1920579 (Refugee)

Case [2024] AATA 3958

1920579 (Refugee) [2024] AATA 3958 (26 August 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1920579

COUNTRY OF REFERENCE:                   India

MEMBER:David James

DATE OF DECISION:  26 August 2024

DATE CORRIGENDUM

SIGNED:18 September 2024

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1.On Paragraph 83, replace the last word ‘India’ with ‘Australia’.

David James
Senior Member


DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1920579

COUNTRY OF REFERENCE:                   India

MEMBER:David James

DATE:26 August 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 September 2024 at 2:23pm

CATCHWORDS
REFUGEE – protection visa – India – dowry claim by Hindu wife and her family after relationship ceased – her family’s association with ruling political party – applicant disowned by parents for their protection – credibility – inconsistent claims and evidence, and documentation not provided – adverse information – wife and her parents have typical Sikh surnames – money transfers to mother during period applicant claimed not to be in contact – country information – inter-religious/inter-caste marriages and dowry claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), 5LA, 36(2)(a), (aa), (2A), 65, 411(1)(c), 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816

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 Home Affairs on 11 July 2019 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 18 October 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is…

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AGLC
1920579 (Refugee) [2024] AATA 3958
Case
[2024] AATA 3958
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse a protection visa. The applicant, an Indian national, claimed he feared persecution in India due to a dowry claim brought against him by his ex-wife and her family. He also asserted that his interfaith marriage (he being Sikh, his ex-wife Hindu) was a source of conflict, and that his parents had disowned him to protect themselves from harassment related to the dowry claim. The court was required to determine whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under the Act, or if there was a real risk of significant harm upon removal to India.

The court considered the applicant's claims in light of documentary evidence, including media articles concerning religious persecution and the misuse of dowry laws in India, and the applicant's responses to adverse information provided by the Department. Crucially, the Department's adverse information raised concerns about the applicant's credibility, noting inconsistencies in his claims. Specifically, the Department highlighted that the surnames of the applicant's ex-wife and her parents suggested they were Sikh, contrary to the applicant's assertion that they were Hindu and that the interfaith nature of the marriage was a cause of conflict. Furthermore, evidence of money transfers from the applicant to his mother during a period he claimed not to be in contact with his parents cast doubt on his narrative.

