1912702 (Refugee)

1912702 (Refugee) [2024] AATA 3624 (22 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW: Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANTS: [Name] (‘wife’)
[Name] (‘husband’)

APPLICANT’S REPRESENTATIVE: Unrepresented
CASE NUMBERS: 1912702 & 1912703

COUNTRY OF REFERENCE: India
MEMBER:Kate Chapple
DATE:22 July 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the wife a protection visa.
The Tribunal affirms the decision not to grant the husband a protection visa.

Statement made on 22 July 2024 at 8:04am
CATCHWORDS
REFUGEE – protection visa – India – land dispute – attack on home – detention – fear of killing – state protection – period of unlawful residence – land mafia – delay in applying for protection – return visits to India – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 425, 499
Migration Regulations 1994, Schedule 2
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.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application lodged 27 September 2018 setting out the wife’s claims, also relied on by the husband (spelling and grammatical errors not corrected), as follows:
1.1.[reason wife left India] My parents had a fight in the village with land mafia and they have threatened that whenever I will go back they will kill me.
1.2.[harm experienced by wife in India] No.
1.3.[reason wife didn’t relocate in India] No, as I was already living in Australia on a student visa at that time.
1.4.[what wife thinks will happen to her if she returns to India] I think me and my spouse will be killed.
1.5.[reason wife thinks she’ll be harmed or mistreated if she returns to India] As I know that they have done this before to somebody in their village earlier and no one has caught them even police is also scared from those people.
1.6.[reason wife thinks Indian authorities won’t protect her] I don’t so they can protect us.
1.7.[reason wife thinks she can’t relocate within India] They have their mens everywhere as they were politically very strong and know persons in Central Ministry.
Decision records both dated 8 May 2019 relating to the delegate’s refusal decisions, provided by the applicants to the Tribunal.
Departmental case file relating to the applicants.
Application for review
Two (2) applications for review lodged 22 May 2019 by the wife and the husband respectively.
The Tribunal wrote to the wife inviting her to attend a hearing on the morning of 19 July 2024 and to provide pre-hearing submissions.
The Tribunal wrote to the husband inviting him to attend a hearing on the afternoon of 19 July 2024 and to provide pre-hearing submissions.
Prior to the hearing, the wife and husband requested in writing that their hearings be held together, to which the Tribunal agreed. The applicants did not provide any pre-hearing submissions.
The Hearing
The applicants appeared before the Tribunal at a hearing conducted in person on 19 July 2024. They were unrepresented.
The wife gave evidence, summarised by the Tribunal as follows:
9.1.The wife was born in [specified year] in the village of [Village 1], Punjab where she grew up with her parents and older brother. It is a small village where most people work in agriculture and farming. Her father worked for a village [business] and her mother was a housewife who also looked after [animals] and grew crops on a small farm they had near the village. Her father died in 2009. Her mother continued to work on the farm until she died in 2021. Her brother left India in 2004 to live in [Country 1]; he works in a [business]. The wife completed a [specified qualification] in [year] and in the same year met her husband through his uncle who lives in her village. Her husband and his family lived and had a farm in the village of [Village 2], not far away. They married in 2007.
9.2.The wife and husband decided to come to Australia, so she could study, and they would have a better future than farming in India. They travelled between Australia and India on a number of occasions between 2008 and 2014. The wife studied in Australia during these years, and they both worked. Their son was born in India in [year] he has never lived in Australia. Their daughter was born in Australia in [year] where she spent her first six months. Both children, now aged [respective ages], live with the husband’s parents (who are aged over [age]) in [Village 2] and have been in their care for most of their lives. The wife and husband provide financial support to the children from their earnings in Australia. Sometimes the wife’s mother would provide some support to the wife and husband, but the mother also had to look after herself.
