2010093 (Refugee)

[2023] AATA 4018

2010093 (Refugee) [2023] AATA 4018 (30 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

LEGAL PRACTITIONER: Mr Lorenzo BOCCABELLA

CASE NUMBER:  2010093

COUNTRY OF REFERENCE:                   India

MEMBER:Mr S Norman

DATE:30 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 30 August 2023 at 3:35pm

CATCHWORDS

REFUGEE – protection visa – India – Federal Circuit Court remittal – particular social group – mixed caste marriage – divorce and re-marriage – kidnapping – honour killing – residence in Nepal – anti-Indian sentiment in Nepal – state protection – internal relocation – decision under review remitted

LEGISLATION

Administrative Appeals Tribunal Act, ss 2A, 24Z
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 420, 422, 425, 499
Migration Regulations 1994, Schedule 2

CASES

Randhawa v MILGEA (1994) 52 FCR 437

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act). The applicants who claim to be citizens of India, applied for the visas on 14 August 2013 and the delegate refused to grant the visas on 28 February 2014.

2. The Department delegate’s decision was lodged with the Tribunal.

3. On 22 October 2014, a prior Tribunal had affirmed the delegate’s decision (#1405203). However, by subsequent Court order dated [in] May 2020, that Tribunal decision was set aside as the invitation under s.425 was not meaningful. It was determined that the applicants were not provided with a real opportunity to present their case. That was because it was said to be not ‘necessarily sufficient for the Tribunal to raise the Nepal issue (for the first time) orally at the hearing’, and the applicants were not advised they might apply for an adjournment to provide further submissions.

4. The applicants ([named]) appeared before the Tribunal on 29 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A]. The applicants were represented in relation to the review by their agent.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   Refugee criterion

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

19. 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.

    Member of the same family unit

20. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations.

21. The applicant husband (hereafter the applicant) and the applicant wife were married in Australia [in] July 2013 (Australian Certificate of Marriage dated [in] July 2013 was lodged). The Sikh applicant was from Amritsar, Punjab (far north, north/west India) and the Sikh applicant wife was from the Punjab (north/west India). A NSW birth certificate was also lodged, referring to the birth of the applicants’ son ([named]) on [date]. The applicant and his wife were listed as the biological parents of the applicant son.  

22. After considering the evidence, the Tribunal accepts the applicant wife and the applicant son, are members of the same family unit as the applicant. Therefore, they are members of the same family unit as provided for in s.5(1) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The request to vacate the hearing scheduled for 15 June 2022:  

24. Amongst other things, by agent letter dated 7 June 2022 from a Mr Lorenzo Boccabella (Barrister), after requesting a prior hearing be rescheduled, it was stated (words to the effect):

    The migration agent would need to prepare the applicants for the Tribunal hearing day; that ‘public trust and confidence in the decision making of the Tribunal’ (referring to s.2A of the ‘Administrative Appeals Tribunal Act’) would be best served if the applicants had unencumbered access to their (long-standing) counsel of choice; and that the Tribunal may not be able to act fairly (pursuant to s.422B of the Migration Act) without Mr Boccabella being present

25. The Tribunal notes the Migration and Refugee Division (MRD) of the AAT, is not bound by s.2A of the ‘Administrative Appeals Tribunal Act’.[1] It is bound by s.420 of the Migration Act 1958, which provides some similar obligations, though importantly, without express reference to the obligation of ‘promoting public trust and confidence in the decision making of the Tribunal’. Be that as it may, the Tribunal will endeavour to achieve this goal none-the-less.

    [1] See s.24Z of the Administrative Appeals Tribunal Act 1975.

26. That being said, and as noted above, the hearing in this case eventually proceeded on 29 August 2023.

    The applicants’ receiving country:

27. With the Department, the applicant lodged a photocopy of the bio-data page of his passport (expiry date: [in] 2020); and a photocopy of the bio-data page of the applicant’s wife’s passport (expiry date: [in] 2020). Regarding the applicant son, his passport was lodged at the Tribunal hearing (expiry date: [in] 2019). Based on this evidence, the Tribunal accepts the applicant, the applicant wife and the applicant son are citizens of India, and that India is their receiving country.

