2003766 (Refugee) - [2024] ARTA 560

2003766 (REFUGEE) [2024] ARTA 560 (21 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2003766

Tribunal:General Member C Wilson
Date:21 November 2024

Place:Adelaide
Decision:The Tribunal affirms the decision under review.

Statement made on 21 November 2024 at 12:14pm
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – particular social group – inter-caste marriage – mixed religious marriage – fear of honour killing – threats and visits from girlfriend’s family – delay in applying for protection – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for review to the Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal).
The applicant, who claims to be a national of India, applied for the visa on 8 June 2017. The delegate refused to grant the visa on the basis that they did not accept the applicant feared harm from his wife’s family for an alleged inter-caste marriage, and found a delay of 15 months to apply for a protection visa suggested the applicant did not have a genuine fear of persecution.
The applicant appeared before the Tribunal on 19 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
BACKGROUND
The applicant is a single Sikh man, aged in his [age range], from Haryana, India. He arrived in Australia in March 2016.
Evidence before the Department
In his protection visa application the applicant made the following claims:
·He left India because he was in an inter-caste marriage. His wife’s parents threatened to kill him because he is Sikh and she is Hindu.
·His wife’s parents are political people and are involved in the BJP Party in Haryana.
·His family are a simple family and he wanted to protect them from his wife’s parents.
·He could not move to another part of India because the BJP activists are everywhere and have connections with the police.
·The only solution to save his life was to leave India and come to Australia to attend [College 1].
·Honour killings are prevalent in parts of rural India. He fears his wife’s parents will want to kill them as soon as they land back in India.
No supporting documents were provided. Although he described himself as ‘married’ in his claims he indicated he had ‘never married’ on the visa application form at question 35 and listed his parents as his only family.
The applicant was invited to an interview with the delegate in June 2018 but did not attend.
Evidence before the Tribunal
Prior to the hearing the applicant provided a written statement to the Tribunal dated 12 November 2024.
In his written statement he says he is from a respected and well established Sikh family. He had to leave India because of a relationship with a Hindu girl from a neighbouring village. They began a relationship when he was [a teenager] and she was [a teenager also]. The relationship was frowned upon because of cultural and religious differences between their families. Her family had extensive political and social connections and influence in their area. One day he was approached by members of her family who threatened they would kill him if he did not end the relationship. He took the threat seriously. He was also worried his family would be ostracized and exiled from the community. He was subjected to harassment, intimidation and physical threats, and his family were also threatened. His parents organised to send him to Australia for safety under the pretext of attending a [college]. He was unable to contact the girl after arriving in Australia. He has no news of her and does not know if she is alive or has been forced into an arranged marriage, but he heard she was often seen crying which he assumes was because of the pain of their forced separation. He cannot return to his home in India without facing extreme danger from her family and the risk of being ostracized by his community.
At the hearing the applicant said he completed the visa application himself, but when asked his ability to read and write in English he said a friend helped him do it. He also said a friend wrote the written statement he provided to the Tribunal. He told his friend his story in Punjabi and the friend wrote it in English.
The applicant confirmed his address in India and said his parents continue to live at the same address. His father works as a farmer. He disclosed that he has two siblings: a younger sister who lives with his parents, and an older brother who lives in [Country 1]. He does not know when his brother went to [Country 1], but it was sometime after the applicant left India. He said his brother lives lawfully in [Country 1] but he does not know what type of visa he has.
The applicant maintains that the reason he left India was because of threats from a Hindu family because of his relationship with their daughter. He said this this was the only reason he fears returning to India.
The applicant said he overstayed his visa in Australia and did not apply for a protection visa until more than a year after arriving because he was young and did not know about visas.
The applicant said he met the Hindu girl in the nearby [Town 1]. They were just walking past each other and liked the look of each other. He started talking to her. Following this they would meet up in the city to see each other once or twice a week. They met just the two of them, not with other friends, and might go to a park or restaurant but there was no fixed place where they met. This lasted for about a month. He does not know her full name, and only knew her by a nickname. She also did not know his full name. She lived in a different village to him. At his last meeting with her a group of young men, who may have been her brothers and cousins, came up to him and threatened to beat him. He ran away before they could hurt him.
The applicant claims that after the confrontation in the city the girl’s family, including her parents, came to his house to threaten him. He stayed in the house whiles his parents spoke to them. Even though the girl did not know his full name or address, her family found him because in the villages everyone knows everyone. Her family threatened that if he ever saw her again they would kill him. After this he also saw her brothers/cousins in the city and they threatened him so he stopped going to school and hid at home. Since that first visit her family have been to his house ‘many times’, both before he left for Australia and since he left. He was unable to give a more specific account of the number of visits. They ask his parents where he is but his parents do not tell them he came to Australia. No-one in his family has been harmed by them or suffered any other harm.
The applicant said he has not seen the girl since the day her brothers/cousins caught them in the city. He cannot now remember the dates when this happened, but he thinks it was about three months before he came to Australia. He has not had any contact with the girl since that day, even though he tried asking friends to contact her. He does not know where she is or what has become of her.
The applicant says the girl’s family are well connected politically. Even though he does not know who her family are, he assumes that they are well connected because when his father tried to report the threats to the police the police would not help them.
The applicant believes the girl’s family still want to harm him, even kill him, because they are Hindus and cannot accept him seeing their daughter. He knows they are still interested in him because they have continued to ask his parents about him. He would not be safe in any part of India because they are well-connected and could find him anywhere.
Court remittal
A member of the Administrative Appeals Tribunal found on 14 August 2018 that the Tribunal did not have jurisdiction to consider the application because it was not lodged within the prescribed period to apply for review.
