1900931 (Refugee) [2023] AATA 3528 (14 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms May Hanna (MARN: 1796869)
CASE NUMBER: 1900931
COUNTRY OF REFERENCE: India
MEMBER:Peter Vlahos
DATE:14 August 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
This Statement was made on 14th August 2023 at 6.41AM.
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – particular social group – mixed religious marriage – marriage to a Pakistani man – single woman – religion – free will conversion to Shia Islam – attack on home – physical assault – fear of killing – anti-conversion laws – return visits to India – Indian and Pakistan citizenship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
SAAD v MIMA [2003] FCAFC 65
SDAQ v MIMA (2003) 129 FCR 137
Selliah v MIMA [1999] FCA 615
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Sundararaj Sivalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51Any 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 Immigration and Border Protection on 15 June 2016 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 30 January 2015. The delegate refused to grant the visa on the basis he was not satisfied that the applicant is a refugee as defined by section 5J(1) of the Act, and nor was he satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk the applicant will suffer significant harm.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 23 February 2023 to give evidence and present arguments. The Tribunal also received no oral evidence from witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review. The legal counsel attended the Tribunal hearing.
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.
‘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.
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.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that the applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgements of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ and Callinan J agreeing.
State Protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
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 issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s Background
The applicant is [an age]-year-old female from the city of Mumbai, province of Maharashtra, India.
The applicant is of the Shia Muslim faith (having converted from being a Hindu upon marriage), is of Indian ethnicity and speaks Marathi, Hindi and English.
The applicant is married with a husband and [specified children] all of whom reside in Pakistan.
The applicant married [in] January 2004 in [Country 1].
The applicant attended and completed [school level] in Mumbai, [between specified years].
The applicant obtained a [Qualification 1] from [a named] College in [year].
From June 1994 to July 1999, the applicant worked in [Industry 1] in Mumbai.
From September 1999 to October 2014 the applicant worked in [Industry 1] in various [business 1s] in [Country 1]. Since November 2014 she claimed she has been without employment.
From September 1999 to October 201, the applicant travelled extensively between Mumbai, [Country 1], [Country 2] and Sialkot in Pakistan.
The applicant returned to India for three weeks in August 2011 and again for a week in October 2014.
The applicant arrived in Australia [in] November 2014 under passport [number], issued [in] 2007 and expiring [in] 2017.
The applicant was granted a subclass 600 Tourist visa on 23 October 2014 which expired on 3 February 2015
The applicant applied for a protection visa on 30 January 2015.
The Applicant’s Department File
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision.
The Applicant’s claims for Protection
The applicant made the following claims which are summarised as follows:
§The applicant left India to work in [Country 1] where she met and married her husband.
§The applicant claims she converted to Shia Islam when she married her Pakistani husband.
§The applicant claims her husband lost his work in [Country 1] in 2013 and was forced to return to Pakistan with their [specified children].
§The applicant claims that she cannot live in Pakistan as she will be persecuted there.
§The applicant claims that she and her husband cannot live in India because she converted from Hinduism to Shia Islam. She claims she has received threats on her life from family members and it is also unacceptable for an Indian woman to marry a Pakistani man.
§The applicant claims that her husband and children can never become Indian nationals and she can never become a Pakistani national.
§The applicant claims that every time she visited her family in Pakistan, she received threats from local religious groups and their neighbours in Pakistan are completely against their marriage.
§The applicant claims that if she returns to India she will be killed by her own family or members of the community who know that she is a Muslin convert and married to a Pakistani man.
§The applicant claims that on her last visit to Pakistan a group of armed men fired shots at their house, and they received threats by mail and via telephone.
§The applicant claims that on every visit to Pakistan she was interrogated and harassed by the security office and officers from the local police station as to the reason for her visit.
§The applicant claims that her husband went to the police in Pakistan seeking assistance, but they refused to help.
§The applicant claims that they relocated to Lahore but again the authorities were unhelpful, and her visa stated that she would be living in a different city so she went back to [Country 1].
§The applicant claims that the Pakistani police continuously ask her husband where she is.
§The applicant claims there is no state protection in India.
§The applicant claims that she cannot relocate in India as members of her family are involved in politics and have influence on the local police who could locate her. The applicant claims that whenever she goes people would know she is a Muslim convert.
§The applicant claims that Shia are a minority in Pakistan and oppressed by the Sunni.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal has before it a range of material, including the following relevant documents:
·The applicant’s protection visa application Form completed and signed on 29 January 2015, lodged on 30 January 2015 (“visa application”);
·The applicant’s identity documents being a certified copy of a (India) Passport;
·The protection visa decision record (“delegate’s decision record”) of 16 June 2016;
·The review application Form which included a copy of the delegate’s decision record;
·Documents provided to the Tribunal on the Tribunal’s file;
·Country information from the applicant’s submissions and other sources discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) most recent Country Information Report on India, published on 15 July 2015.
Country of reference/receiving country
The applicant claims to be an Indian national. Based on a copy of her passport provided to the Department of Home Affairs (the Department) by the applicant, the Tribunal finds that India is her country of nationality and also her receiving country for the purposes of s. 5(1) and s. 36(2)(aa) of the Act.
The applicant lived and work in [Country 1] from 1999 to 2014. Country information states that dual citizenship is not permitted in [Country 1]. As the applicant arrived in Australia on a Indian-issued passport, it is apparent that she does not have [Country 1] citizenship, and has no right to it. The applicant has also confirmed she has no current visa to allow her to enter [Country 1].
The applicant is married to a Pakistani national. However, Pakistan does not allow dual citizenship. Whilst the applicant could renounce her Indian nationality in order to seek Pakistani citizenship, this does not amount to an existing right to enter and reside in Pakistan. The applicant has no current visa to travel to Pakistan.
The Tribunal is therefore, satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in [Country 1] or Pakistan.
EVIDENCE AT THE HEARING
The applicant attended the hearing on 15 February 2023 with her legal counsel Mr. Athanasios Seremetis LL.B, Hanna Advisory.
The applicant confirmed for the Tribunal that she has been working in [Industry 1] since June 2015. The applicant said that currently, while in Australia, her work is in [Industry 1].
The applicant said that she has [specified children] living with her husband in Pakistan and their ages range from [age range] years. Currently, her husband is not in employment because of his ill health.
The applicant said that she that she was in [Country 1] for work and there she met and married her husband (in January 2004). The applicant explained to the Tribunal, that she had known her husband since 1999 and after a relationship had developed, she decided to ‘convert to Islam’ in order to be able to marry her husband. The applicant said that she was not forced to convert to Shia Islam and did so.
The applicant said that her ‘conversion’ to Islam occurred ‘prior to her marriage’ to her husband in 2004.
The applicant said that since 2004 when she married her husband, she has not returned to India with her husband.
However, the applicant has returned to India on a number of occasions. The applicant explained that she returned to India in 2005, and the purpose of that visit was to see her mother and her stay in India on that occasion was one week. The applicant returned to India in 2011 and remained in India for two weeks to be with her ill mother (now deceased).
The applicant said that she has ‘no other siblings in India’ and that she was the ‘only child.’ However, the applicant has relatives in India.
Incident with relatives in 2011
The applicant recalled that she returned to India in 2011 for the sole purpose of seeing her now ill mother. The applicant said that for reasons not to cause worry to her ill mother, she had ‘not disclosed her marriage’ to her. However, the applicant said that her late mother was a ‘shrewd woman’ and had informed her ‘that the authorities came to house’ (her mother’s) when the applicant was not there and ‘were asking about her whereabouts.’
The applicant said though her mother asked ‘why’ the ‘authorities were asking about her whereabouts’ the applicant did not say anything about her marriage to her Pakistani husband. The applicant confirmed for the Tribunal that she did not disclose her marriage to her mother, even though the police were making enquiries about her whereabouts.
The Tribunal asked the applicant – why would the Indian police be asking her mother about her whereabouts? The applicant said that the Indian police ‘knew that she was married to Pakistani national’ and ‘were keeping an eye on her’ while she was in India.