28. Further, the information before the Tribunal has satisfied it that Indian passports may be renewed in Australia.[2]  

    [2] See ‘Indian passport renewal’, How to renew Indian passport in Australia (nadhi.com.au) , accessed 3 May 2022.

    The applicants’ migration and visa history:

29. The applicant wife arrived in Australia on a Student visa [in] June 2008 (with her first husband). The applicant arrived in Australia [in] June 2008 on a [Student] visa (independent to his now wife).

30. The delegate noted the applicant arrived in Australia [in] June 2008, but only lodged his Protection visa application on 14 August 2013 (which application included the applicant wife – and the applicant son was born prior to the Department decision). Also, that the applicant and applicant wife had lived in a de facto relationship since 4 April 2010 and they had married in Australia [in] July 2013.

31. Given the applicant and applicant wife had commenced living together on 4 April 2010, at which time the threats from India (discussed below) were said to have began, the applicant was asked (by the delegate) why he did not lodge his Protection visa application sooner than he did?  The applicant was then recorded as claiming he did not want protection back then.

32. The delegate also noted that when the applicants’ uncle had returned from India two years before the Department interview (conducted on 21 January 2014), and at which time the uncle had advised the applicants of the harm that may await them in India, the applicant could have then lodged the Protection visa. The applicant said he did not lodge a Protection visa, as his (now) wife held a valid Student visa at the time. When his wife subsequently became pregnant, she had applied for a Subclass 457 visa but it was refused. The agent then advised them to lodge a Protection visa.

33. The Tribunal accepts it plausible the applicants may not have lodged a Protection visa sooner, as they believed they might pursue permanent residence in Australia through the Student/Business visa process.

    The Tribunal’s consideration of material claims:

    Section 36(3)-(5A) of the Act:

34. The prior Tribunal relied on the applicants’ ability to find protection in Nepal (see s.36(3)-(5A) of the Act). The applicant had claimed he could not safely reside in Nepal, that he and his wife had never been to Nepal, they had no connections in Nepal, and they may not therefore find work in Nepal. He said that in the last 15 years (at the time of the Tribunal hearing), they had not travelled outside Australia.

35. Regarding the Nepal India Friendship Treaty, the country information stated:

    3.10 India and Nepal have encouraged the free movement of people and goods and close cooperation on matters of defence and foreign affairs since the Treaty of Peace and Friendship was signed between the two countries in 1950.

    …..

    5.35 Indians living in Nepal are able to participate in Nepali society and enjoy the same rights as Nepalis, with the exception of being able to join the Nepali public service. The border is open and Indians may freely come and go from Nepal …[3]

    [3] DFAT COUNTRY INFORMATION REPORT NEPAL 1 March 2019.

36. Regarding education in Nepal, the country information stated:

    2.27 Education outcomes are highly variable in rural areas, with poverty, remoteness, unrepaired earthquake damage, and poorly-funded facilities creating on-going barriers to education access, most notably for girls and children from Dalit communities. These factors are exacerbated by practices such as child labour, early marriage and caste discrimination, which may disrupt children’s, especially girls’, education …

    2.28 While primary education has been free and compulsory since the early 1990s … [p]arents are often required to pay fees or other costs associated with textbooks, uniforms, meals and other educational materials…[4]

    [4] DFAT COUNTRY INFORMATION REPORT NEPAL 1 March 2019.

37. Regarding health, the country information stated:

    2.20 Nepal’s health sector is challenged by the country’s widespread poverty, limited government funding and its remote and mountainous geography which hinders the development of appropriate health infrastructure and access to health services outside of the densely populated southern plains region. Health care services are generally considered inadequate by international standards; many hospitals do not have toilets, running water, soap or reliable electricity. Hospitals in Nepal tend to be located in urban areas and provide a much wider range of medical services than rural health centres, although the quality of health care provided in large urban centres such as Kathmandu is still variable.