9.3.There was conflict happening in India over her parents’ farmland. She can’t remember when it started, maybe 2010 or 2011; later, she said it had always been going on. After the wife’s father died in 2009, her paternal uncle and aunt tried to claim the farmland from her mother. They saw the mother as an easy target given the father had died, and the wife and her brother were out of the country. The uncle and aunt claimed their father loved the wife’s mother more and got more land; they argued they were entitled to a greater share. The mother wanted to give the land to the wife; the uncle and aunt weren’t happy.
9.4.When the wife and husband last visited India in 2014, the uncle and aunt hired people with swords and sticks to surround the mother’s house. The wife and mother were inside the house. The wife then took her mother to safety at her husband’s parents’ house half an hour away by car, where their children were also living. Her mother stayed there for about a week, but the wife and husband returned to Australia after a couple of days. The mother told the wife to go back to Australia to save her life. The wife and husband couldn’t stay in India because they couldn’t support the children there, they could only do farming which doesn’t earn enough money.
9.5.The mother filed a case against the uncle and aunt with the police; the police weren’t helpful, they only took a statement. The wife couldn’t get a copy of the statement.
9.6.The wife’s mother told the wife the uncle and aunt had hit her with sticks previously; but usually the mother didn’t tell the wife what they had done to her. Her mother tried in the past to report these incidents to police, but no one wanted to help; the village people were so scared they didn’t want to get involved.
9.7.The uncle and aunt brought court proceedings against the mother to claim a greater share of the farmland. The wife doesn’t know when the proceedings started, sometime after 2014. She doesn’t have any of the court documents; she asked her mother, but her mother wasn’t well educated. Her brother sent money from [Country 1] to pay for the mother’s lawyers. She spoke to her brother last week. Her brother is very busy; she didn’t ask him about the court documents. She later said she had asked him about the court documents; maybe they are back home. The brother is still waiting to be advised of the next hearing date. Her mother attended hearings when she was alive; nothing happened, another date was set. She is not in contact with the lawyers.
9.8.The Tribunal asked the wife what land her mother owned in India. The wife said the land where her house is and the farmland, both of which remain, and that her mother had never sold any land in India. The Tribunal put to the wife, in accordance with s 424AA of the Act, the following information from a review matter before the Tribunal in 2012 relating to a student visa application:
·That the mother had in 2008 sold land and in 2010 received the proceeds of sale, the sole purpose of which was to provide the wife and her family with access to funds while she was studying in Australia, noting that the land was in the wife’s father’s name and had to be transferred into her mother’s name before the sale could be finalised.
9.9.In response, the wife said the land had been owned by her mother’s parents and had been passed down to her mother and brother. It was located in [Village 3], about 40 minutes’ drive from [Village 1]. The mother’s brother had farmed the land, then it was sold for the wife’s benefit. She said hadn’t thought of this land when questioned because it wasn’t related to the farmland in dispute between her mother and her paternal uncle and aunt.
9.10.The wife was so scared when she visited her mother in India in 2014 that when she and her husband returned to Australia, she didn’t know what to do, it took her a year to get over what she saw in India. She had been threatened by people hired by the uncle and aunt that if she returned to India she would be killed. The Tribunal asked the wife why, if she was so scared about what had happened and about returning to India, she remained unlawful in Australia without a visa for 4 years from 2014 to 2018 when she risked during that time being caught and deported to India. The wife said she didn’t know what to do, and it wasn’t until 2018 that a friend told them about protection visas, and they applied.
9.11.The Tribunal asked the wife why she had not attended a scheduled interview in March 2019 with a departmental officer to discuss her claims for protection and why she did not provide an explanation for her non-attendance. The wife said she was so scared and didn’t have any evidence.
9.12.The Tribunal asked the wife what she thinks would happen to her if she returned to India. She said her mother-in-law tells her the fighting about the farmland is still going on; she later said her parents-in-law never go near the farmland because they can’t risk the children’s safety. Now that her parents are both dead, the land belongs to her; the aunt and uncle will try to kill her if she returns. If she goes back, that farmland is their only source of income, they only know farming in India, her husband isn’t well educated. She can’t sell the farmland and her mother’s house because both belong to her parents, and she feels they are always with her. There are land disputes in her husband’s family also. The court case is still going on; meanwhile the farmland is sitting idle.
