelled from her village. This explanation is also inconsistent with his testimony at the Departmental interview, at which he claimed that [Ms A]’s parents took her back to their home only after the applicant came to Australia.
There are also inconsistencies regarding the applicant’s claims of the threats he received in India, including who was responsible for the threats. In his written statement, the applicant claims that besides both his and his girlfriend’s families threatening to kill both the applicant and his girlfriend, his local village community did not accept his inter-faith relationship and the local Hindu community leader declared that his punishment should be death. He claims that he had seen Hindu extremists perpetrate atrocious human rights violations on people of other faiths who became involved with Hindus. He also claims that he was warned by a Hindu group that they would kill him if he did not leave his girlfriend. He claims that local Hindus took issue with accusations that he was converting his girlfriend to the Sikh religion, and they threatened his family. Whereas in his testimony to the Department and his evidence before the Tribunal, the applicant did not give evidence of threats from local Hindu groups, but instead claimed that he was threatened by his girlfriend’s family and friends of his girlfriend’s brother.
When this concern was put to the applicant, he stated that the BJP is Hindu and was supporting his ex-girlfriend’s family, and it was his ex-girlfriend’s family who were the ones who tried to kill him. I do not find the applicant has provided a sufficient explanation for why he gave no evidence of threats from Hindu community leaders in his evidence, despite the Tribunal asking him on more than one occasion whether he received any threats from persons other than his ex-girlfriend’s family. These inconsistencies add further support to the concern that the applicant’s written statement is a general set of claims which are not his own, as well as concerns about his credibility and the truthfulness of his claims.
Fourthly, the Tribunal has concerns about inconsistencies between the applicant’s testimony at the Departmental interview and his evidence at the hearing. As noted already, in his testimony to the Department, the applicant claimed that [Ms A] lived with him for about 20 days before he came to Australia, and that she returned to her parents’ home after he departed for Australia. He claimed that her parents forced her to return home by beating her after he came to Australia. Whereas in response to questioning about these events by the Tribunal, the applicant claimed that on the occasion of his third assault, [Ms A]’s family came to beat him up at his home and take [Ms A] away with them. I have already addressed this inconsistency at paragraph 68 of these reasons and find that the applicant has not provided a convincing explanation.
There are also a number of significant inconsistencies in the applicant’s accounts of the harm he experienced as a result of his relationship with [Ms A]. At the Departmental interview, the applicant gave an account of only one assault, which he claims occurred on 22 December 2017, when [Ms A]’s brother and a group of his friends ambushed and assaulted him about two kilometres from his home in [Village 1]. He claimed that the group consisted of about 12 men who slapped and beat him and brandished pistols. He claims that they did not kill him because a group of about five or six men saw what was happening and came to his rescue. He told the Department that the assault occurred between 11:00am and midday, that he then attended a hospital and attended a police station at about 5:00pm or 6:00pm the same day. He claimed that the police would not process his report because [Ms A]’s brother and friends bribed them.
Whereas at the hearing the applicant gave evidence of three assaults. He gave an account of an assault involving 10 to 12 men, including [Ms A]’s brother, who assaulted him while he was returning home to [Village 1] on his bike. However, the applicant gave evidence that this incident occurred in May 2017, rather than December 2017. He also gave evidence that in December 2017 he was assaulted by [Ms A]’s brother and father when they came to his home. There are also a number of other inconsistencies with the applicant’s account of the incident where he was assaulted on the road back to his home. At the hearing the applicant gave evidence that the assault occurred about 5:00pm and that he did not remember who had taken him to hospital as he was beaten until he was unconscious. He claimed that he woke up later that night at 11:00pm or 12:00am and that he remained in hospital for 20 to 25 days. He claimed that he did not try to report the matter to the police until June 2017.
When these inconsistencies were put to the applicant, he responded that it has been a long time since the incidents happened and he may have forgotten a bit. He stated that he went to the hospital, but when he was feeling better, he went to the police. He gave a vague explanation, stating that he did not remember exactly what happened, but he thinks these things happened during these months.