    …..

    2.23 Violence against health care providers has increased throughout Nepal in recent years. Violence has included physical assault against doctors and health care providers and vandalism and property damage in hospitals. Many of these incidents have been attributed to the death of a patient, accusations of negligence, mismanagement and poor service quality on the part of health care professionals or providers.[5]

    [5] DFAT COUNTRY INFORMATION REPORT NEPAL 1 March 2019.

38. Regarding employment in Nepal, the country information stated:

    2.30 While precise numbers are impossible to gauge because of the open border with India, every year more than 4 million Nepalis travel abroad (mostly to India, but also to countries in the Persian Gulf and south-east and north-east Asia) to engage in low or no-skill and low-wage employment.

    And:

    3.84 Child labour and trafficking continues despite constitutional protections banning the practice. The United Nations Development Fund estimates that approximately 22 per cent of children aged five to 17 are working. Children may work in factories, brickworks or restaurants or be trafficked to India where they are forced to work as beggars. … [6]

    [6] DFAT COUNTRY INFORMATION REPORT NEPAL 1 March 2019.

39. Regarding security, the country information stated:

    2.41 … poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal …

    …..

    3.87 There are widespread reports of threats against businesses throughout Nepal. Threats such as coercion, extortion and forced donations, as well as kidnappings or coercion to join political parties, have been identified as the most common forms of mistreatment …[7]

    [7] DFAT COUNTRY INFORMATION REPORT NEPAL 1 March 2019.

40. Regarding Indians in Nepal, the country information stated: 

    5.35 …DFAT is not aware of any patterns of systemic discrimination against Indians in Nepal.[8]

    However:

    3.11 The overwhelming size of India comparative to Nepal can give rise to concerns about unchecked movement of Indians into Nepal, especially in the southern section of Nepal (the Terai) that is geographically contiguous with the Indian plains and where there are deep cultural links between Nepalis and Indians. Historical concerns about India’s political and economic interference in Nepal and instances of poor treatment of Nepalis in India have also given rise to anti-Indian sentiment amongst some Nepalis. The Indian state of Bihar has long been used by criminal organisations, political parties and separatist groups as a safe haven, adding to perceptions by some Nepalis about India’s interference in Nepal’s domestic affairs.[9]

    And:

    Another sore point is that the majority of Nepal’s border is unmanned, while India has strong border guards to protect adjacent Indian borders. At times, Indian security forces encroach onto Nepali lands and have even killed Nepali citizens. There are countless instances where Nepali migrant workers returning from India are extorted by Indian border guards. These incidents also serve to foster anger against India in Nepal.[10]

    [8] DFAT COUNTRY INFORMATION REPORT NEPAL 1 March 2019.

    [9] DFAT COUNTRY INFORMATION REPORT NEPAL 1 March 2019.

    [10] 5 FACTORS DRIVING ANTI-INDIA SENTIMENT IN NEPAL – THE DIPLOMAT, BY BIRAT ANUPAM, JUNE 18, 2020, ACCESSED 29 AUGUST 2023.

1. Based on the evidence it has seen, the Tribunal accepts there are substantial numbers of Indians and Nepalese who cross the border to safely live and work in both India and Nepal. In the present case however, the Tribunal notes the applicant son (DOB: [specified]) was born in, and thus far raised in, Australia. The Tribunal is aware that merely because a third country, where an applicant may reside, does not have the same social and civil standards available to those persons resident in Australia, without more, this is not necessarily enough to give rise to protection in Australia.

2. However, given the security, education and health prospects for a child in Nepal, are far inferior to those that may be available to a child who had been born and raised in Australia, and given the so-called anti-Indian sentiment, the Tribunal is satisfied the cumulative impact of such harm/s on the applicant son, would constitute serious harm.