9.13.The wife works [in] Australia. The children want to come to Australia, but they can’t get passports because one parent needs to be present in India for the passport application. The wife and husband send money every month for their support.
The husband gave evidence, summarised by the Tribunal as follows:
10.1.The husband was born in [year] in the village of [Village 2], Punjab where he grew up with his parents, uncle, and sister. [Village 2] is about a 15-minute drive from his wife’s village. His parents, also farmers, are in their fifties and the applicants’ children live with them. His sister is in India, but she has some issues, and he has no idea where she lives. He completed his schooling then helped his parents on the farm.
10.2.The wife’s mother and uncle were in a dispute about farmland that they owned together. The uncle needed to sell the front property because it was more valuable due it being located on the road. He put pressure on the wife’s mother to sell, but she refused.
10.3.The last time he and his wife went to India was in 2014, they were there for three or four weeks. When they went to his wife’s mother’s house, they were in a car and another car, carrying four or five people, chased them, and ran into their car. He and his wife didn’t stop, they kept driving. He didn’t know what they were planning, whether they just wanted to hit their car, or wanted to get them to force the wife’s mother to change her mind about selling the farmland. There was only the one incident, the car chase, and a third party sent messages to the wife’s mother that next time he and his wife wouldn’t be safe. The uncle hired people to go to the wife’s mother’s house and pressure her to change her mind. Sometimes the wife’s mother would stay with his parents.
10.4.Their children are safe with his parents because all they do is go to school and come back home and stay in the house.
10.5.There are property issues in his own family. There are too many owners arguing, there has been a court case going on for 10 to 15 years.
10.6.There’s nothing happening on the farmland, and the wife’s uncle hasn’t taken the dispute to court because it takes too long.
10.7.The Tribunal asked the husband why he remained unlawful without a visa in Australia for four years from 2014 to 2018 and risked being deported to India. He said they didn’t know what to do. In 2018, a friend told them about protection visas. He didn’t attend the departmental interview that was scheduled in March 2019 because his wife told him they were asking for documents, and they couldn’t provide documents. Because his English isn’t good, his wife told him not to attend.
10.8.If they returned to India and stayed at home with his parents, they would be safe, but they can’t stay at home because they need to work on the farmland, including sometimes at night, and maybe the wife’s uncle would try to hit them to force his wife to sell the farmland. It’s too hard to start again somewhere else in India, he is [age] now. The children go to a private Christian school; they are paying the school fees. It’s hard to be in India; there are drugs and it’s not safe. The children will be better in Australia, there’s no fighting. There are too many issues among relatives in India fighting over land. Also, farmers aren’t happy with the government in India because they have changed the rules. They just need to be safe. They can leave the land there, and maybe when the uncle dies, they can talk to the uncle’s children.
10.9.The Tribunal asked the husband if the wife’s mother had ever sold any land in India and given the money to his wife. He said this hadn’t occurred.
The Tribunal put to the wife the husband’s evidence that her uncle had not commenced court proceedings against her mother. The wife said she didn’t want to tell her husband because there was already conflict over land within his own family.
The Tribunal put to the wife the husband’s evidence that her mother had never sold any land in India and given the money to his wife. The wife said she never told her husband about that land because it came from her mother’s side of the family. Her husband’s English is not good, and he misunderstood things.