The court found that the applicant's claims were not credible due to significant inconsistencies and a lack of supporting documentation. The court noted that the applicant's explanation for the money transfers to his mother, while attempting to reconcile his contact with his parents with his claim of being disowned, did not fully resolve the discrepancy. Moreover, the court found that the applicant had not established a well-founded fear of persecution based on his religion, as he had not demonstrated any political activity related to his religious group or a real chance of facing serious harm on that basis. Consequently, the court was not satisfied that the applicant met the criteria for a refugee or that there were substantial grounds for believing he would suffer significant harm upon return to India. The decision under review was 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 issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to India they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application submitted on 18 October 2017 and the annexed copy of the applicant’s bio-data page of his Indian passport; ·A copy of the Divorce order of the Federal Circuit Court of Australia, Brisbane, dated [June] 2017 in relation to the applicant and his former wife, [Ms Kaur], this order was provided to the Department by the applicant at his interview with the Department on 20 February 2019;·Media article from the Outlook Web Bureau, dated 5 March 2018 titled, ‘Christians, Sikhs being persecuted in India believe British MP’s to take it up with Modi during Commonwealth meet’, provided to the Department at the applicant’s interview of 20 February 2019 and further lodged with the Department on 21 May 2019;·Department’s s 57 of the Act ‘Invitation to comment on information for a protection visa’ letter, dated 24 April 2019, in which the Department, in part, requested the applicant to comment, stating that: In accordance with section 57 of the Migration Act 1958, I am writing to advise you that information has been received which a delegate of the Minister considers would be the reason, or part of the reason, for refusing to grant a visa.There is information before that Department that you have made money transfers to your mother; [Ms A] on several occasions between the dates of 8 February 2018 and 14 December 2018. This raises concerns about your claim to have not been in contact with your parents for 18 months prior to your Protection visa interview on 20 February 2019. You claimed that your parents had disowned you because of the dowry claim against you.Based on credible country information regarding Indian and Sikh naming conventions, it is also highly likely that your ex-wife; [Ms Kaur], your ex-mother-in-law; [Mrs Kaur] and ex-father-in-law; [Mr Singh] identify as Sikh. This raises concerns about your claim that your ex-wife and her family are Hindu and that your interfaith marriage; you being a Sikh and she a Hindu was a cause of conflict and the subsequent false dowry claim broughtagainst you.The above information could lead to an adverse credibility finding which may result in the refusal of your visa application.You are invited to comment on the above information.·Applicant’s response to the Department’s ‘Invitation to comment on information for a protection visa’ of 21 May 2019, in which he stated, in his email that:My parents have disowned me to be safe themselves. They spent a lot of money when they sent me and my wife to Australia. In India after converting from Indian to Australian Dollars, It is a very big money. I contacted my mother and have tried my best to pay them the money they have spent on me and my wife.I still love and respect my parents and although they have disowned me, I understand why they did it. They are getting old and if someone tries to get the land and whatever they have, they did what was right for them.Regarding Indian and Sikh conventions, it is very normal for Hindus in Punjab to adopt Sikh names. Before BJP came to power, Punjab was a Sikh state and most hindus adopted sikh names, although they were Hindus. Earlier there was no major problem between Hindus and Sikhs. It was all good until BJP came to power. After these elections they have come to power again for the next 5 years and it is in their agenda to declare India as a Hindu country.I have attached a few articles for you to look. The India you see and the India that it actually is are very different.All I am requesting is allowing me to stay in Australia so they so, not lock me up. I do not ask for anything else. I am a hardworking man and need some time.·Copy of media article from Hindustan Times, dated 25 July 2018, titled ‘Indian detainees at Sheridan cite political persecution by Modi govt’, provided to the Department at the applicant’s interview and further on 21 May 2019;·Copy of media article from eSamskriti, dated July 2004, titled ‘Why was the first son made a Sikh’, provided to the Department on 21 May 2019;·Copy of media article from SBS, dated 27 February 2019, titled ‘The Dowry Trap: The untold story of male victims’, provided to the Department on 21 May 2019, and in which it was reported, in part, that:While the law was undoubtedly put in place to protect vulnerable woman from domestic violence and death, many, including even India’s Supreme Court are concerened that it is being misused by some women to intimidate or extort money from their husbands, or ex-husbands.Former Additional Advocate General of Punjab and Haryana High Court, Rajinder Goyal, says false cases are clogging up India’s legal system…Section 498A does not require women to provide evidence of abuse, and there’s a presumption of guilt until innocence can be proven. Those found guilty face up to three years in jail and the trail can take many years. The vast majority says Rajinder Goyal, end up being acquitted by the courts. I can say that after the case is put to trial under Section 498A, 80 per cent is the acquittal rate. That means, it is found that the case is not proved.The latest figures released by India’s National crime Records Bureau (NCRB) show that while the number of cases registered under Section 498A is increasing each year, the conviction rate is falling. ·Copy of media article from UCA News.com, dated 23 May 2018, titled ‘Religious persecution the new normal in India’, provided to the Department on 21 May 2019;·Copy of media article from Frontline the Hindu Dispatches, dated 23 January 2015, titled RSS and Sikhs’, provided to the Department on 21 May 2019;·The applicant’s application for review of 26 July 2019 and the annexed Decision Record of 11 July 2019;·The administrative and movement records of the Department relating to the applicant; and ·Applicant’s typewritten submission emailed to the Tribunal on 13 August 2024 and the annexed media articles titled, ‘False cases by women against husbands, in-laws need to be viewed seriously’, dated 13 July 2022 and published by the New Indian Express and SBS undated article titled ‘Family Violence, dowry and fake cases in Australia’s Indian community’, both of which were further provided to the Tribunal at the hearing. In the applicant’s emailed submission, he states (as relevant to his claims) that:1. I got married to [Ms Kaur] on [Date].2. I came to Australia in May 2015 along with my wife.3. Initially our life was good, but after some time, she started asking for a divorce. Her parents started pushing her. It all started when my wife’s mother came to visit us in Australia.4. In India, it is very common to lodge a dowry case against a husband within 7 years of marriage, and non bailable warrants are issued the husband and his family members.5. Due to the dowry case, my parents legally disowned me, so they are not harassed. They have disowned me only to save themselves.6. If I return, I will be arrested at the airport.Claims for protection