3. After viewing the evidence, the Tribunal also accepts the applicant son would be harmed for reason of his Indian nationality in Nepal – given both his Indian ethnicity and the fact of him absorbing western culture in Australia in the nine years he had been raised and schooled here - and this would make him far more identifiable. The Tribunal also believes (and accepts) the applicant son would be far more susceptible/vulnerable to any mistreatment than his adult parents (due to his young age and lack of any real experience in south Asia). The Tribunal therefore accepts the applicant son would have a real chance of suffering serious harm for reason of his race/nationality in Nepal.

4. Accordingly, the Tribunal is not satisfied the applicants’ are prevented from being persons in respect of whom Australia has protection obligations, by virtue of s.36(3)-(5A) of the Act.

   The applicants’ caste:

5. It was claimed the Sikh applicant (DOB: [specified]) was from Amritsar, Punjab and the Sikh applicant wife (DOB: [specified]) was initially ‘from the Punjab’. In a statutory declaration dated 4 May 2022, the applicant stated:  

   ·     the applicant and applicant wife had lived in a de facto relationship since 4 April 2010 and had married in Australia [in] July 2013

   ·     the child from that union (the applicant son- DOB: [specified]), was born in Australia

   ·     the applicant’s ethnicity is Kahtri Sihk (a lower caste) – though his family did not ‘practise or believe in the caste system’; and

   ·     the applicant wife is Jat Sikh (a high caste)

6. The country information stated:

   2.12 Hindu tradition divided society into hereditary groups associated with occupation, commonly called ‘castes’. The caste system had four principal groups: Brahmin priests and teachers; Kshatriya warriors and rulers; Vaishya farmers, traders and merchants; and Shudra labourers. Each group encompassed thousands of sub-groups within a hierarchy. While Hindu in origin, caste has become a cultural phenomenon that also exists within other religions and across India’s many social, linguistic and religious communities. … 

   …..

   2.58 …local sources told DFAT discrimination on the basis of sex and gender, religious affiliation, caste, refugee status and tribe continues to occur …[11]

   [11] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

7. After having considered the evidence, and having discussed same at hearing, the Tribunal will accept the applicant’s ethnicity is Kahtri Sihk (a lower caste); and the applicant wife’s ethnicity is Jat Sikh (a higher caste).

   The applicants’ families’ objection to the marriage:  

8. At the Department interview (conducted 21 January 2014), the applicant was recorded as lodging:

   ·     A copy of his Marriage Certificate  

   ·     A copy of his wife’s divorce notification, which related to her first marriage (folios 111-113)

   ·     It was claimed the applicant wife was named in a divorce order dated [in] August 2011 in Australia (document lodged); which related to the first marriage

   ·     regarding the applicant wife’s previous husband, the wife had complained against her former husband, and the former husband’s family were also angry with the wife and are complaining to the police

   And:

   ·     A copy of an Affidavit and High Court papers about a named aunt, and her return to and kidnap and release in India (folios 103-104, 110)

   ·     A copy of a marriage extract and certificate of divorce for the named aunt (folios 105-106)

   ·     copies of assorted internet accounts of honour killings in India (folios 78-102)

   ·     a news article from March 2012 referring to a named person being jailed for their daughters kidnapping - other articles were also lodged

9. When discussed at hearing, the applicant wife said she had not contacted her first husband or his family, since around 2011. The Tribunal accepts this is correct. The applicant continued:

   ·     He had lived with his wife in a de facto relationship since 4 April 2010; they had subsequently married ([in] July 2013); and they were then expecting their first child

   ·     The applicants were now unable to return to India due to the threat that is posed to them by their families (in particular the wife’s family)

   ·     The applicant said his family was upset because his wife is a divorcee. He said the applicant wife’s family opposed the marriage because he was not from the same Ramen caste as the wife. He said it was a big issue for their families and they were ‘making a scene out of this and enmity between the families was continuing’

