1900931 (Refugee)

Case [2023] AATA 3528

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 2

CASES

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 51

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 June 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. 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…

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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

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Background

Background to the litigation

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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 country

Decision

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 TRIBUNAL

Ratio 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