Decision

Reasons for decision

The applicant attended an interview with the Department on 20 February 2019.Delegates decision The delegate’s decision of 11 July 2019 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claimed fear of harm in India because of a dowry case having been brought against him was not credible given the inconsistencies in the applicant’s versions and the vagueness of same. As to the applicant’s religious claims the delegate while accepting that Sikhs form only 1.7% of the population found that they were the majority in the applicant’s home state of Punjab and as there was no evidence that the applicant had been politically active in supporting an independent Khalistan, he did not face a real chance of facing serious harm for reasons of his religion. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. Invitation to attend a hearing On 15 July 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 21 August 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. On 22 July 2024, the applicant emailed his ‘response to hearing invitation’ form to the Tribunal indicating that he would participate in his scheduled review hearing; that no other witnesses would be giving evidence; and, that he would be providing his submission soon. In the applicant’s typewritten submission to the Tribunal of 13 August 2024 which has been outlined in part at paragraph 16, the applicant submitted that the ‘event details’ outlined in the decision record of 11 July 2019 were incorrect. The Tribunal having reviewed the decision record notes that the information recorded in the Part 3: Migration history and identity assessment table does contain incorrect information that does not relate to the applicant in so far as his recorded arrival date in Australia; and details of purported overseas travel. However, given the information in the body of the decision record as to the applicant’s claims; adverse information; and the assessment of the applicant’s claims does not contain any incorrect information and there was no reliance by the decision maker on any of that incorrect information recorded on page one of the decision record; the Tribunal finds that the incorrect information recorded on page one of the decision was not material to the decision and as such the decision of 11 July 2019 as to the applicant is a Part 7 Reviewable Decision in accordance with the provisions of s 411 of the Act.Country information