I do not find the applicant’s explanation convincing and find he has not provided sufficient explanation for such marked inconsistencies. The inconsistencies go to the applicant’s evidence about the number of times he was assaulted, when he was assaulted by a group of men while he was travelling home, the time the assault occurred, the length of time he remained in hospital and the date when he attempted to report the assault to the police. I find that these inconsistencies are significant. I do not accept the applicant’s claim that he has forgotten some of the events because they occurred some time ago. I do not find this explanation to be credible given the account the applicant gave at the hearing was of a more detailed and serious nature than that given at the Departmental interview on 11 May 2018, less than six months after any claimed assault in December 2017. This includes new claims that he was hospitalised for between 20 to 25 days, as well as accounts of two other assaults. I consider the inconsistencies in the applicant’s accounts to be of great concern given his evidence that one of the incidents occurred in December 2017, a few weeks before he came to Australia, and was therefore the trigger which resulted in him departing India. I find that the inconsistencies in these accounts raise serious concerns about the applicant’s credibility and the truthfulness of his claims.

Fifthly, the Tribunal has concerns that the applicant has provided no evidence of any assaults or police reports or of his claimed hospitalisation as a result of the incident where he was beaten by a group of 10 to 12 men, which he variously claims occurred in either May 2017 or December 2017. The Tribunal put to the applicant concern that he has provided no documentary evidence of his hospitalisation despite his claim that he was hospitalised between 20 to 25 days. The applicant responded that when he came to Australia, he asked his mother about the hospital documents, but she told him that she had thrown them out. The Tribunal questioned why the applicant could not now obtain a report from the hospital, which would set out the dates when he was hospitalised, his injuries and what treatment he had received. The applicant then stated that it was only a small private hospital which is staffed by only one doctor. The applicant stated that the doctor had told him that he did not have any documentation and there was no report on the computer.
The Tribunal put to the applicant that it had trouble accepting the applicant’s explanation given he claimed in his evidence that he had been a patient in the hospital for 20 to 25 days. The Tribunal questioned how a small private hospital with only one doctor, had the capacity to take the applicant in as a patient for 20 to 25 days. The applicant then stated that the hospital was a small one in his village, and he had stayed there only five to 10 days, but that he would go back there for check-ups and it took him 20 to 25 days to recover. The Tribunal questioned the applicant as to why he had not mentioned this length of treatment when he was interviewed by the Department and put to him that he appeared to be shifting his evidence in response to concerns raised by the Tribunal. The applicant responded that he is telling the Tribunal these things because they happened. He stated that these things happened many years ago and he cannot remember them. I do not find the applicant’s explanation for the lack of supporting evidence to be convincing, and have concerns that his explanation demonstrated a propensity to shift his evidence and tailor it to concerns raised by the Tribunal.
A sixth concern is the absence of any supporting evidence to indicate that the applicant continued to be in a relationship with [Ms A] after he arrived in Australia. As noted above, during the Departmental interview the applicant showed the delegate photographs of himself with a woman in India, and he claimed these photographs were of [Ms A]. The applicant claims that he does not have the photographs any longer as he lost his phone. He claims that he continued to have an ongoing relationship with [Ms A] until 2019 and claimed that he remained in contact with her by telephone until 2019. Despite this claim, the applicant has not provided any supporting evidence, such as telephone calls, texts or email records. When this concern was put to the applicant, he stated that when he lodged the Protection visa application, he used to call [Ms A] on the telephone. He stated that he thought he would present this information to the Department. The Tribunal put to the applicant that he attended an interview with the Department in May 2018 but provided the Department with no evidence of any ongoing communication with [Ms A]. The applicant responded that at the interview with the Department, he showed the Department the photographs that he had, and that he thought he would show the Tribunal the evidence of his calls to [Ms A], but he has since lost his telephone. I do not accept the applicant’s explanation of the lack of any evidence of an ongoing relationship with [Ms A] or anyone else in India after his arrival in Australia. I consider that the applicant has had sufficient opportunity to provide such evidence, if it was available, either with his Protection visa application, at the Departmental interview held in May 2018, or as part of his making application for review.
For all of the above reasons, the Tribunal finds the applicant not to be a credible, truthful or reliable witness as to his claims. His evidence at the hearing was inconsistent with the account he gave at the Departmental interview, particularly in relation to the incidents of violence or assault he claims occurred in India, and his claims are overall not persuasive and not supported by any documentary evidence. The applicant also demonstrated at several points in the hearing, a propensity to shift his evidence in response to concerns raised by the Tribunal. The applicant also conceded after questioning at the hearing that he did not prepare his Protection visa application and statement on his own, despite maintaining this claim at the Departmental interview and at the start of his oral evidence. He then gave an unconvincing account of [Ms A] having assisted him with his claims, and I do not accept his evidence regarding the preparation of his visa application. Considered cumulatively, the Tribunal is not satisfied that the applicant is a witness of truth and finds that the applicant has fabricated accounts of events and claimed fears, upon which he has based his protection claims.
