1821619 (Refugee)

[2023] AATA 2528

1821619 (Refugee) [2023] AATA 2528 (30 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821619

COUNTRY OF REFERENCE:                   India

MEMBER:C. Packer

DATE:30 June 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 30 June 2023 at 7:48pm

CATCHWORDS

REFUGEE – protection visa – India – Federal Circuit Court remittal – particular social group – love marriage – marriage without family approval – inter gotra marriage – religion – Sikh – mental health issues – internal relocation – false legal proceedings – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2; r 1.12

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

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

2. The applicants who are citizens of India, applied for the visas on 28 August 2013 and the delegate refused to grant the visas on 3 July 2014.

3. The applicants applied for review of the delegate’s decision. Tribunal 1 (differently constituted) held a hearing on 12 August 2015. On 18 January 2016 Tribunal 1 affirmed the delegate’s decision.

4. The applicants applied to the Federal Circuit Court, and by Court order [in] June 2018 the [Federal Circuit Court] remitted Tribunal 1’s decision on the basis that the tribunal failed to consider the particular mental health concerns raised by the first-named applicant and the impact of those concerns on any possible relocation.

5. On 24 June 2022 the applicants attended my Tribunal hearing. The applicants were represented in relation to the review by their registered migration agent.

6. The issue in this case is whether the applicants meet the refugee criterion, and if not, whether the applicants are entitled to complementary protection. A summary of the relevant law follows.

7. The applicants’ claims are centred on their fear of being harmed in their home area and throughout India, because of their marriage. After considering their evidence, the material before the Tribunal including country information, I do not accept that they face serious or significant harm if they return to Chandigarh in India. My assessment follows.

   RELEVANT LAW

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

9. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

11. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

12. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

13. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

14. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

15. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

16. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

17. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

18. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

19. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

22. 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.

    Member of the same family unit

23. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouses and children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

24. The applicants’ protection visa application provided some basic background information, and the applicants supplemented this with further details including in submissions, written statements and at the hearings.

25. The applicants are Sikhs from Punjab state, India. The first-named applicant (the applicant) first entered Australia [in] April 2009 holding a student visa. He travelled to India between December 2010 and February 2011. On 9 September 2011 he was granted another student visa. [In] December 2011 in India (during the applicant’s trip between [December] 2011 and [February] 2012) the applicants solemnised a marriage “as per Sikh rites and ceremonies at [Location 1], [Village 1], Tehsil and District Mohali”. He then had two further trips to India October 2012 to February 2013 and April to July 2013.

26. The second-named applicant arrived in Australia [in] July 2013 holding a student dependent visa. Their son was born in Australia on [date].

27. In the application the applicant indicated he had been born in [Village 1] village, located [distance] from [City 1], Punjab state. From age four he resided in [City 1] to December 2011 when he was married; he then resided in Chandigarh on return trips to India. He is fluent in Punjabi and Hindi.

28. In the application (Part D) the second-named applicant indicated she was born in [City 1]. She speaks, reads and writes Punjabi and Hindi, and reads and writes English.

29. The delegate’s decision (a copy was provided to the Tribunal by the applicants) shows that at interview the applicant stated that his wife resided in Chandigarh with his [Relative A] and [her family] from shortly after the time they were married until she left India. She resided in Chandigarh because of fear of her family in [City 1].

30. At hearing the applicant stated he continues to live with and financially support his wife and son. He has no family in Australia and has only friends. His parents and a brother reside in the home village, and [a Relative A] and [her family] reside in Chandigarh. His wife’s mother is deceased, and her other family continue to reside in India. He was [an occupation 1] from 2009 to 2018 and then became [a related occupation]. His wife does not work, and the son goes to school. He is fluent in Punjabi and Hindi and can speak and understand English. He is a practising Sikh.

31. At hearing the second-named applicant stated she has no communication with anyone in India. She stays at home as a housewife. She and the son are practising Sikhs: she reads the Holy Book every night and goes to the Temple. In Australia she has friends who are Sikh wives of her husband’s male friends.

    Summary of claims

32. The applicants claim that:

    • The applicants married in India without their respective families’ permission [in] December 2011.
    • They are Sikh and the second-named applicant’s family objected to the marriage because they are from the same village/gotra. They fear serious harm from all members of the second-named applicant's family if they return to India.
    • They fear serious harm from the village Elders because of their marriage, being a couple from the same village/gotra. The police would not protect them in the village.
    • The second-named applicant's [Relative B] is a former police officer and former panchayat leader and [another relative] is a nambardar (village leader). [Another relative] is a former police officer. They are influential villagers.
    • During a trip to India the applicant and his brother were attacked by the wife’s family members at a temple in [City 1]. There was also a separate attack by members of his wife’s family [in] January 2013.
    • In 2013 her family registered with the police a false case against the applicant’s brother. This has been resolved after the police asked that the case be settled.
    • The applicant sought protection for himself and wife with [Authority 1] and the Punjab Police (January 2012). That is now in the past.
    • They are unable to relocate to another part of India because they would be unable to access mental health services and domestic violence services. They would be unable to get employment. The stigma surrounding the same village/gotra marriage would mean they would face harm throughout India. The second-named applicant lacks additional language skills.

33. A post-hearing submission dated 21 July 2022 submitted in relation to relocation(verbatim with names deleted):

    ·The stigma surrounding inter gotra marriages is India wide, with there being no safe province or part of the country where it is socially accepted. It is not possible for the Applicants to relocate safely, as there is the risk of harm once it is known that they have an inter gotra marriage.