The applicant said that she ‘never disclosed to her mother her marriage’ because her mother was a ‘strong follower of the Hindu faith.’ The applicant explained that to know her daughter was married to a Pakistani would cause great concern but greater concern to her mother would be the fact that the applicant had ‘converted from the Hindu faith to Islam’ in order to marry. That being the case, it would be more difficult to accept because the applicant was the ‘only daughter’.
The applicant said that she ‘maintained her relationship with her (late) mother’ and continued to have ‘regular contact with her’. The applicant explained that her late mother was the ‘only family’ she had in India.
The Tribunal asked the applicant could she explain as to – how the police knew that she was married to a Pakistani national? Firstly, the applicant said that ‘her mother told her that the police were asking about her’ then, the applicant said that her ‘marriage status’ would have been found in her ‘passport’ which recorded that she ‘was married to a Pakistani national’. The applicant explained that ‘in her passport’ her husband is recorded as the applicant’s ‘legal guardian’.
The applicant said that her Passport “recorded” a series of information – for example, ‘where and when the applicant was married’ and ‘how many visits were made to Pakistan’ by the applicant.
The Tribunal asked the applicant – did she attend the local Indian police station when she was told by her mother that they were asking for her? The applicant said that she ‘did not go to the police station’ because it would ‘cause her stress.’
The applicant told the Tribunal that though she did not disclose her marriage to her mother, she ‘did tell her cousins.’ The applicant explained that upon hearing the news of her marriage to a Pakistani national, her ‘cousins became very upset’. Moreover, their ‘upset’ became ‘rage’ according to the applicant, when they were told that she ‘had converted to Islam in order to marry’ her husband.
The applicant told the Tribunal that at this meeting with her cousins once they were told about her marriage and conversion, they became violent towards her causing her harm which later required medical attention. The applicant said that she sought medical attention from a local GP and immediately ‘left for [Country 1]’.
The applicant said that when she ‘returned to [Country 1]’ she continued to ‘received a number of threatening calls from her cousins.’
The applicant said that she ‘returned to [Country 1] and never returned to India’ after the incident with her cousins in 2011.
The applicant’s cousins members of a Hindu religious extremist group
The applicant told the Tribunal that her cousins were ‘followers’ of the Hindu extremist group Shiv Sena, since 1999. The applicant described this group as a ‘Hindu religious group’ that was very nationalistic and did not have any tolerance for ‘Muslims’ and ‘strongly opposed Islam’ in India.
The applicant said that the Shiv Sena group was well known in the State of Maharashtra but was ‘all over India’.
The threat of ‘anti-conversion laws’ in India, generally
The applicant said that it was difficult for her to return to India at any time because of the prevalence of anti-conversion laws. The applicant explained to the Tribunal, if these laws are adopted by various states in India – which is currently, the trend and the applicant would find it difficult to return to any part of India, if she was to return to India.
The Tribunal asked the applicant – how would people find out about her conversion from Hinduism to Islam? The applicant said this would be done via ‘documents’ for example, the ‘National Id Card’ which would note her religious status being a ‘Muslim’. The applicant said from this ‘documentary evidence’ she ‘would be discriminated’ if she was compelled to return to India to live.
The applicant said that she has been living away from India for 16 years and it would be difficult for her to live in India on a permanent basis.
Also, the applicant expressed her fears that with the Anti-conversion laws being enacted in various state jurisdictions in India, she could, if she is returned to India, be apprehended by the authorities and place in prison because she converted from Hinduism to Islam.
Moreover, life in India generally speaking is difficult for a person like applicant, the Tribunal was told.
Difficulties for the applicant in Pakistan
The applicant said that it was also difficult for her to return to Pakistan because she had received threats from others, her neighbours because she had ‘converted from Hinduism to Islam.’
The applicant fears these threats would cause issues for her children if she returned to Pakistan.
The Tribunal asked the applicant – what occurred when she applied to enter Pakistan on a visa? The applicant said that when she applied to enter Pakistan on a visa she was asked ‘many questions’ and found the process she had to undertake difficult.
The Tribunal asked the applicant being the spouse (legally married) of a Pakistani national did she and her husband consider an application for the applicant for Pakistani citizenship? The applicant explained to the Tribunal that she had not explored the question of acquiring Pakistani citizenship since her marriage in 2004.
The applicant told the Tribunal that her tourist visa to enter Australia was granted without any issues. The applicant explained that her [Country 1] employer sponsored her to come to Australia ‘to attend an exhibition.’ The applicant has remained in Australia since her arrival here in 2014.
Relocation within India
The Tribunal discussed with applicant the possibility of her relocating within India to an area or areas not affected by the possible enactment of anti-Conversion laws. The applicant said that was ‘difficult’ for her to relocate to any part of India. The ‘discrimination’ that she would suffer as a convert from Hinduism to Islam (Shia) would follow her ‘everywhere.’
‘Relocation’ according to the applicant was not an option for her which could be properly considered as a solution to her problem.
Return to Pakistan?
The applicant told the Tribunal that she had ‘in-total’ lived in Pakistan for no more than ‘three weeks.’
The applicant described her stay in Pakistan as full of concerns and fears for her life and that of her family. The applicant recalled that on one occasion the applicant’s residence was ‘shot at by unarmed men.’ The Tribunal asked the applicant for the reasons this would happen to her and the applicant explained that those that shot at her residence were ‘some religious people.’
The applicant said that the Shia are treated as a ‘minority’ in Sunni-Pakistan.
The applicant said that matters were not helped because of her husband’s involvement and support (publicly) for the Shia cause in Pakistan. The applicant offered no further information on her husband’s religious activities in Pakistan and how they have contributed to her being targeted by certain Sunni religious radicals or others.
Counsel’s submissions to the Tribunal[1]
[1] See, AAT File, written submission, HANNA ADVISORY
The applicant’s counsel identified the following claims:
a. Her conversion from Hinduism to Islam (Shia).
b. Her marriage to a Pakistani Man.
c. Family violence by family members who are Shiv Sena supporters.
d. Her repatriation to India as a single woman.
Counsel highlighted the following findings which they considered were in dispute:
a. Credibility concerns relating to delay in making a Protection visa application.
b. Credibility concerns relating to her motivations for applying for a Protection visa.
c. Credibility concerns relating to family violence.
d. Shiv Sena’s motivations are only of a political nature – hence do not affect the applicant’s risk of persecution.
e. That the discrimination claimed by the applicant, on account of all her claims does not meet the required threshold of persecution.
·Violence committed by Family: Following the incident, where the applicant was struck to the mouth by her cousin, concerns were given that she did not file a police report. Country information indicates that despite the plethora of laws to prevent crimes against women, in practice violence against women in India.[2] Country information further indicates that in India, for the police to investigate a case and commence the criminal justice process, they must prepare a First Information Report (FIR).[3]
[2] see, paragraph 3.117 DFAT Report India, 10 December 2020, available at chrome – extension://efaidnbmnnnibpcglclefindmkaj/ see, paragraph 5.10 DFAT Report India, 10 December 2020, available at chrome-extension://efaidnbmnnibpcglcefindmkj/
·Prevalence of such violence without being reported to the authorities, is also supported by the DFAT report, indicating that available data likely underrates the true extent of violence against women due to underreporting of cases.[4] It seems the failure of the applicant to contact the police where domestic violence has occurred, is not uncommon occurrence culturally and socially. Thereby it should not be held against her in respect of her credibility.
[4] DFAT Report India, 10 December 2020, available at chrome-extension://efaidnbmnnibpcglcefindmkj/
·Another aspect of her claims which was scrutinized, was the motivation of the cousin, whom the applicant described as a Shiv Sena supporter. The relevance of the connection, is that ‘Shiv Sena’ or the RSS are Hindu nationalist groups, and have often been behind instances of communal tension involving Muslims including violence, assaults, riots, religiously motivated killings and discrimination.[5]
[5] see, paragraph 3.43 DFAT Report India, 10 December 2020, available at chrome – extension://efaidnbmnnnibpcglclefindmkaj/ further support the applicant’s explanations that they were motivated to harm her due to their support of Shiv Sena or the RSS, DFAT indicates that the RSS movement and its affiliates have been known to work at the grass roots level to organise Hindus and defend their interests. Participants reportedly engage in lessons that prioritise the Hindu way of life.[6]
[6] see, paragraph 3.35 43 DFAT Report India, 10 December 2020, available at chrome – extension://efaidnbmnnnibpcglclefindmkaj/>
Overall, Counsel indicated that in considering the information submitted it showed that:
·Country information supports the fact why the applicant did not report the incident to the police;
·Country information supports that Shiv Sena, or the RSS are active at the grassroots level often teaching anti-Muslim sentiment;
·There is no requirement under Australian law to corroborate claims through the provision of evidence; and
·It is likely through the provided context, that the applicant did suffer domestic violence as claimed.