The Tribunal’s decision was set aside and the matter remitted by consent in an order dated [in] February 2020 of the Federal Circuit Court. The respondent conceded in this matter that the refusal notification letter from the Department was affected by jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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.
REASONS AND FINDINGS
For the following reasons, I have concluded that the decision under review should be affirmed.
Country of reference
The applicant claims to be a national of India and provided a copy of his Indian passport. Based on his passport, I accept he is a national of India and find India is his receiving country.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims he will be killed by the family of the Hindu girl he knew in India. Although he previously described her as his wife, he now says she was a girl he met by chance. He claims they met when he was aged [age] and she was aged [age] and would meet up in the city once or twice a week for a period of 1 month. The applicant thought this happened about 3 months before he came to Australia. The applicant turned [age] in early December 2015, and came to Australia in March 2016. If this relationship occurred, it was sometime before he turned [age] in December 2015.
I am concerned by the significant inconsistency in the applicant’s claims. In his visa application he said he was married to a Hindu girl but now says they only met up in public once or twice a week for a period of 1 month. He said the error was caused by his lack of English but I do not accept this explanation. Whoever completed the visa application form did so in fluent English. The claim that he was married does not appear to be a mere error in translation, such as using the word ‘wife’ when he meant to say ‘girlfriend’. The marriage claim is clearly stated several times in the visa application form. At question 89 he refers to ‘an inter-caste marriage’ and ‘I married a Hindu girl’. At question 90 he again mentions ‘inter-caste marriages’ and refers to the girl as his ‘wife’ twice. At question 94 he writes generally about ‘honour’ killings arising from inter-caste marriages and says the ‘girls parents are not happy with our marriage and want to kill us as soon as we land in India.’ The claim that he was in an inter-caste marriage is clearly made. Given his evidence that he was never married, the claims made in his visa application that he was married in an inter-caste marriage are clearly untrue.
The applicant relies on his written statement and oral evidence. He has not provided any supporting evidence for his claims. There are no photographs with or of the girl or any evidence of messaging between them. His oral evidence of how they met was unconvincing. He says they randomly met in the street in the city and after speaking to each other continued to meet up once or twice a week for a month. The applicant does not know her name and only knew her by a nickname. He says she also did not know his full name.
In his written statement the applicant claims he was harassed, intimidated and physically threatened by the girl’s family. When asked to provide further detail of this he referred to the ‘many times’ the family came to his family home, the time her brothers/cousins found them and threatened to beat him, and the claim that her brothers/cousins threatened him when he was on his way to school in the city, causing him to stop attending school. I note however in his visa application he said he completed school in 2014. The alleged relationship was short-lived. It consisted of meeting publicly in the city a few times over a month. He says her family threatened he must stop seeing her or they would kill him. He says he stopped seeing her. The applicant was not harmed in the many months prior to his departure from India in March 2016.
The applicant’s evidence about the number of times he or his family were visited was vague and lacked any supporting evidence from his family. He has not plausibly explained how her family even found him. I do not accept she could have told her family where to find him in circumstances where she did not know his name. He says they knew where he lived because in the villages everyone knows everyone but his evidence is also that he did not know the girl or her family before he met her. There is also nothing to suggest he knew any of her brothers or cousins or that they knew him. The claim that everyone knows everyone is also inconsistent with his evidence that he has no knowledge of what became of her, apart from saying people told him they saw her crying. If everyone knew everyone, someone could have told updated him or his family on the girl. He says the Hindu family are still coming to his family home looking for him. He says his parents have not told them he is in Australia. There is no evidence anything happened has happened to his family, either from this allegedly well connected family or in terms of being ostracized in the community. I consider it implausible the girl’s family would continue to visit his family 9 years later for a relationship that allegedly lasted only a month and that ended as soon as the pair were caught by her brothers/cousins. I also find it implausible his family would not have told them he has left the country. I do not accept anyone has been visiting and/or harassing his family or looking for him.
The applicant claims the girl’s family have significant political and religious influence in their region. When asked for more detail about this he admitted he does not know her family and did not personally know them to be an influential family. However he assumes they must be because they are Hindu and because his father tried to complain about the situation to the police and they would not help. No evidence was provided that the matter had been reported to the police. That they are a powerful family is speculation on his part and I consider it is an embellishment.
In assessing the genuineness of the applicant’s claims to fear harm from the family of a Hindu girl I have given weight to the lack of supporting evidence, the implausibility of aspects of his claims, and the embellishments as identified above. I am concerned by the significant inconsistency with what he now claims compared to his visa application, where he claimed to be in an inter-caste marriage. I do not accept the inconsistency can be explained by translation errors, and I note the applicant did not attempt to correct the record by attending an interview with the delegate or providing clarification when applying to the Tribunal for review in 2018 or in 2020 when the matter was remitted by the Court. I consider the claim that he was in a relationship with a Hindu girl and that he was threatened by her family has been fabricated for the purpose of applying for a Protection visa. It follows I find the applicant does not face a real chance of harm from the family of a Hindu girl because I do not accept the relationship or threats existed.
For these reasons I find the applicant does not have a well-founded fear of persecution. I find he does not meet the refugee criterion.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the reasons given above I do not accept the applicant was in a relationship with a Hindu girl or that he was threatened by a Hindu family. It follows I find there is not a real risk he will suffer significant harm from the family of a Hindu girl when I do not accept there was a relationship or threats.
I find there are not substantial reasons for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk the applicant will suffer significant harm.
Conclusion

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Hearing:  19 November 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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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.
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