    ·It is entirely unreasonable to expect Mr * to relocate to a different city, given he clear need for ongoing mental health treatment. This not only will lead to an increase in his anxiety and depression but it is extremely doubtful that he will be able to find suitable employment given his is from the Sikh minority, will be unable to rely on Sikh networks (sue to fear of persecution), will be unable to rely on family support and will have limited access to the types of mental health services and treatment he requires. This in turn will negatively impact his entire family both financially and emotionally.

    ·It is unreasonable for Ms * to relocate to India where there are a lack of domestic violence supports available to her. This is particularly the case given the isolation that both Mr * and Ms * will be subject to if returning to India away from the Punjab. This isolation is likely to trigger Mr *, result in him being unable to work, obtain treatment and thus cause significant harm to all applicants.

    ·Ms * instructs that she only speak Punjabi, a language only spoken in the Punjab province in India. Should Mr * and Ms * attempt to relocate to a different area in India, she would not be able to speak the language. This would be particularly harmful, should Mr * struggle again with his mental health due to the lack of mental health support and not be able to gain employment. This could lead to further domestic violence incidences due to Mr *’s mental health. It is not reasonable to expect Ms * to become the sole breadwinner where she is not able to communicate. In addition, it is not reasonable to expect Ms * to relocate to an area where should there be further domestic violence, she will be unable to access supports or protection due to the language barrier.

    Evidence

34. The evidence before the Tribunal includes the following material (not all is listed):

    ·The applicants’ Protection visa application form lodged on 28 August 2013, that includes reasons for seeking protection in Australia

    ·Passport pages

    ·The Protection visa decision record (‘delegate’s decision’) dated 3 July 2014, that is the subject of this review

    • The application for review, that has attached to it a copy of the delegate’s decision
    • Submissions, including submission dated 21 June 2022 and post-hearing submission of 21 July 2022
    • Statements, Medical reports, photos
    • Psychological report of 15 July 2022
    • Country information including the country information and sources referred to and cited by the applicants and their representatives

35. The applicants appeared before the Tribunal to give evidence and present arguments, on 24 June 2022. The hearing was conducted with the assistance of an accredited interpreter in the Punjabi and English languages. The applicants stated they understood the interpreter, and during the hearing they did not tell me they had any difficulties with the interpretation. The applicant also appeared to understand English and at times spoke in English.

36. The submission of 21 June 2022 stated the applicant has been receiving ongoing mental health treatment for anxiety and depression. At the start of the hearing I asked whether he was well and able to talk about his claims, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. The representative who was present at the hearing did not submit that the applicant had any difficulties at the hearing. I assess that both applicants had been competent to give evidence and had a full opportunity to put forward their claims and arguments.

    Country information

37. As discussed at hearing, I acknowledge that there are difficulties in relocating interstate in India. The DFAT report India December 2020 discussed the difficulties and stated in part:

    Limits to Internal Relocation

    5.31 According to the World Bank, factors that may limit interstate relocation include non-portability of entitlements, preferential norms in educational institutions, and domicile requirements for state government jobs. Other factors, some historical, that limit mobility/interstate migration include: the prevalence of the caste system; traditional values; the diversity of language and culture; exploitation and political exclusion; lack of education; limited access to financial services and resources; and predominance of agriculture and semi-feudal land relations in India. 5.32 Inability to access social protection is a further deterrent. In practice, difficulties in procuring registration documents including proof of residency and legal tenancy can restrict internal migrants’ access to public services including health and education and social security programs. These difficulties include complicated regulations and administrative requirements, and act as a disincentive, especially for temporary and seasonal migrants. Such people often face barriers in obtaining subsidised food and housing until they can establish identity and local residence. 5.33 The absence of informal social networks that would normally assist with accommodation, employment and informal social protection may also limit relocation. Where local language and culture is different from region of origin, Indian nationals may also face harassment and political exclusion. Multiple sources told DFAT relocation in India is not straightforward, and many cultural, socio-economic and gender-based obstacles, in addition to language differences, prevail. 

    …

    5.38 DFAT assesses individuals seeking protection from discrimination or violence may be able to access internal relocation options, although these may be more limited for some individuals depending on their personal circumstances. In particular, DFAT assesses women, including single women with children or those fleeing family violence, have limited access to internal relocation options.

1. Despite difficulties in relocating interstate in India, as discussed at hearing country information shows that relocation within India is feasible. A January 2006 IRBC report which provides information on issues that Sikhs may face in relation to language, housing, residence, employment, health care, and education. Although this assessment was made in early 2006, various subsequent reports by different government agencies continue to refer to this report, and country information does not indicate any major changes since that report. The report India: Ability of Sikhs to relocate within India; issues to be considered when relocating; safety concerns; treatment by authorities (March 2005 - December 2005), 18 January 2006, states in part (with significant sentences bolded):

   Although the majority of Sikhs in India reside in Punjab state (Specialist on Indian Affairs 23 Nov. 2005; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005; Laws and Iacopino 2002, 195; BBC 16 Mar. 2005), there are many Sikh communities in India located outside of Punjab state (Specialist on Indian Affairs 23 Nov. 2005; Professor of Asian Studies 14 Nov. 2005; ENSAAF 3 Oct. 2005; Associate Professor of Social and Cultural Anthropology 3 Nov. 2005; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005; MAR n.d.a; WSO n.d.). 