   ·     the applicant said he and his wife were subject to threats from both sides of the family and they feared that if they returned to India, they would be killed. He said as they were expecting a child they had to think before returning to India due to the threats

   o   At the Department interview, the applicant was recorded as claiming his wife’s family did not agree to the marriage as they were from different castes

   o   At the Department interview, the applicant was recorded as claiming his own family ‘no longer had a problem’ with his marriage to his wife

10. In a statutory declaration dated 4 May 2022, the applicant stated that prior to the marriage, he did not understand the proposed marriage ‘would be a problem’. But even before the marriage had taken place, the applicant received threatening messages from his wife’s two aunts ([named]) and one uncle in the Punjab, telling him not to marry the applicant wife due to him being a low caste. The aunts said it was a serious affront to them. The aunts said they would pay someone to kill the applicant if the marriage went ahead. The applicants nonetheless married on 4 April 2010.

11. The applicant wife also has maternal aunts, uncles and cousins in India, all of whom were living in the Punjab – though she had no contact with her father or anyone on the father’s side of the family.

12. The applicant wife also feared her family had contacts in the Indian police force. But the phone threats had not continued after the marriage because the applicant wife (then in Australia) changed her mobile phone number and email address. The applicant had not himself ever spoken to the people issuing the threats (and he had not spoken to his wife’s family since around 2010). In a statutory declaration dated 4 May 2022, the applicant also stated he had changed his mobile phone number and email address.

13. However, the applicant (and the applicant wife) feared the wife’s aunts and uncles knew the applicants had subsequently married and that one child had already arisen from their union. That was because a close relative of one of the aunts lived in Australia and though the applicants had no contact with him, he would have heard about the marriage and the child.

14. When asked why the applicant wife’s two aunts and one uncle would want to harm them, the applicant said the two aunts had raised the applicant wife, her mother having left her with them. The three of them had then felt dishonoured because the applicant wife had now married outside the caste.

15. In his PV form, the applicant continued:

    ·     The applicant wife’s family had also threatened his parents on numerous occasions. The applicant’s parents had lodged complaints (reports) with the local Indian police, however the police ‘threw away’ the complaints because his wife’s family are powerful and politically connected

    ·     The applicant said ‘honour killing’ in India had occurred ‘regularly, and that he and his wife may face the same fate’. This was because once his wife gives birth to their child, she is no longer capable of remarrying from her family’s perspective, and the only thing they could then do to the applicant and applicant wife was to harm them

16. Regarding the applicant’s family, in a statutory declaration dated 4 May 2022, the applicant stated:

    ·     in 2012, an uncle ([named]) of the applicant wife, visited the applicant’s father who then worked at [a named location]. The uncle found out where the father lived as he lived near the [venue]. The uncle and the two aunts subsequently attended the home and threatened his father and said if the applicants returned to India they would be killed. The applicant’s father told him about this incident, and the applicant believed the threat was serious

    ·     in 2016, the aunts and the uncle again travelled to the applicant’s father’s house in Amritsar and asked if the applicants had returned India. When asked if they would ever return, the two aunts and the uncle said that on their return they would be killed

    ·     in 2021, the two aunts and the uncle again visited the applicant’s father’s house. The threat to kill them was again made

17. The applicant repeated the above claims relating to the threats of the applicant wife’s family to his family, at the Tribunal hearing. The country information stated:

    3.134 India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal. However, many Indian families still prefer marriages arranged within their own religion and caste. … 

    3.135 The Special Marriage Act 1954 (SMA) is the secular marriage law in India, which enables inter-faith and inter-caste marriages … The SMA is available to all citizens who choose to marry outside their faith, and the religion of the parties to an intended marriage is immaterial under the Act. However, few people use the SMA, favouring traditional personal laws …

    And:

    3.137 Despite their legality, in practice, there is a continued and growing intolerance in Indian society to inter-caste and inter-faith marriages. Many families cut off social relations with sons or daughters who undertake such unions, while other families commit or instigate acts of violence against the person who undergoes the marriage. Communal tensions and violence can also result. …  

    …..