Counsel also made submissions concerning the applicant’s conversion and subsequent marriage to a Pakistani national in the following:
·The applicant’s inter-faith and mixed marriage forms a basis of her risk profile in India.
·Overall DFAT assesses the treatment of people in inter-faith and inter-caste marriages varies according to the families involved.
·Conversion in certain states is punishable by law.[7]
[7] 3.29 DFAT Report India 10 December 2020, available at chrome – extension://efaidnbmnnnibpcglclefindmkaj/ the applicant is from Mumbai, a state which does not have anti-conversion laws, the DFAT report indicates that Maharashtra is also reportedly considering adopting such a law.
·As it stands, the current anti-Conversion laws applicable in other states (10 out of 28) would sincerely affect the applicant’s ability to relocate in those affected states.
·Furthermore, her religion as a Muslim, carries with it its own risks. Despite their large numbers, Muslims in practice are under-represented in some areas of employment and administration – although there have been improvements in representation in the civil service in recent years. Muslims are often employed or self-employed in small businesses, artisanship, fishing and unskilled work.
·In terms of her mixed marriage to a Pakistani, [the submission reads] that no appropriate country information that definitely indicates discrimination on this ground. The submission suggests that one must refer to India’s and Pakistan’s history, where it is likely that many residents hold an anti-Pakistani sentiment. This in many ways can increase the discrimination faced by the applicant.
Counsel also made submissions on the issue of relocation as “not being reasonable” for the following reasons:
·Single women, or victims of domestic violence may find it difficult to relocate within India without the support or supervision of a male relative to access accommodation and services.[8]
[8]
·She is a Shiite Muslim, who converted from Hinduism, hence she will be caught under the ACLs in certain provinces;
·She has no familial support due to her actions in marrying a Pakistani man and converting to Islam;
·She has no social connections as she has been absent from India for a considerable period of time;
·As she is a Muslim the levels of discrimination in prospective areas of relocation may be heightened;
·Rural areas would not be appropriate for her to relocate given her interfaith marriage;
·She may encounter difficulties in subsistence in other provinces.
Finally, the Counsel addressed the issue of complementary protection as follows:
·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’).
·‘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.
·There are certain circumstances in which there is not taken 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.
COUNTRY INFORMATION – INDIA – ANTI CONVERSION LAWS – MUSLIMS
Anti-Conversion laws in India
According to the latest DFAT country information[9] – report – India, seven Indian states have almost identical laws regulating religious conversion and require notification, or sometimes permission, of the local government before an individual can change their religion. These states are home to almost 90 per cent of India’s STs, have high populations of Dalits and OBCs, high levels of poverty and illiteracy, and poor health care. Some analysts claim anti-conversion laws are linked to Hindu nationalists’ fear that Dalits and others treated as low caste will leave Hinduism and shed their caste status, which is deeply entrenched in Hinduism.
[9] Department of Foreign Affairs & Defence (Australia) Country Information Report – India, December 2020 at paragraphs [3.27]-[3.31] at pp. 27, 28.
ACLs do not directly ban conversion; instead, they ban conversions by means of ‘force, allurement, inducement or fraud’. These terms have no precise definition and in practice provide the administration and its agents wide powers of arrest. For example, Jharkhand’s penalties are three years’ imprisonment and a 50,000 rupee fine (approx. AUD1,000) or, if the convert is a minor, woman, or member of a SC or ST, four years’ imprisonment and a 100,000 rupee fine (approx. AUD2,000). The laws of Gujarat, Madhya Pradesh and Himachal Pradesh make it incumbent upon neighbours or villagers to inform the administration and the police of any activities of pastors, nuns and clergymen, which could give rise to a suspicion of proselytising motives. Christian advocacy group Open Doors claims ACLs are used to make false accusations of coercion against ‘those who have genuinely become Christians from a Hindu background’ and those who have introduced them to Christianity. While conversion from Hinduism to other minority religions is closely scrutinised and can trigger criminal charges, conversion (including forced conversions) of non-Hindus to Hinduism occurs, with no legislation addressing ‘reconversion’.
Reconversion (‘ghar wapsi’ programs) are carried out by a number of Hindu organisations. In January 2019, media reported 96 Christians were converted in a ghar wapsi ceremony in Tripura. According to media reporting in 2014, the Hindu nationalist organisation Dharm Jagram Samiti (DJS) claimed to have re-inducted over 600,000 people into Hinduism since 1966, with DJS’s head in Uttar Pradesh stating their target was to make India a Hindu state by 2021. Some commentators view the government’s silence on the issue of ghar wapsi as tacit approval of the practice.
Local sources report instances of violence linked to religious conversion. According to Indian non-profit organisation Persecution Relief, in February 2019, 40-year-old Anant Ram Gand, a Christian convert, was beheaded in Raigarh Tehsil, Odisha. Villagers who had opposed his conversion nine months earlier allegedly armed local Naxals to carry out the murder, claiming the man would reveal Naxal secrets to the police. A week before the attack, seven villagers had reportedly given Gand an ultimatum to renounce Christianity or face death. In February and May 2019 respectively, two men were killed in Chhattisgarh following opposition to their conversion to Christianity. On 24 October 2019, a Christian, Pastor Saanvi, was beheaded in Odisha after warnings to stop his ministry work.
The situation of Muslims in India
Islam is the second-largest religion in India, with 14.23 per cent of the population identifying as Muslim (approx. 172 million people) (up from 13.4 per cent in the 2001 census). Muslims are the second largest minority group within India after SCs. According to 2019 estimates, India’s Muslim population is roughly the world’s second largest (sitting at 11 per cent of the world’s Muslim population, just behind Indonesia) and the world’s largest Muslim-minority population. Based on 2011 census figures, Muslim majority states or territories are (the erstwhile state of) J&K (68.31 per cent, approx. 8.5 million people) and Lakshadweep (96.58 per cent, approx. 62,270 people). Muslims are a minority elsewhere, although are often concentrated in Muslim residential areas. States with significant Muslim populations include Uttar Pradesh (38.4 million), West Bengal (26.4 million), Bihar (17.5 million), Maharashtra (12.9 million), Assam (10.6 million) and Kerala (8.8 million).[10]
[10] Department of Foreign Affairs & Trade (Australia) Country Information Report – India, 10 December 2020, see paragraph 3.40 at p. 29
Muslims in India are not a homogenous group; they differ in language (mainly Urdu, but also regional languages), ethnicity, culture and economic position. The vast majority are Sunni Muslims; the remainder are Shia and diverse sects. Indian Muslims are not granted the same constitutional safeguards as SCs or STs, and are not entitled to reservations in employment or education. Although Muslims are not entitled to reserved constituencies in the central or state government assemblies, Muslim parliamentary representation is common, including at the Cabinet level. However, Muslims are under-represented as a proportion of their population. There have been several Muslim Chief Ministers in various states and, to date, two Muslim Presidents of India.[11]
[11] Ibid, see paragraph [3.41] at p. 29
Despite their large numbers, Muslims in practice are under-represented in some areas of employment and administration – although there have been improvements in representation in the civil service in recent years. Muslims are often employed or self-employed in small businesses, artisanship, fishing and unskilled work. Media reports the rate of Muslim migration to large cities is decreasing because Muslims are ‘shut out of the labour market’.[12]
[12] Ibid, see paragraph [3.42] at p. 29
Reported instances of communal tension involving Muslims in recent years, include violence, assaults, riots, religiously motivated killings and discrimination. According to a July 2019 survey by the Pew Research Center, which researched religious restrictions in the 25 most populous countries, India ranked among the top five countries with the highest levels of social hostilities. Hindu nationalist groups, such as the Shiv Sena or the RSS, have been responsible for some incidents, in what some observers claim is a permissive environment (see Hindu nationalist organisations). In March 2019, the UN High Commissioner for Human Rights warned India over ‘divisive policies’ and harassment of minorities, particularly Muslims, Dalits and Adivasis.[13]
[13] Ibid, see paragraph [3.43] at p. 29
Indian Prime Minister Modi and other senior government leaders have emphasised the importance of community harmony and religious groups supporting each other during the COVID-19 pandemic. In an address to the HRC on 30 June 2020, however, the UN High Commissioner for Human Rights expressed concern at reports members of India’s Muslim minority were being targeted by stigma and hate speech associating them with COVID-19. In March 2020, Indian authorities linked cases of COVID-19 to a Muslim missionary movement, Tablighi Jamaat, that had held a religious gathering in Delhi, allegedly in violation of social distancing rules. Subsequently, tweets with the hashtag #CoronaJihad trended on Twitter in India, with Time Magazine reporting its use nearly 300,000 times between 28 March and 3 April 2020. Digital human rights group, Equality Labs, claimed many of the social media posts had not been removed, despite violating Twitter’s rules on hate speech and coronavirus.[14]