   In correspondence to the Research Directorate, a specialist in Indian affairs reported that Sikhs are located in every state in India, and in 579 districts out of a total of 593 districts (23 Nov. 2005).  After Punjab state, the next greatest numbers of Sikhs reside in northern Haryana state (1,170,662 persons), northern Rajasthan state (818,420 persons), north central Uttar Pradesh state (678,059 persons), northern Delhi union territory (555,602 persons), northern Jammu and Kashmir state (207,154), central Maharashtra state (215,837 persons), north central Uttaranchal state (212, 025 persons) and central Madhya Pradesh state (150,772 persons) (ibid.).  Statistics on the Sikh population in India received by the Research Directorate from the World Sikh Organization (WSO), which are drawn from the results of the 2001 Indian census, corroborate the information that most Sikhs live in the states cited above by the specialist in Indian affairs, though the numbers of Sikhs reported by WSO are slightly lower in each state, except for Jammu and Kashmir state, in which the number of Sikhs is considerably higher at 500,000 people (WSO n.d.).  Minorities at Risk, a University of Maryland research project that monitors and analyzes ethnic conflict worldwide (MAR n.d.b), also indicates the presence of Sikhs in the capital Delhi, as do news articles (MAR n.d.a; PTI 27 Aug. 2004; BBC 16 Mar. 2005).  A professor of Asian studies, with extensive experience in India, commented in a telephone interview with the Research Directorate that Sikh communities are "doing quite well" in various states in India and that they consider these places their home (14 Nov. 2005).

   Citizens are not required to register their faith in India (Country Reports 2003 25 Feb. 2004, Sec. 2c).  Several oral sources consulted for this response commented that Sikhs are able to practise their religion without restriction in every state of India (Specialist on Indian Affairs 23 Nov. 2005; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005; VFF 23 Oct. 2005).  The central Indian government recognizes Sikhs as one of five religious minority groups and as such, Sikhs are provided access to "various Constitutional guarantees" for the protection of the rights of religious minorities (UN 3 Nov. 2005). …

   Feasibility of Safe Relocation within India

   The Indian Constitution allows for freedom of movement of citizens, which, according to Country Reports 2004, was generally respected in practice in 2004 (Country Reports 2004 25 Feb. 2003, Sec. 2d).  According to the human rights activist referred to above, "[t]heoretically, Sikhs can, like others, move and relocate themselves in any part of India that does not come under excluded or restricted zones like some parts in the northeast of India" (Human Rights Activist 24 May 2005).  This information was corroborated by the UK Immigration and Nationality Directorate, which stated in September 2005 that "there exists the option for those who encounter difficulties to seek national protection or to relocate internally ... " (Art. 3.8.8).  However, the same report also concluded that "for single women who do not relocate as part of a family unit relocation may be difficult and unduly harsh" (UK Sept. 2005, Art. 3.8.6).  In addition, "[for Sikhs] fearing ill-treatment/persecution by the state authorities relocation to a different area of the country to escape this threat is not feasible" (ibid., Art. 3.7.8).  Similarly, ENSAAF, a California-based non-profit organization that "fights impunity for human rights abuses in India", stated in a letter entitled "No Safe Haven: The Myth of the Internal Flight Alternative in India for Returned Sikh Asylum Seekers," written on 24 January 2005, that

   Sikh survivors of human rights abuse cannot live safely or securely in any part of India ... [due to] ... government protection for perpetrators of human rights abuses in Punjab and India; the perception of a revival of militancy in Punjab; the continuation of abuses perpetrated by security forces in India; and the ability and willingness of security and intelligence agencies to track down Sikhs who have relocated to other parts of India, outside of Punjab (1).

   This letter can be accessed at *, although it should be noted that most of the information contained in the letter is based on incidents that occurred in the 1990s (ENSAAF 24 Jan. 2005).

   In contrast, the UK Immigration and Nationality Directorate stated in September 2005 that " ... where the fear is of local police and the individual is not of interest to the central [Indian] authorities internal relocation is feasible and not unduly harsh" (UK Sept. 2005, Art. 3.7.8). 

   Police Treatment of Relocated Sikhs

   Article 48 of the Indian Code of Criminal Procedure reads as follows: "A police officer may, for the purpose of arresting without warrant any person whom he is authorized to arrest, pursue such person into any place in India" (India 25 Jan. 1974).  The Central Reserve Police Force, a paramilitary force of India (AHRC 25 Jan. 2005), may be summoned to any state of India to help "maintain law and order and contain insurgency," as well as "various police duties," such as crowd control and protection of officials (India n.d.b).  No information could be found on cooperation between Indian state police forces to apprehend wanted individuals among the sources consulted by the Research Directorate.

   This power of police officers notwithstanding, a professor of Asian studies commented that in pursuing a wanted individual, it is unlikely that the central Indian authorities will attempt to locate the person in another state, and that this is the case with Sikhs (14 Nov. 2005).

   This professor added that such pursuits have more to do with the profile of the individual than with the faith the individual subscribes to (ibid.).  The human rights activist referred to above informed the Research Directorate that he was not aware of any police sweeps or searches of Sikhs in India on the basis of their religion (24 May 2005). 

   This human rights activist also noted that "persons without sufficient financial means and social clout would mainly be the victims [of suspicions]" (Human Rights Activist 24 May 2005).  Similarly, geographer Craig Jeffrey concluded in his study on networks of the citizenry and the police in India that those persons with relatives in the police force are able to "perpetuat[e] their economic and social advantage" (Jeffrey 2000, 1013). 