Country information
The following relevant extracts (without footnotes cited) of the DFAT Issues paper, ‘India: Land Disputes & Moneylenders in Punjab’, October 2013:
13.1.While no statistics were located specifically in relation to the number of land disputes in Punjab in recent years, sources indicate that land ownership disputes are a major issue throughout India. Forbes India reported in June 2010 that “[a] third of the 11 million civil cases pending in the lower courts involve fights over property”, and “[a]s much as 1.3 percent of the gross domestic product (GDP) is locked away in such fights”. Fuelling these property disputes is India’s chronic land shortage; BBC News reported that in 2012, India had a shortage of approximately 26 million dwellings. Furthermore, “there is a huge pent-up demand for commercial spaces and land for building factories and huge infrastructure projects such as roads, ports and power plants”. This land shortage has led to dramatic rises in property values, particularly in relation to greenfield sites near India’s rapidly growing cities (see Section 2.2). A consequence of this is that opportunists, often family members and neighbours, seek to appropriate exclusive title of such lands with the intention of selling for profit. Indian media reports indicate that these disputes can result in violence and sometimes deaths.
13.2.Sources argue that India’s various systems of land title records facilitate property disputes by failing to provide definitive records of ownership; BBC News describes India’s property title records as “opaque”, with records often “stored in inaccessible places”. According to Forbes India, there is no single land title system in India; “each state follows its own method of record-keeping”, often recorded in a local language. More problematic is the antiquated and complex nature of record keeping, resulting in inaccurate records, or no records at all; “[i]nstances of more than one person holding the papers for the same piece of land are common”, and “[t]housands of plots have no documents at all”. Such circumstances create “avenues for manipulation of records and stealing of property”.
13.3.Indian media reports commonly refer to the existence of a so-called ‘land mafia’, with strong connections to corrupt politicians, bureaucrats, and police officers. This situation exists in Punjab as much as it does elsewhere. The South Asian Post reported in September 2010 that local Punjabi media had recently publicised “several cases of land grabs by gangsters and cops, who allegedly managed to sell the properties through forged documents and impersonation in the Doaba region”. A December 2010 article in The Indian Express quotes former Director General of Police in Punjab, Chander Shekhar, who claims that there exists “a nexus of land mafia with some politicians, bureaucrats, police officers” involved in the sales of illegal properties. A May 2011 article, also in The Indian Express, reported that the personal secretary of a Punjab government minister agreed to ‘bury’ a complaint regarding the illegal sale of land near Chandigarh in return for a bribe.
13.4.While no statistics were located regarding the number of people harmed or killed in property disputes in Punjab or elsewhere in India, a survey of Indian news sources indicates that disputes over land title sometimes result in violence, including murder. Perpetrators commonly include the victim’s children, siblings, parents, and neighbours.
13.5.Persons who believe that their property was misappropriated or are at risk of harm due to a dispute regarding the ownership of property must lodge a First Information Report (FIR) with the police. Both the Indian Kanoon legal database and the Punjab and Haryana High Court database indicate that thousands of such disputes end up in the courts, with persons found guilty of misappropriation of property fined and sentenced to terms in prison. As noted earlier, across India, “[a] third of the 11 million civil cases pending in the lower courts involve fights over property”. However, a January 2013 report by BBC News stated that many of these legal cases “can take up to 25 or 30 years and can cost thousands of pounds”.
13.6.There are reports of successful arrests and prosecutions of members of the land mafia and those threatening to take others’ land. A March 2010 report stated that following a clash over a land dispute that left one person dead, police were said to have arrested 12 people. The Asian Pacific Post reported in 2008 on a recent judgment where five members of the land mafia were sentenced to prison for illegally selling five and half acres of land. Also noteworthy is a Punjab News Online report in March 2011 on the arrest of an alleged leader of the land mafia and eight members of a gang in the neighbouring state of Haryana. A police spokesman urged the people to immediately inform the police if “anyone occupied or try to occupy their land and plot illegally” and reassured that the names of complainants would be kept confidential.
13.7.More generally, corruption and incompetence remain obstacles to adequate state protection in India. The US Department of State (USDOS) reported in 2012 that in India bribes are commonly paid to secure police protection. USDOS reports that some 39,123 police officers were fined for being involved in corrupt practices between 2008 and 2010. It also cited a Transparency International report that found that 54 per cent of respondents in an Indian corruption survey admitted to paying bribes to authorities, primarily in order to gain police protection and other government services.