The Tribunal notes in passing that an additional concern may be raised by the applicant’s evidence that he entered Australia holding a Temporary Activity visa which was associated with the Commonwealth Games, despite the applicant confirming that he was not involved in the Commonwealth Games in any way. The Tribunal notes however that it does not seek to rely upon this information and confirms that the above credibility finding was made without relying on evidence of the applicant’s arrangements for entering Australia on a Temporary Activity visa. The Tribunal notes for the sake of clarity that it put to the applicant that document fraud associated with immigration fraud is a common criminal activity in India.[1] DFAT advises that organised networks of agents are known to provide complete packages of fake documents, for which they charge significant fees.[2]
[1] DFAT Country Information Report, India, 10 December 2020, para 5.65.
[2] DFAT Country Information Report, India, 10 December 2020, para 5.65.
The Tribunal questioned how the applicant’s friend was able to obtain a Temporary Activity visa for him after being provided only the applicant’s passport, when the applicant was not connected with the Commonwealth Games in any way. The applicant stated that he does not know and that his friend’s circle is very good. He stated that his friend did not provide him with any information about it. On this occasion the Tribunal does not make any adverse findings on this issue given it does not have a copy of the documents associated with the applicant’s Temporary Activity visa. The Tribunal considers that there are a number of other concerns with the applicant’s claims and evidence, which are set out above, and which are the basis for the Tribunal’s findings on the applicant’s credibility.
Does the applicant have a well-founded fear of persecution if he returns to India?
Overall, the Tribunal does not accept that the applicant is a witness of truth in relation to his claims. The Tribunal accepts that the applicant was born in [Village 1], Haryana, where he lived with his mother, and that his father passed away when the applicant was [age]. The Tribunal accepts that the applicant is Sikh and of Punjabi background. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant may have had a girlfriend in India by the name of [Ms A]. The Tribunal is also prepared to accept that it is plausible that the applicant’s girlfriend may have been of the Hindu faith. I am also prepared to accept that the applicant may have met his girlfriend while travelling to college. I am therefore prepared to accept that the applicant may have had an inter-faith relationship with a girlfriend while he lived in India.
I do not however accept the applicant’s claims regarding any threats or harm that he experienced in India as a result of such a relationship. I do not accept his written claims that there are stringent laws on religious conversion in India, particularly for Hindus involved in inter-faith relationships. The Special Marriage Act 1954 enables both inter-faith and inter-caste marriages, and this Act is available to all Indian citizens who choose to marry outside their faith.[3] I also note that the Hindu Marriage Act 1955 allows members of the Hindu, Buddhist, Jain and Sikh religions to intermarry without declaring detachment from their religion.[4] I note however that despite the legality of such marriages, in practice there is a continued and growing intolerance in Indian society to inter-caste and inter-faith marriages,[5] though the treatment of people in inter-faith marriages varies according to the families involved.[6]
[3] DFAT Country Information Report, India, 10 December 2020, para 3.136.
[4] DFAT Country Information Report, India, 10 December 2020, para 3.136.
[5] DFAT Country Information Report, India, 10 December 2020, para 2.137.
[6] DFAT Country Information Report, India, 10 December 2020, para 3.144.
For the reasons above, in particular the inconsistencies in the applicant’s accounts at the Departmental interview and the hearing, I do not accept that the applicant was threatened or harmed in any way as a result of any previous relationship in India. I do not accept that his girlfriend’s family or his own family opposed the relationship. I do not accept that the applicant’s girlfriend moved in with him in December 2017 just prior to his departure from India and do not accept that she was expelled from her village. I also do not accept that the applicant was assaulted by his girlfriend’s family on any occasion. I do not accept that the applicant was beaten up by a group of about 10 to 12 men while he was travelling home, either in May or December 2017, and I do not accept that the applicant was assaulted by his girlfriend’s brother, father or anyone else at his home or his girlfriend’s home at any time. It follows that I do not accept that the applicant was hospitalised as a result of any such assaults or that he reported any such assaults to the police. I also have separate concerns about the lack of any documentation to support his claims that he was hospitalised and attempted to report an assault to the police, particularly given his claim at the hearing that he was hospitalised for 20 to 25 days. I do not find the applicant’s explanation for the lack of such evidence of hospitalisation to be sufficient and find that he attempted to shift and tailor his evidence in response to questions raised by the Tribunal. I do not accept that Hindu leaders or Hindu groups threatened the applicant in any way or accused him of attempting to convert his girlfriend from the Hindu to Sikh religion. I find, having regard to the evidence as a whole and the concerns which I have set out above, that the applicant has manufactured all such claims of threats and physical harm in order to support a claim for protection and do not accept the truth of any such claims.