   Documentation Issues at New Place of Residence

   According to ENSAAF, Sikhs who have relocated to other areas in India could attract the attention of the authorities through their applications for documentation such as ration cards (ENSAAF 24 Jan. 2005, 17).  ENSAAF explained that

   [t]hose who utilize state resources ... come to the attention of local security forces.  For example, to apply for a ration card, entitling the owner to subsidized prices for foods, kerosene and other materials, one has to cancel any previous card obtained at another address by informing the Directorate of Food and Civil Supply. ... Local authorities may verify whether the former ration card has been cancelled (ibid., 17-18).

   Further information on documentation issues for Sikhs in areas of India outside of Punjab state could not be found among the sources consulted by the Research Directorate.

   Language Issues at New Place of Residence

   The official language of India is Hindi and is spoken by approximately thirty per cent of the population as a first language (UK Apr. 2003, 2.4).  The Sikh language is Punjabi (Minahan 1996, 299), which closely resembles Hindi (ibid.; UK Apr. 2003, 2.4).  Punjabi is also spoken by Hindus and Muslims living in Punjab state (MAR n.d.b). 

   In addition to Hindi and Punjabi, there are another 42 languages, 720 dialects and 23 tribal languages spoken in India (UK Apr. 2003, 2.4).

   Opinion differs on whether Sikhs would be linguistically understood in states of India other than Punjab.  While some sources indicate most Sikhs would be understood in all other states (Lawyer 27 Oct. 2005) since they would be able to understand Hindi, Urdu (Specialist on Indian Affairs 23 Nov. 2005) or English (Professor of Asian Studies 14 Nov. 2005), others contend that Sikhs would be understood only in certain areas of India (Associate Professor of Social and Cultural Anthropology 3 Nov. 2005; ENSAAF 29 Oct. 2005).  According to the general secretary of the Delhi-based People's Union for Civil Liberties, if the individual in question speaks only Punjabi then he or she would be understood only in the northern and eastern parts of India (PUCL 30 Oct. 2005).  Otherwise this individual would have to learn the local language (Professor of Asian Studies 14 Nov. 2005; ENSAAF 29 Oct. 2005).

   Housing Issues at New Place of Residence

   Two sources indicated that the main factor limiting access to housing in India is the financial situation, rather than the religion, of an individual (Specialist on Indian Affairs 23 Nov. 2005; Associate Professor of Social and Cultural Anthropology 3 Nov. 2005).  Therefore, to whatever extent they can afford it, Sikhs have unlimited access to housing in localities outside of Punjab state (Professor of Asian Studies 14 Nov. 2005; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005).  A specialist in Indian affairs explained that

   [t]he greatest discrimination in housing experienced by religious minorities is faced by the Muslim population, not the Sikh population. ... Housing for those in middle classes and above is often organized by "societies" which are essentially housing co-ops, or buildings rented or sold to members of a single community.  Since Hindu "societies" form the vast majority of these housing projects, it is instructive to note that usually Hindu housing societies will accept sales/rentals to Jains, Christians, Parsis, and Sikhs, but will not allow Muslim families to rent or buy flats or apartments.  There may be isolated instances of discrimination against Sikhs in terms of housing, but [it] is certainly not a common occurrence ... . (Specialist on Indian Affairs 23 Nov. 2005).

   In 12 January 2006 correspondence to the Research Directorate, a representative of WSO explained that according to state laws, citizens may buy agricultural land only in their state of residence, except for Punjab state, where Indian citizens residing in any Indian state may purchase agricultural land.  This representative continued that "the application of [this law] is mainly used against Sikhs and other religious minorities" (WSO 12 Jan. 2006).  Further information on this issue could not be found among the sources consulted by the Research Directorate.

   Residence Registration at New Place of Residence

   Sikhs relocating from Punjab state to other parts of India do not have to register with the police in their area of relocation (ibid.; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005; Human Rights Activist 24 May 2005), unless they are on parole (Associate Professor of Social and Cultural Anthropology 3 Nov. 2005).  One 2005 media report stated that Delhi police required landlords to furnish information about their tenants as part of a tenant verification drive in the city (The Tribune 27 July 2005).

   Employment Issues at New Place of Residence

   Upon relocation to an area in India outside of Punjab state, several sources commented Sikhs would have indiscriminate access to employment (Professor of Asian Studies 14 Nov. 2005; PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005), although this would depend on their skills level (Associate Professor of Social and Cultural Anthropology 3 Nov. 2005).  A specialist in Indian affairs commented that although Sikhs are employed in the government, the police, universities, government corporations and the business community, "there may be isolated instances where an individual feels discriminated against [in searching for employment], and in local communities there are tendencies for firms to employ locally-born and educated people" (Specialist on Indian Affairs 23 Nov. 2005).