CONSIDERATION OF CLAIMS AND EVIDENCE

The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
Set out in the delegate’s decision record relating to the wife is the wife’s movement and visa history. She first arrived in Australia in April 2008, and returned to India in November 2008, December 2009, February 2011, February 2013 and April 2014, for periods of one to four months at a time. Whilst in Australia, she held student visas and associated bridging visas, and was without a visa, and therefore an unlawful non-citizen in Australia, from 22 August 2014 to 25 October 2018.
Set out in the delegate’s decision record relating to the husband is the husband’s movement and visa history. He first arrived in Australia in April 2008, and returned to India in December 2009 and April 2014, for periods of one month. Whilst in Australia, he held spousal visas and associated bridging visas, and was without a visa, and therefore an unlawful non-citizen in Australia, from 22 August 2014 to 25 October 2018.
With reference to the delegate’s decision record, the Tribunal notes the wife and husband were separately notified of, did not attend, and did not provide a reason for not attending a protection visa interview scheduled for 26 March 2019. On that date, the delegate tried to contact the applicants without success, and wrote to them separately seeking further information on the protection visa application, to which neither responded.
The Tribunal considers the following evidence capable of being believed and, on that basis, it is accepted that:
20.1.The wife’s father had farmland near their village of [Village 1] that had been passed down through his family.
20.2.The wife’s parents grew crops and cared for [animals] on the farmland for many years, and after her father died in 2009, her mother continued to farm the land until she died in 2021.
20.3.The wife’s parents also had their home in the village of [Village 1] where the family lived and where the mother lived until she died in 2021.
20.4.The applicants’ children live with the husband’s parents in the village of [Village 2] and have done so for most of their lives.
20.5.The wife and husband provide financial support for their children, including their private school fees, from their earnings in Australia.
The Tribunal considers the wife’s evidence in relation to the circumstances of and surrounding the claimed dispute between her father/mother and her paternal uncle and aunt over the farmland vague and lacking detail, confused, inconsistent, and at times evasive.
The Tribunal has significant concerns about the following evidence:
22.1.The wife said the dispute started in 2010 or 2011, then later said it had always been going on.
22.2.The wife said the dispute is about the uncle and aunt claiming that her father (and following his death, her mother) got an undeserved greater share of the farmland because the paternal grandfather loved her mother more, and the uncle and aunt want to reclaim their share of the farmland.
22.3.The husband said the dispute was about the uncle putting pressure on the wife’s mother to sell the more valuable parcel of farmland located at the front on the road, and the wife’s mother refusing to agree.
22.4.The wife returned to India on four occasions for extended periods in November 2008, December 2009, February 2011, and February 2013 and gave no evidence about anything occurring during those periods in relation to the dispute.
22.5.The wife said that when she and her husband went to India in 2014, the uncle and aunt hired people with swords and sticks to surround the mother’s house while she and her mother were inside. The wife said her mother told her that the uncle and aunt had hit her with sticks previously.
22.6.The wife said that after the 2014 incident she took her mother to safety at her husband’s parents’ house half an hour’s drive away from her village. The Tribunal notes that Google maps indicates that [Village 1] and [Village 2] villages are 3.1 kilometres apart and a 7-minute car journey.
22.7.The wife said her mother reported the 2014 incident to the police, and they took a statement, but weren’t helpful; and the wife couldn’t get a copy of the statement.
22.8.The wife said her mother had made previous reports to police about being hit with sticks by the uncle and aunt, however no one wanted to help.
22.9.The husband said that when he and his wife went to India in 2014, they went to his wife’s mother’s house in a car, and another car, carrying four or five people, chased them, and ran into their car, however they kept driving. The husband also said the wife’s uncle hired people to go to his wife’s mother’s house to pressure her to change her mind about selling the farmland, and a third party sent a message to his wife’s mother that next time, he and his wife wouldn’t be safe.