I also do not accept that the applicant continued to be in a relationship with [Ms A] after departing India or that he intended to marry [Ms A] after arriving in Australia. Even if I was to accept such claims, for the purposes of this decision only, I accept the applicant’s claim that he married an Australian citizen in September 2022. I therefore do not accept that the applicant intends to formally marry [Ms A] or that she intends to marry him. I do not accept the applicant’s claims that he continues to be of any interest to his former girlfriend’s family in India or to anyone else in India on the basis of any claimed events in 2017. I do not accept that the applicant will be killed, threatened, harassed or harmed in any way by his former girlfriend’s family for any reason if he was to return to India. I have considered the applicant’s claims that [Ms A]’s family are trying to find him and locate him, and that they have threatened to come to Australia. I have considered his claims that they have told his mother that they will kill him. I have also considered the applicant’s claims that [Ms A]’s family has a large circle and wish to harm him because of what he did to a Hindu woman. The applicant has provided no convincing evidence in support of these claims, and the Tribunal considers the applicant has now manufactured these claims as a means of maintaining his claims for protection, given he is now married to an Australian national and can therefore no longer claims that he is an ongoing relationship with [Ms A] or anyone else in India. I do not accept the applicant’s claim that his girlfriend’s family threatened him or his family in any way. In this regard, I note the inconsistent accounts of assaults by the members of his former girlfriend’s family and the concerns I have set out regarding the applicant’s credibility and truthfulness overall. I also note that in his testimony to the Department in May 2018, the applicant stated that his mother has had no problems since he departed for Australia. While I have had regard to the applicant’s claims and his explanations for any inconsistency, given the concerns with the applicant’s credibility and his propensity to shift his evidence, I do not accept the applicant’s explanation.
The applicant no longer claims that he is in an ongoing relationship with an Indian national of Hindu faith, but rather now claims that he married an Australian national in September 2022, I find there is insufficient evidence to support a finding that the applicant will experience any harm as a result of a previous inter-faith relationship which he claims ended in 2019. I have not accepted any of the applicant’s accounts regarding threats or violence that he experienced in India, nor his claims that [Ms A]’s family continue to threaten him or his mother or have any interest in harming him. I find that the applicant has not provided any credible or convincing evidence regarding his claims to fear harm as a result of any previous relationships in India, whether with [Ms A]or anyone else.
These findings are further reinforced by the applicant’s delay in claiming protection. The applicant first arrived in Australia [in] January 2018 and did not apply for the Protection visa until 26 April 2018, over three months after his arrival. When this concern was put to the applicant, he stated that when he arrived in Australia, he was new and didn’t know about Australian laws. He stated that he was from a backwards area in India and only became aware of the Protection visa when a friend of his told him that he could lodge an application for the visa. I do not find that the applicant has provided a convincing or compelling reason for the delay.
Delay in seeking a Protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. Even a three-month delay in lodging a Protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution. In Selvadurai v The Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, the Court observed in regard to a delay in lodgement of a Protection visa application: ‘In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant’s alleged fear of persecution. It is a rational consideration open on the material.’ In the Tribunal’s view, the applicant’s delay in lodging a Protection visa application further supports a finding that the basis of the claim for protection should not be accepted.
The applicant did not claim that he faces a risk of harm for any other reason or on any other basis on return to India, and on the information before me, I find that there is not any other basis for a risk of harm to the applicant on return to India.
Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, I find there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, if he returned to India, now or in the reasonably foreseeable future.
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 s.36(2)(a). 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).
Complementary protection
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).
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future. I have found that the applicant is not in an inter-faith relationship with anyone in India, but rather (for the purposes of this decision only) he has been married to an Australian national since September 2022. I have not accepted that the applicant continued to be in an inter-faith relationship after departing India in January 2018. I have also not accepted any of the applicant’s claims regarding the threats or physical harm which he experienced in India. I consider that the applicant has fabricated these claims in order to support a claim for protection. I have also not accepted the applicant’s claims about the threats that his mother receives from his former girlfriend’s family or his claims of ongoing threats of harm which they may have against him. I do not accept that the applicant would be of interest to his former girlfriend’s family or to anyone else in India on the basis of his claims.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to India now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion
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 s 36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Frank Russo
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4360

26 September 2023

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