   Health Care Issues at New Place of Residence

   Several sources indicate that Sikhs would have indiscriminate access to health care in states outside of Punjab (Professor of Asian Studies 14 Nov. 2005; Lawyer 27 Oct. 2005; VFF 23 Oct. 2005), though access depends mainly on the financial situation of the individual (Associate Professor of Social and Cultural Anthropology 3 Nov. 2005; Professor of Asian Studies 14 Nov. 2005; WSO 5 Jan. 2006; Specialist on Indian Affairs 23 Nov. 2005) and the proximity of the individual's residence to an urban location (ibid.).  The specialist on Indian affairs explained that

   [i]n India access to health care depends on income.  All health care is privately accessed.  One can attend a government hospital for free medical consultation and surgical procedures but the waiting times are long and attention in many places [is] inadequate.  In almost every government hospital patients have to pay for the cost of drugs, surgical dressings, and provide food to family members in hospital.  As a result, those who can afford it obtain private health care. ... [T]he primary obstacle to obtaining good health care is lack of income and the remoteness of many rural communities from good hospital facilities (Specialist on Indian Affairs 23 Nov. 2005).

   Education Issues at New Place of Residence

   Two sources indicate that Sikhs would have access to education in Indian states outside of Punjab upon relocation (PUCL 30 Oct. 2005; Lawyer 27 Oct. 2005), though Sikhs are not eligible for any affirmative action programs related to education (Specialist on Indian Affairs 23 Nov. 2005).  Poverty is the main obstacle to accessing education in India (ibid.; WSO 5 Jan. 2006); in addition, the proximity of the individual's residence to an urban area has an effect on the availability of education since elementary schools in rural areas are "inadequate" (Specialist on Indian Affairs 23 Nov. 2005). 

   Assessment of claims: credibility

2. The applicants claim to be nationals of India. I have sighted a copy of the applicant’s Indian passport, Indian marriage certificate, and Indian documents concerning the applicants. All the available evidence, including the applicants’ oral evidence and familiarity with India, supports their claim to be Indian nationals. India is therefore the country of reference for the purpose of assessing the applicants’ protection claims, and the receiving country when assessing their claims against the complementary protection grounds.

3. At hearing the applicant stated the child had been registered with the Indian authorities as an Indian citizen and he has an Indian passport that is now expired.

4. In India the applicants were born in [Village 1], located a few kilometres from [City 1], Punjab state. Then from age 4 the applicant lived in [City 1] until April 2009 when he first entered Australia. Following the marriage [in] December 2011 in or close to Chandigarh, the second-named applicant moved to Chandigarh to live with the applicant’s relatives, and the applicant also stayed in Chandigarh on his return trips to India: December 2011 to [February] 2012, October 2012 to February 2013 and April to July 2013.

5. The applicant is of [Caste 1] and the second-named applicant of [Caste 2]. Both castes are [Sikhs].

   The applicant’s medical condition

6. The applicant’s medical condition and mental health are central to his protection claims. I have therefore considered his medical and mental health conditions now and in the reasonably foreseeable future.

7. The applicant provided past medical documents including as summarised:

   ·Psychologist letter of 16 August 2015. The applicant was referred with anxiety and depression. He had attended treatment and responded favourably. “Currently, his condition is stable and he is continuing with treatment as required”.

   ·[Clinic 1] statement of 14/8/2015. The applicant is a regular patient at the clinic since September 2013. He is suffering from anxiety and depression since November 2013. He is on regular psychotherapy by [Doctor A] since 2013 ‘with very good response’. He commenced medication but as he ‘had very good response to treatment’ he was not put on medication. Currently he is stable.

   ·[Clinic 1] statement of 4/12/2014. The applicant presents with depression and anxiety.

   ·[Clinic 1] statement of 21/11/2013. The applicant presents with depression and anxiety. Prescribed Coversyl (treats high blood pressure).

8. In another Tribunal review 1924848 the applicant’s evidence was that he had attended a [program] conducted by the Family Violence Intervention Program. He had attended and completed 20 weekly sessions. At my hearing he agreed that he had been referred to [Health Service 1].

9. The submission of 21 June 2022 stated the applicant has been receiving ongoing mental health treatment for anxiety and depression. It submitted ‘Therefore his mental health is likely to deteriorate if he is unable to receive the treatment he requires. This is likely to be further exacerbated by being isolated and being unable to secure strong financial support for his family.’

10. A Psychological report dated 15 July 2022 from a clinical psychologist, [at Health Service 1] stated that the applicant had been referred to them on 9 August 2019 for the treatment of his anxiety and depression. He had consultations through Medicare: 5 in 2019; 1 in 2020; 8 in 2021; 3 in 2022 to July. The applicant reports he first experienced difficulties with anxiety and depression in about 2015. He continues to take Lexapro. Since about 2013 he has developed an alcohol dependency. The report’s summary states:

    Mr. * continues to experience stress due to ongoing stressors, including his immigration matter, and his earlier, although now resolved, legal issues regarding an incident of family violence.
    He also reported an ongoing fear of returning to India due to his fear of physical retribution for marrying his wife from his village that was not sanctioned by his family or his wife's family, which is considered an inappropriate relationship in his community.
    Additionally, he is worried about his brother who is seriously ill.
    He appears to attempt to cope with his emotional distress through his use of alcohol. This alcohol dependency has been persistent over time.
    His continued emotional and physical dependency on alcohol has probably undermined psychological and psychopharmacological treatment of his condition. For treatment to be effective with Mr. *, he will need to stop, or reduce his consumption of alcohol.
    Mr. * reported that he has been referred recently to a drug and alcohol counsellor and that he is awaiting an appointment. This treatment will facilitate his ongoing psychological and psychopharmacological treatment that he has been utilising already. He is showing a commitment to wanting to get better.
    Mr. * will require ongoing treatment to help him cope effectively with his stressors and with his continued alcohol consumption, which is problematic for him. This will be required for him to improve his mental health. He believes that he would not [have] the same level of access to treatment in India.
    I am not aware of how the Indian health system functions in comparison to the Australian system, but I am aware that Mr. *, while living in Australia, has benefited from access to Medicare and the Pharmaceutical Benefits Scheme that allows him to access treatment with very little financial cost.
    All his sessions with me have been bulk-billed under the Medicare Better Access to Psychologists Scheme, so that he did not have any out-of-pocket expenses.
    It is possible that he may have trouble accessing the same level of mental health care in India, due to there being no similar government funding of mental health services and treatment.
    His mental health may obviously deteriorate if access to services in India are unavailable to him.