[14] Ibid, see paragraph [3.44] at p.30
Cow-related attacks The cow is considered sacred within Hinduism. Cow slaughter is forbidden in much of India, although beef is consumed by certain minority groups. India has witnessed attacks by cow protection groups on people believed to be involved in slaughtering cows, selling beef or illegally transporting cows. A 2019 Human Rights Watch (HRW) report claims members of the BJP have used rhetoric that has spurred violence against beef consumption and those deemed linked to it. A database tracking cow-related hate crimes recorded 120 such crimes nationwide between 2010 and 2018, resulting in 45 deaths and at least 245 injured. Over 98 per cent of the crimes took place after 2014. Muslims were disproportionately affected, accounting for 50 per cent of the victims (compared with Hindus at 9 per cent, Dalits at 10 per cent, Adivasis at 3 per cent, and 28 per cent of unknown religion or caste).[15]
[15] Ibid, see paragraph [3.45] at p.30
Observers have linked the rise in cow-related attacks to growing Hindu nationalism. Most reported attacks in the nine years from 2010 to 2018 occurred in Uttar Pradesh, Haryana, Karnataka, Jharkhand and Gujarat states. According to HRW, many of the attacks have been led by ‘cow protection groups’ reportedly affiliated to militant Hindu groups with ties to the BJP.[16]
[16] Ibid, see paragraph [3.46] at p.30
In July 2018, with the rise of cow-related attacks, the Indian Supreme Court reportedly demanded that the legislature formulate laws against the practice. DFAT understands this has not yet occurred. Media reports few perpetrators of cow-related violence are punished, creating a culture of impunity. In some instances, attacks have been filmed and posted on social media channels associated with militant Hindu groups. For example, a 2017 mob attack on Muslim dairy farmer Pehlu Khan and his two sons in Rajasthan was posted on a YouTube channel linked to BD. Of the nine accused in this case, six were acquitted in August 2019. At the same time, charges were brought posthumously against Pehlu Khan under section 6 of the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995. Human rights observers report counter-complaints against witnesses and family members can make them afraid to pursue justice and, in some cases, alleged perpetrators enjoy open political patronage.[17]
[17] Ibid, see paragraph [3.47] at p.30
Ayodhya – Babri Mosque and Hindu Temple 3.48 The centuries-old Babri Mosque, in Ayodhya, Uttar Pradesh, was destroyed in 1992 by Hindu mobs. This led to thousands of deaths across India – mostly Muslims – in subsequent riots. Hindus believe the mosque was built on the same spot Hindu God, Lord Ram, was born, and where a Hindu temple had stood centuries earlier.[18]
[18] Ibid, see paragraph [3.48] at p.30
In the lead-up to the May 2019 federal election, the BJP made the construction of a new temple at the site an election promise. On 9 November 2019, the Supreme Court ruled that, while the demolition of the mosque was illegal, the site of the destroyed mosque must be handed over to a trust to oversee the construction of a Hindu temple, with land allocated to the trust for construction of a new mosque nearby. Prime Minister Modi welcomed the court’s decision. Following the judgement, the Modi government constituted the 15-member trust (Shri Ram Janambhoomi Teertha Kshetra Trust), with construction initially due to commence in April 2020; however, the nation-wide lockdown due to COVID-19 delayed commencement. On 5 August, a ground-breaking ceremony was held.[19]
[19] Ibid, see paragraph [3.49] at p.30
During the civil case over the site, union and state governments deployed Special Forces extensively and restricted access to social media in an attempt to maintain law and order among communities. According to media analysis, the Muslim community’s relatively low-key reaction to the ruling was partly driven by fear given the large deployment of police in many cities in the days leading up to the judgement. The main opposition parties largely support the construction of a Hindu temple at the site.[20]
Triple Talaq In July 2019, The Muslim Women (Protection of Rights on Marriage) Bill, 2019 became law. The law makes void and illegal talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. Under the law, it is illegal to pronounce talaq (Arabic for ‘divorce’) three times in spoken or written form, or through SMS, WhatsApp or any other electronic chat in one sitting. Any Muslim who pronounces the illegal form of talaq upon his wife can be punished with imprisonment for up to three years, and be liable to a fine. India joins Afghanistan, Bangladesh, Egypt, Morocco, Pakistan, Saudi Arabia, and the United Arab Emirates in banning triple talaq. On the passing of the law, Prime Minister Modi stated on Twitter ‘An archaic and medieval practice has finally been confined to the dustbin of history! Parliament abolishes Triple Talaq and corrects a historical wrong done to Muslim women. This is a victory of gender justice and will further equality in society. India rejoices today!’. Opponents to the law stated it was ‘another attack on Muslim identity under the BJP and marginalises Muslim women even more’.[21]
Campaigners have stated it is not possible to quantify how many cases of triple talaq occur in India. Despite the law, the practice continues, with police investigating cases when reported.[22]
DFAT assesses Muslims face a low risk of official discrimination. DFAT assesses many Muslims live day-to-day with low levels of societal discrimination and violence. Communal violence has occurred in India for many decades. The Muslim community has often been disproportionately affected and the February 2020 Delhi riots marked the latest episode. Hindu nationalist politics has heightened communal tensions in parts of India in recent years. In this climate, there are higher levels of fear in the Muslim community. The risk of societal discrimination and violence is higher for Muslims who are involved in cow slaughter; however, these incidents, while widely reported, have not affected the day-to-day lives of most Muslims.[23]
Marriage (inter-faith, inter-caste)[24]
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.
[20] Ibid, see paragraph [3.50] at p.31
[21] Ibid, see paragraph [3.51] at p.31
[22] Ibid, see paragraph [3.52] at p.31
[23] Ibid, see paragraph [3.53] at p.31
[24] Ibid, see paragraphs [3.134]-[3.144] at pp.43-44
100. 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).
101. 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.
102. 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.
103. 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.
104. 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.
105. 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.
106. Other intermixed unions perceived to be less socially accepted are those between rich and poor, and Dalit and non-Dalit Hindus.
107. 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.
108. 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’.
109. 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.
FINDINGS AND REASONS FOR DECISION
The issue of credibility
110. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decision.[25] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[25] For example see, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Others (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIIhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD445, Chand v Minister for Multicultural Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
111. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan[26] Foster J stated that:
“…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[27]
[26] (1996) 40 ALD 445.
[27] At [482].
112. Numerous decision have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
113. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Lian & Others,[28] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[29]
“First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.”
[28] (1996) 185 CLR 259.
[29] At [25].
114. The Tribunal is not required to accept uncritically any, or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obligated to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that
“…where there is conflicting evidence from different sources, questions of credit of witnesses may be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[30]
[30] [1997] FCA 1198 accessed 15 February 2017.
115. Nevertheless, as Burchett J counselled,[31]it is necessary to:
“…understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.”
116. The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.” [32] On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991_Butterworths) at pp. 84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[33] Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[34] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[35] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[36]
“…the fact that an Applicant for refugee status may yield to temptation embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that the Applicant for refugee status is, on one view of events, engaged in an often-desperate battle for freedom, if not life itself.”
[32] see, in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167, at accessed 15 February 2017.
[33] see,
[34] Minister for Immigration and Multicultural Affairs v Rajalingam (199) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).