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEIssues The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to India they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application submitted on 18 October 2017 and the annexed copy of the applicant’s bio-data page of his Indian passport; ·A copy of the Divorce order of the Federal Circuit Court of Australia, Brisbane, dated [June] 2017 in relation to the applicant and his former wife, [Ms Kaur], this order was provided to the Department by the applicant at his interview with the Department on 20 February 2019;·Media article from the Outlook Web Bureau, dated 5 March 2018 titled, ‘Christians, Sikhs being persecuted in India believe British MP’s to take it up with Modi during Commonwealth meet’, provided to the Department at the applicant’s interview of 20 February 2019 and further lodged with the Department on 21 May 2019;·Department’s s 57 of the Act ‘Invitation to comment on information for a protection visa’ letter, dated 24 April 2019, in which the Department, in part, requested the applicant to comment, stating that: In accordance with section 57 of the Migration Act 1958, I am writing to advise you that information has been received which a delegate of the Minister considers would be the reason, or part of the reason, for refusing to grant a visa.There is information before that Department that you have made money transfers to your mother; [Ms A] on several occasions between the dates of 8 February 2018 and 14 December 2018. This raises concerns about your claim to have not been in contact with your parents for 18 months prior to your Protection visa interview on 20 February 2019. You claimed that your parents had disowned you because of the dowry claim against you.Based on credible country information regarding Indian and Sikh naming conventions, it is also highly likely that your ex-wife; [Ms Kaur], your ex-mother-in-law; [Mrs Kaur] and ex-father-in-law; [Mr Singh] identify as Sikh. This raises concerns about your claim that your ex-wife and her family are Hindu and that your interfaith marriage; you being a Sikh and she a Hindu was a cause of conflict and the subsequent false dowry claim broughtagainst you.The above information could lead to an adverse credibility finding which may result in the refusal of your visa application.You are invited to comment on the above information.·Applicant’s response to the Department’s ‘Invitation to comment on information for a protection visa’ of 21 May 2019, in which he stated, in his email that:My parents have disowned me to be safe themselves. They spent a lot of money when they sent me and my wife to Australia. In India after converting from Indian to Australian Dollars, It is a very big money. I contacted my mother and have tried my best to pay them the money they have spent on me and my wife.I still love and respect my parents and although they have disowned me, I understand why they did it. They are getting old and if someone tries to get the land and whatever they have, they did what was right for them.Regarding Indian and Sikh conventions, it is very normal for Hindus in Punjab to adopt Sikh names. Before BJP came to power, Punjab was a Sikh state and most hindus adopted sikh names, although they were Hindus. Earlier there was no major problem between Hindus and Sikhs. It was all good until BJP came to power. After these elections they have come to power again for the next 5 years and it is in their agenda to declare India as a Hindu country.I have attached a few articles for you to look. The India you see and the India that it actually is are very different.All I am requesting is allowing me to stay in Australia so they so, not lock me up. I do not ask for anything else. I am a hardworking man and need some time.·Copy of media article from Hindustan Times, dated 25 July 2018, titled ‘Indian detainees at Sheridan cite political persecution by Modi govt’, provided to the Department at the applicant’s interview and further on 21 May 2019;·Copy of media article from eSamskriti, dated July 2004, titled ‘Why was the first son made a Sikh’, provided to the Department on 21 May 2019;·Copy of media article from SBS, dated 27 February 2019, titled ‘The Dowry Trap: The untold story of male victims’, provided to the Department on 21 May 2019, and in which it was reported, in part, that:While the law was undoubtedly put in place to protect vulnerable woman from domestic violence and death, many, including even India’s Supreme Court are concerened that it is being misused by some women to intimidate or extort money from their husbands, or ex-husbands.Former Additional Advocate General of Punjab and Haryana High Court, Rajinder Goyal, says false cases are clogging up India’s legal system…Section 498A does not require women to provide evidence of abuse, and there’s a presumption of guilt until innocence can be proven. Those found guilty face up to three years in jail and the trail can take many years. The vast majority says Rajinder Goyal, end up being acquitted by the courts. I can say that after the case is put to trial under Section 498A, 80 per cent is the acquittal rate. That means, it is found that the case is not proved.The latest figures released by India’s National crime Records Bureau (NCRB) show that while the number of cases registered under Section 498A is increasing each year, the conviction rate is falling. ·Copy of media article from UCA News.com, dated 23 May 2018, titled ‘Religious persecution the new normal in India’, provided to the Department on 21 May 2019;·Copy of media article from Frontline the Hindu Dispatches, dated 23 January 2015, titled RSS and Sikhs’, provided to the Department on 21 May 2019;·The applicant’s application for review of 26 July 2019 and the annexed Decision Record of 11 July 2019;·The administrative and movement records of the Department relating to the applicant; and ·Applicant’s typewritten submission emailed to the Tribunal on 13 August 2024 and the annexed media articles titled, ‘False cases by women against husbands, in-laws need to be viewed seriously’, dated 13 July 2022 and published by the New Indian Express and SBS undated article titled ‘Family Violence, dowry and fake cases in Australia’s Indian community’, both of which were further provided to the Tribunal at the hearing. In the applicant’s emailed submission, he states (as relevant to his claims) that:1. I got married to [Ms Kaur] on [Date].2. I came to Australia in May 2015 along with my wife.3. Initially our life was good, but after some time, she started asking for a divorce. Her parents started pushing her. It all started when my wife’s mother came to visit us in Australia.4. In India, it is very common to lodge a dowry case against a husband within 7 years of marriage, and non bailable warrants are issued the husband and his family members.5. Due to the dowry case, my parents legally disowned me, so they are not harassed. They have disowned me only to save themselves.6. If I return, I will be arrested at the airport.Claims for protection