1. Based on the medical evidence before me I accept the applicant has medical and mental health problems in Australia that include anxiety and emotional distress, and alcohol dependency, as discussed and summarised in the psychological report dated 15 July 2022. He takes some medication such as Lexapro. He would require ongoing psychological and psychopharmacological treatment to help him cope effectively with his stressors and with his continued alcohol consumption. His mental health would deteriorate if access to services in India are unavailable to him.

   The applicants’ marriage and the enmity of the second-named applicant’s family

2. I accept that the second-named applicant’s family originate from the applicants’ home village of [Village 1], located close to [City 1], a small town in Punjab state. I accept that some of her family members are former policemen, a former panchayat leader, and a village leader (nambardar).

3. I accept that the applicants are Sikhs and they married in India without their respective families’ permission [in] December 2011. The marriage was solemnised as per Sikh rites and ceremonies at [Location 1], which appears to be near Chandigarh city.

4. I accept that the applicant’s family subsequently accepted the marriage and assisted the applicants while they were in India, and also assisted the second-named applicant with her student visa application. The applicant has been in contact with his family in India since he came to Australia.

5. I accept that the second-named applicant’s family object to the marriage undertaken without their permission because the applicants have engaged in a same village/gotra marriage. The applicants have not had contact with that family in India.

6. I accept that the applicant sought to obtain and obtained state protection through [Authority 1] at Chandigarh.

7. I accept that he, and his brother, had been attacked but not seriously harmed by the second-applicant’s family in 2013 when the applicant was visiting his parents. The applicant made a report to the police and a relative of the wife made a counter claim with the police. He also produced a copy of a ‘Common (Panchayat) Compromise’ dated [in] January 2013 that shows the police organised a signed compromise between the families. Thereafter the applicant took the second-named applicant to Chandigarh to stay with his relatives.

8. At my hearing the applicant stated that family had lodged a false case against his brother saying the brother was targeting their family. However, the applicant gave some money to the police, so they went to the village elders and said you need to settle this case here and now without affecting the community’s dignity. The police also told his brother to settle the matter and not take it further.

   Conclusion

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

10. First, I am satisfied the applicants will be able to travel to and enter India. The applicant has a current Indian passport valid to [2028]. At my hearing he stated the second-named applicant has a valid passport. Their child had an Indian passport that expired [in] 2022. The applicants are Indian nationals with current and expired passports and would be easily able to renew an expired passport.

11. As discussed at hearing, the applicants departed India legally on genuine Indian passports and would be able to return to and enter India, with their child, without difficulties. They have not committed crimes in India and the Indian authorities would be unaware of their activities in Australia. As discussed at hearing, the DFAT report India December 2020 shows that returnees including failed asylum seekers do not face mistreatment on returning to India. My comments were based on the report that stated in part:

    5.39 DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. India does not have a centralised registration system in place to enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories. The Department of Home Affairs is required to notify Indian authorities prior to the arrival of escorted removals from Australia but does not track returnees after their arrival in India. Home Affairs does not routinely notify Indian authorities of unescorted returns and removals. UK Home Office reporting notes tracking and surveillance systems appear limited.

12. Second, in light of the material before the Tribunal that includes the applicants’ evidence given to the delegate, to Tribunal 1, and at my hearing, and in light of country information about the Sikh tradition that people of the same gotra/village may not marry, I cannot discount the possibility that if the applicants returned to their home area in the reasonably foreseeable future, they would again attract the adverse attention of the second-applicant’s family and their supporters. This possibility is reinforced by the way in which the second-named applicant married against her families wishes.

13. Third, the applicant discounts the possibility of police assistance in the home area should they return, and he claims the police would not act against the wishes of the village elders. But when the past incidents happened, the local police did become involved and ostensibly calmed the situation as shown by the ‘Common (Panchayat) Compromise’ in January 2013, and shown in the way the police defused the case involving the applicant’s brother. I consider that if the applicants returned to their home area they would be able to seek state protection from the local police as they had done in the past. I find that there is not a real chance that the applicants face serious harm amounting to persecution if they return to their home village in Punjab state now and in the reasonably foreseeable future.

14. Fourth, in light of the applicant’s claims that he fears to return to the village area in India, I next considered whether the applicants could reasonably live somewhere-else where they would not come across the second-applicant’s family. The applicants are a mature family in the prime of life: the applicant is [age], the second-named applicant is [age], and their child is [age]. I find that after they married the applicants had in fact moved away from the village/home area and moved to reside in Chandigarh. Following the marriage [in] December 2011 the second-named applicant moved to Chandigarh to live with the applicant’s relatives until she departed India and entered Australia [in] July 2013. The applicant also stayed for lengthy periods in Chandigarh on his return trips to India: December 2011 to [February] 2012, October 2012 to February 2013 and April to July 2013. The incidents after the marriage all occurred in the home area of [City 1] and in fact led to police involvement in [City 1]. But they lived without incident In Chandigarh where they had family support and accommodation provided by [a Relative A]. The second-named applicant’s family did not locate them in Chandigarh in the lengthy period from December 2011 to July 2013.