[36] (1999) 197 CLR 510 at [191].
117. The Tribunal notes, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
118. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim a satisfied. The Tribunal notes that in lyer [37] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go further in its analysis of the basis of the claim. This decision was affirmed on appeal.[38]
[37] Iyer v MIMA [2000] FCA 52 (see, the judgement of O’Connor J, 4 February 2000), at [32]-[34].
[38] see, Iyer v MIMA [2000] FCA 1788 (see Heerey, Moore and Goldberg JJ, 15 December 2000). Also see, SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
119. The Tribunal notes that if it makes findings that the applicant’s claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of harm. Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims. On the other hand, if the decision-maker finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is subjective fear.[39]
Consideration of the applicant’s claims – is the applicant entitled to protection as provided for in s. 36(2)(a) of the Act?
[39] see, SAAD v MIMA [2003] FCAFC 65 (Cooper, Carr and Finklestein JJ, 11 April 2003) at [38] and see also, Selliah v MIMA [1999] FCA 615 at [40].
120. The applicant is [an age]-year-old, female from the city of Mumbai, province of Maharashtra, India. She is of the Shia Muslim faith having (willingly) converted from her Hindu faith upon marriage. She is married to her husband (a Pakistani national) who she met and married [in] January 2004 in [Country 1], and has [specified children] to that marriage. Her husband and [children] all live in Pakistan.
121. The applicant arrived in Australia [in] November 2014, as the holder of a subclass 600 Tourist visa, with a set expiration date of 3 February 2015. On 30 January 2015 the applicant applied for a Protection visa (XA-866).
122. The applicant lodged an application for a Protection visa on 11 January 2017, her claims surrounding her religious conversion, the ‘stigmatized nature’ of her interfaith and mixed marriage, and the prospect of being repatriated to India as a single woman.
123. The Tribunal noted that the applicant made the following claims in her Form 866:
Q90.I am an Indian national who converted to Islam when I married my husband who is of Pakistani nationality. I left India to work in [Country 1]. I met my husband in [Country 1] when we were both working there. My husband lost his work rights in 2013 and had to take my [children] back with him.
I cannot live in Pakistan as I have a real fear for my life and of my husband and [children].
My husband and I cannot live in India due to the fact that I have converted to Shia Islam. I have received threats on my life from family members because of this. It is unacceptable for an Indian woman to marry a Pakistani man – especially since he is a Shia Muslim. My husband and [children] can never become Indian nationals. Likewise, I cannot become a Pakistani national.
Every time I visited them in Pakistan, I received threats from local religious groups. Our neighbours in Pakistan are completely against our marriage due to the fact that [I am] an Indian national and was originally a Hindu.
Q91.If I return to India, I will be killed either by my own family members or other groups who know about the fact that I have converted to Islam and have married a Pakistani [man].
In Pakistan, my family and I have death threats on a number of occasions and due to the religious and political climate in Pakistan I fear that my family and I will be killed or seriously hurt.
Q92.Did you experience harm in that country(s)?
Yes.
Apart from the threats on our lives on my last visit to Pakistan in the middle of the night a group of armed men fired shots at our house, and we were lucky to have survived unharmed.
The men fled once our neighbours woke up.
We received numerous death threats by mail and via telephone.
With every visit to Pakistan I [the applicant] was interrogated and harassed by security office [officials] and the local police station as to the reason for my visit.
Q93. Did you seek help within the country(s) after the harm?
In Pakistan my husband attempted to seek assistance from the local authorities including the local police, but the police were not helpful and stated that I am a person that they suspect of being involved in illegal activities. This was due to my nationality and the resentment Pakistanis feel towards Indians.
Q94.Did you move, or try to move, to another part of that country(s) to seek safety?
Yes.
In Pakistan after shots were fired at our house, I moved to another city called Lahore in order to seek safety. I could last for long as the authorities were again unhelpful. In addition, the visa that I was given when I entered Pakistan states the name of the city that I will be staying in ---therefore, I could not stay in Lahore for too long and eventually was forced to leave the country and go back to [Country 1].
95.Do you think you will be harmed or mistreated if you return to that country(s)?
In Pakistan I believe I will definitely be killed due to the hardline religious groups who have already made numerous threats to our lives.
In India I will be killed either at the hands of my own family or those who know about my marriage and conversion to Islam.
97.Do you think you would be able to relocate within that country(s)?
No.
I will not be able to relocate in India as members of my family who are involved in politics have a great influence on the local police and can easily locate me in India. My conversion to Shia Islam would also make it impossible for me to relocate as people can easily find out about my religion. In addition, my husband and [children] cannot relocate to India which further complicate matters.
In Pakistan because my husband is a Shia Muslim there are restrictions as to where we can live. Shia Muslims are a minority in Pakistan and are consistently oppressed by the Sunni majority. Local communities or religious groups easily find out about one’s religion.
124. In summary, the applicant’s evidence to the Tribunal relied on the following claims:
(a) Her conversion from Hinduism to Shia Islam and her marriage to a Pakistani national.
(b) family violence committed by her family members who are Shiv Sena supporters and,
(c) Concerns about her repatriation to India as a single woman.
125. The applicant claims to fear being killed by her family members or by the Indian Hindu community for marrying a Pakistani national and converting from ‘Hinduism’ to ‘Shia Islam.’ The applicant also claims that she has received death threats while living in Pakistan with her husband and [children] because she is an Indian who had converted to Shia Islam and therefore, cannot return to Pakistan. Finally, the applicant claims she cannot return to India because of her marriage to a Pakistani national and fears that her circumstances will attract discrimination which would amount to harm. For the reasons that follow the Tribunal does to accept the applicant’s reasons as credible.
(a)The Applicant’s conversion from Hinduism to Shia Islam and her marriage to a Pakistani national
126. The applicant claims that her conversion from the Hindu faith to Shia Islam and her (mixed) marriage to a Pakistani national ‘forms the basis of her risk profile’ in India. It is a fact, that inter-faith marriages occur in India and are not legally restricted from occurring. Despite their legality, there is a trend in India at the societal level, to treat such marriages with disdain and do not tolerate inter-caste and inter-faith marriages. Many families cease contact with sons or daughters who undertake such marital unions, while other families even venture along the ‘tragic’ path of committing or instigating acts of violence against the person or persons who undergo the marriage.[40] There have also been instances of communal tensions and violence because of such issues.[41] The Tribunal noted this information.
[40] see, DFAT Country Information Report – India, 10 December 2020 at paragraph [3.317], available at chrome-extension://efaidnbmnnibpcajpcglclefindmkaj/
[41] Ibid.
127. Of a particular trend for this social disapproval of mixed marriages in India is that such marriages generally happen after one of the parties converts to the other party’s religion, despite being unnecessary under SMA. While the Indian Constitution guarantees freedom of conscience and freedom of association to all Indian citizens, for some in the wider Indian community, conversion has been and continues to be a sensitive issue.[42] Hindu nationalist elements 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. However, DFAT has found no evidence of Muslim men coercing Hindu women into marriage for the purposes of proselytisation.[43]
[42] see, DFAT Country Information Report – India, 10 December 2020 see, at p.44.
[43] Ibid DFAT Country Information Report, see paragraph [3.140] at p. 44.
128. Also, practical issues such as renting property, obtaining a passport or boarding flights can be difficult for such mixed marital unions. Some report the need to remain vigilant against being discovered, 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’ who provide a mix of legal advice, counsel and shelter.[44]
[44] Ibid, see paragraph [3.142] at p.44.
129. The applicant told the Tribunal that members of her family had disapproved of her conversion and marriage to her Shi’a Muslim (Pakistani national) husband and had threatened and physically assaulted her when she was India. In her evidence, the applicant told the Tribunal that she was in [Country 1] for work purposes and there she met and married her husband (in, January 2004) The applicant explained to the Tribunal that she had known her husband since 1999 and after a relationship had developed, she “decided to convert to Islam” in “order to be able to marry her husband.” The applicant admitted to the Tribunal that she had not been forced to convert to Shia Islam. The applicant also said that since 2004 when she ‘married her husband, she has not returned to India with her husband.’