22.10.The wife said that she and her husband had to go back to Australia a couple of days after the 2014 incident because they couldn’t support the children in India, they could only do farming which doesn’t earn enough money.
22.11.The wife said that sometime after the 2014 incident, she can’t remember when, the uncle and aunt commenced proceedings against her mother in relation to the farmland. The wife said she asked her mother about the court documents, but her mother wasn’t well educated.
22.12.The wife said her brother sent money from [Country 1] to pay for the mother’s lawyers. She said her brother is very busy and she didn’t ask him about the court documents, then later said she had asked him, and maybe the court documents are back home.
22.13.The wife said she hasn’t contacted the lawyers about the court documents.
22.14.The husband said the uncle and aunt did not commence court proceedings against the wife’s mother. When this was put to the wife, she said she didn’t want to tell her husband about the court proceedings because there was already conflict over land in his family.
22.15.The wife said she was so scared about what she had seen in India in 2014 that she didn’t know what to do when she and her husband got back to Australia. The Tribunal notes the wife was unable to explain why, if she so feared being harmed by the uncle and aunt in India, she remained without a visa and unlawful in Australia for four years putting her at risk of deportation to India. The husband gave a similar response.
22.16.The wife’s response to the s 425AA information was that the sold land was in [Village 3] and had been passed down to her mother and brother through her mother’s family whereas the information indicated that the land had been in the wife’s father’s name and had to be transferred into her mother’s name before the sale could be finalised.
22.17.The applicants took ten years from their first arrival in Australia and four years from their last arrival in Australia to apply for a protection visa, having returned to India on multiple occasions in the intervening years.
22.18.The wife said she didn’t go to the departmental interview because she was so scared and didn’t have any evidence.
22.19.The husband said his wife told him not to go to the departmental interview because his English isn’t good, and they were asking for documents they couldn’t provide.
The Tribunal notes the wife and husband have given inconsistent evidence regarding the nature of the claimed dispute between the wife’s father/mother and her paternal uncle and aunt over the farmland. The Tribunal considers that this inconsistency undermines the credibility of their central claims for protection.
The Tribunal notes in the protection visa application, the wife claims: “My parents had a fight in the village with land mafia” and there is no reference to the claimed dispute with the uncle and aunt. The Tribunal further notes that neither the wife nor husband referred to the so-called land mafia in their oral evidence, only to people hired by the uncle and aunt. The Tribunal considers the inconsistency between the applicants’ written and oral claims undermines the credibility of their central claims for protection.
The Tribunal considers that if the dispute had been going on since 2010 or 2011 or longer, and the uncle and aunt had been previously harming and/or threatening her mother about the farmland, the wife would have sought to protect her mother on her earlier visits to India in November 2008, December 2009, February 2011, and February 2013, or would not have visited India at all for fear of harm to herself by her uncle and aunt and/or their associates.
The Tribunal considers that if there was a dispute as the wife claims, it is unlikely she and her husband would have allowed their children to continue to live with the husband’s parents in a village only a 7-minute drive from her mother’s village, a location likely to be known to the uncle and aunt and readily accessible by them and/or their associates. For the same reason, the Tribunal considers that if there was a dispute as the wife claims, it is unlikely the wife would have taken her mother to safety at her husband’s parents’ house.
The Tribunal notes the wife and husband have given inconsistent evidence regarding the circumstances of what happened during their visit to India in 2014. The Tribunal considers that this inconsistency undermines the credibility of their central claims for protection.
The Tribunal considers there is no credible evidence before it to make a finding about what, if anything, happened during the applicants’ visit to India in 2014.
The Tribunal considers the wife dissembled in her responses to the Tribunal’s questions about her mother making reports to police.
The Tribunal does not accept the wife’s mother made reports to the police about the uncle and aunt’s treatment of her.