15. At my hearing I put to the applicant that he had [a Relative A] in Chandigarh and that they had the option to live again with the [Relative A]. The applicant responded that it is safe for [Relative A] there; the [Relative A] did help them in the past and he gave her some money. He added that when his wife went there to live they had to hide her identity, and they said she was his sister’s friend; his wife isolated herself and never went out. However, the delegate’s decision at page 22 (provided to the Tribunal by the applicants) shows that at the delegate’s interview the applicant was asked whether his wife had any issues staying in Chandigarh during periods when he was not present, and he responded that she became bored from staying home most of the time. He had asked her to stay home because he was worried her relatives would find out she was there. But he also stated that when she did go out, she disclosed the nature of her marriage to people in the community where she was staying, and this did not cause her any problems aside from being bored.

16. I find that the applicants are able to reasonably return to Chandigarh where the second-named applicant lived from December 2011 to July 2013 without incident, and where the applicant lived for lengthy periods when he travelled from Australia. While the second-named applicant initially stayed home, the applicant’s evidence is that she did leave the home and had conversations with locals. I find that on return to Chandigarh she would not be confined to home and would be able to move about the local community. I find that in Chandigarh the applicants would be distant from the second-named applicant’s family. I find that in Chandigarh there is not a real chance of serious harm to any of the applicants in the reasonably foreseeable future.

17. The past assistance given by the [Relative A] and relatives in Chandigarh shows that family support would reasonably be readily available there in some form. The family support there enabled them to live securely in Chandigarh over 10 years ago, and reasonably would be available to again assist them as they adjust from having lived in Australia.  

18. The applicant would have to get work in order to financially support his family. This would be greatly helped by his familiarity with Chandigarh and with local family support available. The applicants are Indian nationals who resided in India during their formative years and for most of their lives. The applicant knows Punjabi, Hindi and English, and the second-named applicant speaks, reads and writes Punjabi and Hindi, and reads and writes English. The applicant has qualifications. In Australia he successfully completed: an English course; [and specified vocational courses] (2017). He has work experience as [an occupation 1 related worker]. He has high level qualifications and a good knowledge of English that would reasonably provide him with skills to seek and get a range of jobs and work in Chandigarh. The applicant travelled to Australia as a student and he had the personal skills to be able to find accommodation and work in a foreign and unfamiliar country, and to live independently from his family in India. He was then able to create a home for his wife, first in Chandigarh and then in Australia when she travelled to Australia, and subsequently for the child. They have had the skills to support themselves in Australia, and they would reasonably have the same skills to find accommodation and work when they return to Chandigarh.

19. At my hearing and in submissions the applicants submitted that because of their marriage they would be shunned by all Sikhs and would be unable to practise their religion in India. However, I do not accept this submission. The applicants solemnised their marriage “as per Sikh rites and ceremonies at [Location 1]”. Accordingly, they were able to marry in a full Sikh ceremony in India. After the marriage, the applicants were then able to reside in Chandigarh for a lengthy period. The applicant’s family subsequently accepted the marriage and supported the applicants in the disputes with the second-named applicant’s family. In Australia the applicants practice their religion. The second-named applicant stated at my hearing that she and the son are practising Sikhs: she reads the Holy Book every night and goes to the Temple. In Australia she has friends who are Sikh wives of her husband’s male friends. I consider that in Chandigarh the applicants may be shunned by some Sikhs but reasonably would not by shunned by all Sikhs.

20. In my foregoing findings I accept the applicant has medical and mental health problems that include anxiety and emotional distress, and alcohol dependency, as discussed and summarised in the psychological report dated 15 July 2022. He takes some medication such as Lexapro. He would require ongoing psychological and psychopharmacological treatment to help him cope effectively with his stressors and with his continued alcohol consumption. His mental health would deteriorate if access to services in India are unavailable to him.

21. As discussed at hearing, country information shows that mental health care is accessible in India albeit it is located overwhelmingly in urban cities and large towns. A google search shows there are a well-regarded psychiatric hospitals in India[1]. Country information shows that India has faced problems during the covid pandemic in providing health services. Nonetheless, the Indian government is seeking to allocate more resources to mental health including supporting wellness centres, setting up of integrated public health labs, and critical care hospital blocks in districts with a population of more than 5 lakh, and a roll-out of the national tele-mental health programme. A report in The Indian Express, Union Budget 2022: Fighting Covid stress, mental health strain on priority list, 2 February 2022, states in part:

    [1] Mediniz article, Top 20 psychiatric hospitals in India, [ rollout comes in the backdrop of growing scientific evidence that shows mental health sequels post Covid-19 infection. As India enters the third year in its fight against the global pandemic, the focus of the public health sector will be to further strengthen the health systems at levels of primary, secondary and tertiary in responding effectively to the future wave of infections.

    In 2022-23, the Budget estimate for the health sector is Rs 86,200.65 crore — a 16.59% increase compared to 2021-22 Budget estimate. Besides augmenting the health infrastructure, the government has also placed its priority on another critical issue related to the pandemic: mental health.
    This year’s Budget will take forward the announcements made last year in the backdrop of the strain on health systems experienced during the pandemic.