130. However, the applicant returned to India on a number of occasions. The applicant explained that she returned to India in 2005, and the purpose of that visit was to ‘see her mother’ and her stay in India on that occasion was for one week. The applicant again returned to India in 2011 and remained in India for two weeks to ‘be with her ill mother’ (who is now deceased).
131. It was the applicant’s evidence to the Tribunal that she returned to India in 2011 for the sole purpose of seeing her ill mother – now deceased. It was also the applicant’s evidence that her mother had not been told by the applicant of her marriage to a Pakistani national or about her conversion to Islam in order to marry. The Tribunal noted that the applicant described her mother as being a “shrewd woman”. The applicant also said that when she was in India (visiting her late mother) in 2011, her mother told her that the local police had called in and were “asking about her whereabouts.” The applicant, was asked by the Tribunal – why would the Indian police be asking her mother about the applicant’s whereabouts? The applicant’s response was to tell the Tribunal that the ‘Indian police knew that she was married to a Pakistani national’ and ‘were keeping an eye on her while she was in India.’ The Tribunal does not accept as credible the applicant’s circumstances as she explained them concerning her return to India in 2011and the interest of the Indian police in her visit. The Tribunal has a number concerns with the applicant’s evidence as provided to the Tribunal.
132. First, the applicant said that she had ‘never told her mother (now deceased)’ that she had converted to Islam or that she had married a Pakistani national. It should be noted that the applicant (according to her evidence) had married her Pakistani husband in 2004, she had gone to India with him in 2005 and yet claimed that her mother who was ‘a shrewd woman’ was ‘never told about the marriage.’ The Tribunal does not accept this as the truth.
133. Second, the applicant said that the local police had attended her late mother’s residence seeking information about the applicant’s ‘whereabouts’ but according to the applicant’s evidence – the local police never told her late mother the reason or reasons why they were seeking the applicant’s whereabouts.
134. This explanation is questioned seriously by the Tribunal.
135. The applicant in her evidence, painted a picture of her circumstances when coming to India, of being under the authorities’ attention because she had married a Pakistani national and had converted to Islam; surely then, her mother being a ‘shrewd woman’ as the applicant described her – would have asked questions of the police as to why they were asking the whereabouts of her daughter (and if they did not explain to her the why?) surely, the ‘shrewd mother’ would have asked the applicant to explain to her the police’s interest in her whereabouts. The applicant did not explain what happened next. What causes the Tribunal to further doubt the applicant’s credibility is her evidence that ‘she did not go to the police station’ because ‘it would cause her stress.’ This explanation further enhances the Tribunal’s credibility concerns. It stands to reason, that if the applicant was seriously under suspicion for her marriage to a Pakistani national and because of her religious conversion as claimed, the authorities would have continued with their attempts to seek her out to account to them and would have prevented her from leaving India. This did not happen in reality.
136. As the applicant came unhindered so did, she leave India in 2011. From the applicant’s explanation of her circumstances in 2011 while in India, it is clear to the Tribunal that there was no interest as was claimed by the police in the applicant’s personal details and whereabouts. Therefore, while the Tribunal accepts that the applicant was married to and continues to be married to a Pakistani national and that in order to marry her Pakistani she willingly and without coercion converted her religion from Hinduism to Shia Islam; the Tribunal does not accept and finds that there is no a real risk that the applicant will be persecuted for reasons of her religious conversion and marriage by the Indian police or that they would constantly monitor her whereabouts while in India if she returns to India now or in the reasonably foreseeable future.
(b). Family violence by her family members who are Shiv Sena supporters.
137. It was the applicant’s evidence to the Tribunal that though she did not disclose her marriage and conversion to Islam to her mother, she “did tell her cousins.” The applicant told the Tribunal that upon hearing this news, her “cousins became very upset.” More to the point, according to the applicant’s evidence they became full of “rage”. The applicant also told the Tribunal that at ‘this meeting’ with her cousins, they became violent towards her, causing physical harm which later required medical attention. The applicant said that she sought medical attention to her injuries from a local GP and then “immediately left for [Country 1].”
138. After this incident (which occurred in 2011) the applicant never returned to India. The applicant also told the Tribunal that her cousins who physically assaulted her were ‘followers’ of a “Hindu extremist group” known as “Shiv Sena”, since 1999. The applicant described this group as a “Hindu religious group’ that was very “nationalistic” and did “not tolerate Muslims” and “strongly opposed Islam.” The applicant also told the Tribunal that this Hindu extremist group (the ‘Shiv Sena’) was “well-known in the State of Maharashtra” but also, “all over India.”
139. The Tribunal has serious credibility concerns with the applicant’s evidence for a number of reasons.
140. First, if the applicant knew her cousins were involved with this Hindu religious extremist group “since 1999” as she claimed in her evidence, why did the applicant tell her cousins about her conversion to Islam in order to marry a Pakistani national. Second, the applicant in her application for Protection to the Department claimed that ‘if she return[ed] to India she would be killed by her own family or members of the community who knew that she was a Muslim convert and married to a Pakistani national’ – there was no mention of the extremist group Shiv Sena or members of her family being ‘supporters’ of this group until the applicant mentioned this extremist group to the previous Tribunal (and to the Tribunal in this instance) who heard her application for review. If, this was the case originally, it stands to reason, that the applicant would have made this known earlier, not later. Moreover, if this evidence was the truth (the applicant having fears) (which it is not) why would she have concealed her religious conversion and marriage to a Pakistani national from her mother – a member of her immediate family – the only one in 2011, that was alive and then tell her cousins – her extended family, and known to her as she claimed to be supporters of a religious extremist (Hindu) group?
141. The Tribunal does not consider this explanation – which attempted to explain the applicant’s past, current and future fears in India to be the truth. It is, in the Tribunal’s opinion, an explanation concocted and included in the applicant’s claims only to add emphasis to the fact that the applicant was in immediate danger from her family members (her cousins) because of religious conversion and marriage to a Pakistani national only to make her claims more attractive in order to attract favourably Australia’s protection obligations under the Convention – an attempt that is not convincing. The Tribunal finds that it does not accept that there is a real risk that the applicant will be persecuted or targeted for reasons of her conversion from Hinduism to Islam and her marriage to a Pakistani national by her cousins who are as claimed supporters of extremist Hindu religious group that does not tolerate inter-faith marriages and Islam if she returns to India now or in the reasonably foreseeable future.
(ii)The Pakistani authorities and the applicant
168. The applicant claimed that she feared being questioned each time she returned to Pakistan to see her husband and [children]. The applicant said each time she returned to Pakistan she would be asked the ‘purpose of her visit’. Again, as the Tribunal noted earlier on, the applicant was legally married to a Pakistani national and was a convert to her husband’s Shi’a religion. The applicant provided no plausible explanation why routine questions by passport/border officials upon her entry into Pakistan caused her concern. The Tribunal does not see any reason for this concern. Indeed, her motives may have been asked by officials to be stated and recorded but her entry into Pakistan was never the subject to a bar or long-term prohibition. The Tribunal finds it does not accept that there is a real chance that the applicant will prevented for any reason whatsoever especial because she is an Indian-national that had converted to Shi’a Islam and was married to a Pakistani national from entering Pakistan when she decides to return in order to see her husband and children or to remain with her family for any period of time.[53]
(iii)The applicant’s legal right concerning the acquisition of Pakistani citizenship
[53] The applicant’s entry could only be legitimately examined and subjected to the rules and ordinances in place concerning ‘immigration’ and ‘repatriation’ matters which are generally applicable to all persons who wish to enter Pakistan.
169. While the issue of whether the spouse (the applicant) of a citizen of a Pakistan can acquire citizenship was not raised at the hearing, the Tribunal considers it a point which required examination and discussion merely as an indication that the applicant had legitimate options before her to choose other than returning and residing in India.
170. Section 10 of the Pakistan Citizenship Act, 1951 prescribes the conditions for granting Pakistani citizenship to foreign spouses of Pakistani men (Pakistan 1951b, Sec. 10). Specifically, the section states that the wife of a Pakistani citizen shall be entitled, on making application therefore to the Federal Government in the prescribed manner [and] if she is an alien, on obtaining a certificate of domicile and taking the oath of allegiance in the form set out in the Schedule of the Act, to be registered as a citizen of Pakistan whether or not she has completed twenty-one years of her age and is of full capacity. Section 10 of the Act also renders eligible for citizenship the widow of a man who would have himself been eligible for citizenship.