The Tribunal considers the wife dissembled in her responses to the Tribunal’s questions about the claimed court proceedings brought against her mother by the uncle and aunt in relation to the farmland.
The Tribunal considers that if there were court proceedings brought against her mother by the uncle and aunt in relation to the farmland, and the proceedings had been on foot since sometime after 2014 and remain on foot, it is implausible that the wife did not tell her husband and/or the husband was not aware of the court proceedings.
The Tribunal does not accept there are any court proceedings in relation to the farmland, including any brought against the wife’s mother by the uncle and aunt.
The Tribunal considers the wife dissembled in her responses to the s 425AA information raising further serious questions about the overall credibility of her evidence.
The Tribunal considers it is implausible that the wife did not tell her husband and/or the husband was not aware of the sold land given that the proceeds of sale were used to support the applicants in Australia.
The Tribunal considers there is insufficient credible evidence before it to make a finding about the relationship, if any, between the sold land and the farmland and its relevance to the applicants’ claims for protection.
The Tribunal considers that if the wife and/or husband so feared being harmed by the uncle and aunt and/or their associates in India and were so scared after their 2014 visit to India, it is reasonable to expect that they would have taken steps as soon as possible on their return to Australia to investigate and apply for a visa appropriate to their claimed circumstances, namely a protection visa.
The Tribunal considers that the applicants’ failure to apply for a protection visa for at least four years, and up to ten years, and their preparedness to risk deportation to India during the four years they were without a visa and unlawful, raises serious doubts about the genuineness of the wife and/or husband’s claimed fear of being harmed by the uncle and aunt and/or their associates in India.
The Tribunal does not accept the wife and/or husband feared or fears being harmed by the uncle and aunt and/or their associates in India.
The Tribunal notes the country information and considers it is possible there was and/or is some form of dispute in relation to the farmland. The Tribunal considers however there is no credible evidence before it to substantiate a finding as to existence or nature of any dispute.
The Tribunal considers the failure by the applicants to attend their departmental interviews, and their failure to provide to the department a reason for their non-attendance or a response to the department’s subsequent invitations for further information, raises serious doubts about the genuineness of their claims for protection.
The Tribunal considers the primary motivation for the applicants coming to, remaining in, and returning to Australia from India on multiple occasions since 2008 was to establish and build a life in Australia which they believe offers a better future than farming in India.
The Tribunal considers the primary motivation for the applicants returning to Australia in 2014 was not the wife and/or husband’s fear of being harmed by the uncle and aunt and/or their associates in India, but the need to continue earning money to support their children in India.
The Tribunal considers that if the applicants returned to India, they believe their only option for earning an income is to farm the land the wife’s parents farmed, and they believe this is not enough to support the family and their children’s education.
The Tribunal does not accept the wife and/or husband face harm by the uncle and aunt and/or their associates if they return to India.
The Tribunal considers there is no credible evidence before it to support a finding that if the applicants returned to India, the wife and/or husband would be exposed to targeted treatment, by cause or nature, such as to engage Australia’s refugee or complementary protection obligations.
Application of law
The issue in this case is whether the wife and/or husband meet the refugee criterion, and if not, whether they are entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
48.1.The applicants are citizens of India and non-citizens in Australia.
48.2.The applicants’ claims do not satisfy the refugee or complementary protection criteria set out in the applicable law.
48.3.If the applicants are returned to India, there is no real chance that the wife and/or husband would be persecuted, and accordingly the wife and/or husband do not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
48.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India there is a real risk the wife and/or husband will suffer significant harm.
CONCLUSIONS
The Tribunal is not satisfied that the wife is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the wife does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the wife is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the wife satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the wife does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
The Tribunal is not satisfied that the husband is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the husband does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the husband is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the husband satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the husband does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the wife a protection visa.
The Tribunal affirms the decision not to grant the husband a protection visa.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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.

[2024] AATA 3624

22 July 2024

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