    In her last Budget speech, Finance Minister Nirmala Sitharaman made the big announcement on the launch of Atmanirbhar Swasth Bharat Yojana scheme, now renamed Pradhan Mantri Ayushman Bharat Health Infrastructure Mission (PMABHIM), with an outlay of Rs 64,180 crore over six years. This year, the government will transfer Rs 4,176.84 crore to the states — to be utilised to support wellness centres, setting up of integrated public health labs, and critical care hospital blocks in districts with a population of more than 5 lakh.

    The allocation is a significant increase: under revised Budget estimates for 2021-22, only Rs 595 crore was allocated under this scheme, compared to Rs 4,176.84 crore this year.
    With Covid-19 negatively affecting mental health and triggering an exponential rise in mental health issues among vulnerable population groups, the government announced the roll-out of the national tele-mental health programme.
    The development comes in the backdrop of growing scientific evidence that mental health sequels post-coronavirus infection. During the pandemic, patients have been reporting anxiety and depression, as well as ‘Long Covid’, where recovered patients experience brain fog and are not able to think clearly. Patients also show neurological symptoms.

    The third big focus of the Budget has been on digital health.
    In her Budget speech. Sitharaman announced the roll-out of an open platform for the national health ecosystem. She said the digital ecosystem will comprise an exhaustive list of digital registries of health providers and health facilities, unique health identity, consent framework and universal access to health facilities.
    Significantly, the national digital health mission has been allocated Rs 200 crore, compared to just Rs 30 crore allocated in the previous Budget.

22. That the applicant, on returning to India and to Chandigarh, would be able to access ongoing psychological and psychopharmacological treatment to help him cope effectively with his stressors and with his continued alcohol consumption, is supported by his evidence to Tribunal 1 that he returned to India in 2013 for treatment of his anxiety and stayed in Chandigarh. Medical help and medications would be available in India and in Chandigarh.

23. I accept that the applicant may experience some psychological stress, anxiety and associated symptoms upon his return to India and Chandigarh. But based on available evidence I am not satisfied there is a real risk that he will suffer symptoms any more serious than he has so far shown in Australia, or that he will have suicide ideation or other impairments upon his return. He would return to the familiarity of Chandigarh and with family support available, with further job ready skills gained in Australia through his completed courses and qualifications. I am not satisfied the applicant will have psychiatric disorders that will attract the adverse attention of people in India such that they will seek to harm him. I am not satisfied that because he has some psychological stress, anxiety, alcoholic dependency and associated symptoms upon his return to India, there is a real chance that his future condition will result in him experiencing serious harm or significant harm.

24. In sum, I have considered the applicants’ evidence and claims individually and cumulatively. I accept the applicant has medical and mental health problems that include anxiety and emotional distress, and alcohol dependency, and he may well continue to have these conditions in India. I acknowledge that in Australia he gets a good level of medical care and his condition is stable. But I do not accept that on his return to India he would not have access to medical care and medications that has allowed him to manage the symptoms of all of his medical conditions. I do not accept that he will be unable to personally manage his diet that encompasses less alcohol consumption. I do not accept that he would be unable to seek and get work. I do not accept that his condition would deteriorate such that domestic violence would occur. I do not accept that his fears are well-founded. I find that it is reasonable for the applicant, the second-named applicant, and their son, to return to India and return to Chandigarh.

    Refugee criterion

25. In light of the foregoing assessment, the Tribunal finds that on returning to Chandigarh in India, the applicants do not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons they claim. The Tribunal finds that in India the applicants do not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the Convention reasons either when looked at individually or cumulatively. The Tribunal finds the applicants do not have a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future, if they return to India. The Tribunal finds it is reasonable for the applicants to return to live in Chandigarh.

26. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).

    Complementary protection

27. I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm.

28. I accept the applicants may face dislocation when they return to India as the applicant and second-named applicant have not resided in Chandigarh since last departing in June 2013. But in light of the foregoing discussion and findings, I consider the applicants would be able to make their way in India from the time they arrive. I accept the applicant has some psychological problems as discussed. I accept the applicant would continue to have these problems in India. I acknowledge that in Australia he manages to get a level of medical care, and that- since the period of lockdowns when he had difficulty finding work- his condition is stable on the current medication. But I do not accept that on his return to India he will not have access to medical care and medications that will enable him to manage the symptoms of all of his medical conditions such that he remains working-fit. I do not accept that he will be unable to buy reliable medication. I do not accept that he will be unable to personally manage his diet that includes limiting his alcohol consumption. I do not accept that he will be unable to seek, get and maintain work. I am not satisfied the applicant will have medical conditions and/or psychological disorders that will attract the adverse attention of people in India such that they will harm him.

1. I carefully considered the rights of the child, as he was born in Australia in 2013 and has lived here ever since. I acknowledge that it is preferable for the applicant child to continue to live in the country of his birth. However on the evidence before the Tribunal, I am not satisfied that travelling to Chandigarh in India is attended by a risk of significant harm within the meaning of s 36(2)(aa).

2. In sum, the Tribunal finds there is no real risk that the applicants would be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. The Tribunal is not satisfied that there is a real risk that they would suffer arbitrary deprivation of their life or the death penalty. The Tribunal is not satisfied the applicants would be subject to significant harm for any reason if they are removed/return to India.

   Conclusion

3. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a).

4. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

5. There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).

   DECISION

6. The Tribunal affirms the decision not to grant the applicants Protection visas.

   C. Packer
   Member