Requirements, Procedures and documentation needed
171. An Application Form F, “Application by a Married Woman for a Certificate of Pakistan Citizenship by Registration,” is provided in Appendix VI of the Pakistan Citizenship Rules, 1952 (Pakistan 1951). In addition to asking for personal information about the applicant, the Form requests her to prove her identity and relationship with a Pakistani citizen by providing the following information:
(a) Nationality of the Applicant
(b) Marriage with person named in para.3
(c) Pakistan Citizenship of husband mentioned in para. 3 of the application
(d) Domicile---
(e) Taking the oath of nationality
172. The website of the Pakistan Ministry of Information and Broadcasting provides information on the different categories of people eligible to receive Pakistani citizenship and the documents required to apply for it. Among the various categories are “[f]oreign ladies married to Pakistani nationals.”[54] The website also states that application forms can be submitted to the Directorate General Immigration & Passports Islamabad or its RPO (Regional Passport Offices) at Lahore and Karachi or in the offices of the Commissioner of other Districts in Pakistan.[55] From the details before the Tribunal concerning the applicant, the Tribunal does not see any impediments legally, which would restrict or prohibit the applicant if she and her husband wished, to make an [application] as is prescribed by the law to become a Pakistani citizen and that citizenship would be granted to her. The Tribunal finds that it does not accept that there is a real chance that the applicant will be persecuted for reasons that she was a former Indian national who had married a Pakistani national and converted to Shi’a Islam by being denied the opportunity to apply for Pakistani citizenship if she desired to do so if she returns to Pakistan now or in the reasonably foreseeable future.
(iv)The applicant’s spouse’s legal right concerning the acquisition of Indian citizenship
[54] The list of documents which they require to provide in addition to those requested in the Application Form, see website, Ministry of Information Technology and Telecommunications,
[55] Also, see the Pakistan Citizenship Act, 1951 (II of 1951).
173. The Tribunal noted that the applicant in her claims for protection submitted to the Department claimed that “her husband and [children] can never become Indian citizens…” The country information referenced by the Tribunal does not support the applicant’s conclusions about her family members not being able to apply for Indian citizenship if they desired to become Indian citizens.
174. Indian nationality law details the conditions by which a person holds Indian nationality. The two primary pieces of legislation governing these requirements are the Constitution of India and the Citizenship Act, 1955.
175. All persons born in India between 26 January 1950 and 1 July 1987 automatically received citizenship by birth regardless of the nationalities of their parents. Between 1 July 1987 and 3 December 2004, citizenship by birth was granted if at least one parent was a citizen. Individuals born in the country since then receive Indian citizenship at birth only if both parents are Indian citizens, or if one parent is a citizen and the other is not considered an illegal migrant. Foreigners may become Indian citizens by naturalisation after residing in the country for at least 12 years and renouncing any previous nationalities. Members of certain religious minority communities from neighbouring countries qualify for a reduced residence requirement of six years. Indian citizens who permanently settle in Pakistan or Bangladesh, or voluntarily acquire foreign citizenship automatically lose Indian citizenship.
176. Therefore, the Tribunal finds that it does not accept that there is a real chance that the applicant’s husband and [children] will be persecuted by being denied Indian citizenship if they applied for it in India or if they desired to do so if they wished to join the applicant in India now, or in the foreseeable future provided, they first agree to renounce their Pakistani citizenship as required by India’s nationality law.
177. Having considered all the claims, both individually and cumulatively, the Tribunal is not satisfied on the material before it that the applicant has a real chance of serious harm and persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act if she returns in foreseeable future to India.
178. Therefore, the applicant is not a ‘refugee’ as defined in s.5H of the Act.
179. Accordingly, the applicant does not have a well-founded fear of persecution and does not satisfy s.36(2)(a) of the Act.
COMPLEMENTARY PROTECTION considered
180. Having concluded that the applicant does not satisfy s.36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s.36(2)(aa). The Tribunal has considered 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 the applicant will suffer significant harm. The Tribunal notes that it made real risk of serious harm findings based on the applicant’s religion and made considerable adverse findings on credibility about the applicant’s claims regarding past harm and harassment incidents by the applicant’s family members and Indian police and Pakistani border officials and fears of being victimised by the state authorities based on the applicant’s claims, considered individually and as well as cumulatively, that the applicant, as a necessary and foreseeable consequence of being removed from Australia to her county India, will face a real risk of significant harm cumulatively. Therefore, the Tribunal does not accept that the applicant has endured or will endure any discrimination or come under particular attention from the authorities for her willing conversion from Hinduism to Shi’a Islam or because (without coercion) married a Pakistani national (for the reasons stated above in this decision) or harm in her personal life of which the applicant complained, even if viewed cumulatively, amounting to ‘significant harm’ as defined in s.36(2A) of the Act.
181. Further, in the material provided to the Tribunal prior to the hearing and subsequently, the applicant referred to attacks on women that had married spouses of a different religion and nationality, and feared that the authorities both the Central government and in the States, were contemplating Anti-Conversion Laws in order to outlaw conversions from Hinduism to other faiths. Indeed, the Tribunal accepts that Anti-Conversion Laws have been enacted in Haryana state and Uttar Pradesh state and have been considered a possibility also for the applicant’s home state of Maharashtra. However, the Tribunal noted that the applicant’s circumstances (her conversion) and marriage to her Pakistani national spouse (and Shi’a Muslim) was not caused by ‘misrepresentation, use of force, threat, undue influence, coercion, allurement or by fraudulent means’[56] as contemplated by the Anti-Conversion Laws but by her own free will and consent. The Tribunal finds that there are no substantial reasons for believing that, as necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will suffer significant harm from the police, intelligence or judiciary, or other authorities or anyone else for reasons of her religion, religious conversion, or her gender.
[56] See, references to the wording of the Anti-Conversion Legislation as proposed to be enacted in India’s various state jurisdictions earlier outlined in this decision: in particular, see paragraphs [150] to [153].
182. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is no real risk she if she is returned to India will suffer significant harm of any of the reasons as the applicant claimed and therefore, the Tribunal concludes and finds that it is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
CONCLUSION
183. For the given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(1)(a). Therefore, the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
184. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary criterion in s.36(2)(aa) and is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
185. 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) of the Act.
DECISION
186. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
MemberATTACHMENT - 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.
…
Details- AGLC
- 1900931 (Refugee) [2023] AATA 3528
- Case
- [2023] AATA 3528
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for a protection visa by a woman from India. The applicant claimed she converted from Hinduism to Shia Islam upon marrying her Pakistani husband and that she could not live in India due to threats from her family and community, as well as the social unacceptability of an Indian woman marrying a Pakistani man. She also claimed she could not live in Pakistan due to persecution and threats from religious groups and neighbours, and that Pakistani authorities had been unhelpful and harassing. The case was heard by the Tribunal.
The central legal issues before the Tribunal were whether the applicant met the criteria for a refugee under the Act, and if not, whether she was entitled to complementary protection. This required the Tribunal to assess the real risk of significant harm the applicant might face if returned to India, considering the availability of protection from Indian authorities. The Tribunal also had to consider the applicant's claims regarding persecution in Pakistan and the specific circumstances of her mixed-faith marriage and conversion.
The Tribunal considered the applicant's claims in light of the evidence, including country information reports. It applied the principle that a real risk of significant harm is not taken to exist if the applicant could obtain protection from the country's authorities, such that the risk is reduced to something less than a 'real risk', as per *MIAC v MZYYL* [2012] FCAFC 147. The Tribunal also had regard to Ministerial Direction No. 84, the 'Refugee Law Guidelines', and 'Complementary Protection Guidelines'. After reviewing the applicant's background and claims, the Tribunal concluded that the decision under review should be affirmed.Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The applicant made the following claims which are summarised as follows: §The applicant left India to work in [Country 1] where she met and married her husband. §The applicant claims she converted to Shia Islam when she married her Pakistani husband. §The applicant claims her husband lost his work in [Country 1] in 2013 and was forced to return to Pakistan with their [specified children]. §The applicant claims that she cannot live in Pakistan as she will be persecuted there.§The applicant claims that she and her husband cannot live in India because she converted from Hinduism to Shia Islam. She claims she has received threats on her life from family members and it is also unacceptable for an Indian woman to marry a Pakistani man. §The applicant claims that her husband and children can never become Indian nationals and she can never become a Pakistani national. §The applicant claims that every time she visited her family in Pakistan, she received threats from local religious groups and their neighbours in Pakistan are completely against their marriage. §The applicant claims that if she returns to India she will be killed by her own family or members of the community who know that she is a Muslin convert and married to a Pakistani man. §The applicant claims that on her last visit to Pakistan a group of armed men fired shots at their house, and they received threats by mail and via telephone. §The applicant claims that on every visit to Pakistan she was interrogated and harassed by the security office and officers from the local police station as to the reason for her visit. §The applicant claims that her husband went to the police in Pakistan seeking assistance, but they refused to help. §The applicant claims that they relocated to Lahore but again the authorities were unhelpful, and her visa stated that she would be living in a different city so she went back to [Country 1]. §The applicant claims that the Pakistani police continuously ask her husband where she is.§The applicant claims there is no state protection in India. §The applicant claims that she cannot relocate in India as members of her family are involved in politics and have influence on the local police who could locate her. The applicant claims that whenever she goes people would know she is a Muslim convert.§The applicant claims that Shia are a minority in Pakistan and oppressed by the Sunni.EVIDENCE BEFORE THE TRIBUNAL The Tribunal has before it a range of material, including the following relevant documents: ·The applicant’s protection visa application Form completed and signed on 29 January 2015, lodged on 30 January 2015 (“visa application”); ·The applicant’s identity documents being a certified copy of a (India) Passport;·The protection visa decision record (“delegate’s decision record”) of 16 June 2016;·The review application Form which included a copy of the delegate’s decision record;·Documents provided to the Tribunal on the Tribunal’s file;·Country information from the applicant’s submissions and other sources discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) most recent Country Information Report on India, published on 15 July 2015. Country of reference/receiving countryDecision
Reasons for decision
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Applicant’s Background The applicant is [an age]-year-old female from the city of Mumbai, province of Maharashtra, India. The applicant is of the Shia Muslim faith (having converted from being a Hindu upon marriage), is of Indian ethnicity and speaks Marathi, Hindi and English. The applicant is married with a husband and [specified children] all of whom reside in Pakistan. The applicant married [in] January 2004 in [Country 1]. The applicant attended and completed [school level] in Mumbai, [between specified years]. The applicant obtained a [Qualification 1] from [a named] College in [year]. From June 1994 to July 1999, the applicant worked in [Industry 1] in Mumbai. From September 1999 to October 2014 the applicant worked in [Industry 1] in various [business 1s] in [Country 1]. Since November 2014 she claimed she has been without employment. From September 1999 to October 201, the applicant travelled extensively between Mumbai, [Country 1], [Country 2] and Sialkot in Pakistan. The applicant returned to India for three weeks in August 2011 and again for a week in October 2014. The applicant arrived in Australia [in] November 2014 under passport [number], issued [in] 2007 and expiring [in] 2017. The applicant was granted a subclass 600 Tourist visa on 23 October 2014 which expired on 3 February 2015 The applicant applied for a protection visa on 30 January 2015. The Applicant’s Department File The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision. The Applicant’s claims for Protection The applicant made the following claims which are summarised as follows: §The applicant left India to work in [Country 1] where she met and married her husband. §The applicant claims she converted to Shia Islam when she married her Pakistani husband. §The applicant claims her husband lost his work in [Country 1] in 2013 and was forced to return to Pakistan with their [specified children]. §The applicant claims that she cannot live in Pakistan as she will be persecuted there.§The applicant claims that she and her husband cannot live in India because she converted from Hinduism to Shia Islam. She claims she has received threats on her life from family members and it is also unacceptable for an Indian woman to marry a Pakistani man. §The applicant claims that her husband and children can never become Indian nationals and she can never become a Pakistani national. §The applicant claims that every time she visited her family in Pakistan, she received threats from local religious groups and their neighbours in Pakistan are completely against their marriage. §The applicant claims that if she returns to India she will be killed by her own family or members of the community who know that she is a Muslin convert and married to a Pakistani man. §The applicant claims that on her last visit to Pakistan a group of armed men fired shots at their house, and they received threats by mail and via telephone. §The applicant claims that on every visit to Pakistan she was interrogated and harassed by the security office and officers from the local police station as to the reason for her visit. §The applicant claims that her husband went to the police in Pakistan seeking assistance, but they refused to help. §The applicant claims that they relocated to Lahore but again the authorities were unhelpful, and her visa stated that she would be living in a different city so she went back to [Country 1]. §The applicant claims that the Pakistani police continuously ask her husband where she is.§The applicant claims there is no state protection in India. §The applicant claims that she cannot relocate in India as members of her family are involved in politics and have influence on the local police who could locate her. The applicant claims that whenever she goes people would know she is a Muslim convert.§The applicant claims that Shia are a minority in Pakistan and oppressed by the Sunni.EVIDENCE BEFORE THE TRIBUNALRatio Decidendi
Legal Principle Established
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.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 issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Applicant’s Background The applicant is [an age]-year-old female from the city of Mumbai, province of Maharashtra, India. The applicant is of the Shia Muslim faith (having converted from being a Hindu upon marriage), is of Indian ethnicity and speaks Marathi, Hindi and English. The applicant is married with a husband and [specified children] all of whom reside in Pakistan. The applicant married [in] January 2004 in [Country 1]. The applicant attended and completed [school level] in Mumbai, [between specified years]. The applicant obtained a [Qualification 1] from [a named] College in [year]. From June 1994 to July 1999, the applicant worked in [Industry 1] in Mumbai. From September 1999 to October 2014 the applicant worked in [Industry 1] in various [business 1s] in [Country 1]. Since November 2014 she claimed she has been without employment. From September 1999 to October 201, the applicant travelled extensively between Mumbai, [Country 1], [Country 2] and Sialkot in Pakistan. The applicant returned to India for three weeks in August 2011 and again for a week in October 2014. The applicant arrived in Australia [in] November 2014 under passport [number], issued [in] 2007 and expiring [in] 2017. The applicant was granted a subclass 600 Tourist visa on 23 October 2014 which expired on 3 February 2015 The applicant applied for a protection visa on 30 January 2015. The Applicant’s Department File The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision. The Applicant’s claims for Protection The applicant made the following claims which are summarised as follows: §The applicant left India to work in [Country 1] where she met and married her husband. §The applicant claims she converted to Shia Islam when she married her Pakistani husband. §The applicant claims her husband lost his work in [Country 1] in 2013 and was forced to return to Pakistan with their [specified children]. §The applicant claims that she cannot live in Pakistan as she will be persecuted there.§The applicant claims that she and her husband cannot live in India because she converted from Hinduism to Shia Islam. She claims she has received threats on her life from family members and it is also unacceptable for an Indian woman to marry a Pakistani man. §The applicant claims that her husband and children can never become Indian nationals and she can never become a Pakistani national. §The applicant claims that every time she visited her family in Pakistan, she received threats from local religious groups and their neighbours in Pakistan are completely against their marriage. §The applicant claims that if she returns to India she will be killed by her own family or members of the community who know that she is a Muslin convert and married to a Pakistani man. §The applicant claims that on her last visit to Pakistan a group of armed men fired shots at their house, and they received threats by mail and via telephone. §The applicant claims that on every visit to Pakistan she was interrogated and harassed by the security office and officers from the local police station as to the reason for her visit. §The applicant claims that her husband went to the police in Pakistan seeking assistance, but they refused to help. §The applicant claims that they relocated to Lahore but again the authorities were unhelpful, and her visa stated that she would be living in a different city so she went back to [Country 1]. §The applicant claims that the Pakistani police continuously ask her husband where she is.§The applicant claims there is no state protection in India. §The applicant claims that she cannot relocate in India as members of her family are involved in politics and have influence on the local police who could locate her. The applicant claims that whenever she goes people would know she is a Muslim convert.§The applicant claims that Shia are a minority in Pakistan and oppressed by the Sunni.EVIDENCE BEFORE THE TRIBUNAL