    3.141 Other intermixed unions perceived to be less socially accepted are those between rich and poor, and Dalit and non-Dalit Hindus.

    Though:

    3.145 … The influence of caste has declined over time, especially in cities where castes now live side-by-side, and inter-caste marriage does occur. However, caste identity remains, and last names usually indicate to what caste a person belongs.[13]

    [13] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

18. The country information also stated:

    3.121 There have been reported acid attacks and so-called ‘honour killings’ against women in India, with sulfuric acid used to disfigure and sometimes kill women and girls over family feuds, inability to meet dowry demands or rejection of marriage proposals. ‘Honour killings’ of women (purportedly to uphold the family honour) have also been carried out in cases of alleged adultery, premarital relationships, rape or falling in love against family wishes. … Most ‘honour killings’ are reportedly from the northern states where the influence of conservative Khap Panchayats over communities is greater. Although official statistics on ‘honour killings’ are not readily available, DFAT understands the practice is not widespread.

    …..

    3.138 In some parts of the country, informal social systems like the male-only Khap Panchayats (or Khaps) pass decisions and judgements on marriage, based on traditions. (DFAT understands Khap Panchayats are mainly found in Haryana and parts of Rajasthan, Uttar Pradesh, Punjab and Madhya Pradesh.) Such punishments in marriage cases include fines, social ostracism, public humiliation and expulsion from the village. Despite the Supreme Court ruling against the practice, intrusions by Khaps to stop a legal marriage between consenting adults continue. Analysts have claimed there is a lack of political will to act against Khap Panchayats given their influence over large numbers of voters.[14]

    [14] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

19. That being said, DFAT also noted: 

    3.144 DFAT assesses the treatment of people in inter-faith and inter-caste marriages varies according to the families involved. It can range from approval in some families, to disapproval, ostracism, harassment, or violence (sometimes lethal). DFAT assesses that, in most cases, couples in mixed unions will experience some form of societal and official discrimination. DFAT assesses the risk of violence that can result in death of one or both of the parties to the mixed marriage is higher in communities in which Khap Panchayats operate.[15]

    [15] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

20. After having discussed the evidence at hearing, and given the Tribunal was satisfied the applicants’ responses to material questions were both detailed and relatively spontaneous, the Tribunal will accept the applicants were recalling evidence within their personal experience. The Tribunal will therefore accept the mixed-caste applicants married (and one child had arisen from that union), and that the applicant’s family had now accepted the marriage. Both the applicants’ evidence and the country information cited herein, have satisfied the Tribunal the applicant wife’s family continued to be aggressively opposed to the marriage. The Tribunal also accepts the applicant wife’s family had travelled to the home of the applicant’s family (in Amritsar – approximately 100kms distance), to threaten the applicant’s family about the marriage, at least up to 2021.

21. After then considering the accepted evidence and the country information cited herein, the Tribunal accepts the applicants have a real chance of suffering serious harm in and around their home region of the Punjab.

22. The Tribunal will also accept the essential and significant reason for this is their having beached social mores (dishonouring the applicant wife’s family), and thus being a member of a particular social group.  

    The third aunt:

23. Regarding another of the applicant wife’s aunt (the third aunt – who was the sister of the two aforementioned aunts), it was claimed this aunt (now an Australian citizen) is in a similar situation. The third aunt married an Australian citizen without the consent of her family after arriving in Australia. The Tribunal understands this occurred in 2009. The third aunt’s family ‘bitterly opposed’ the marriage but the third aunt ‘did not listen and proceeded with the marriage’.

24. After the third aunt was married, she was asked to return to India to visit a sick grandmother. On the third aunt’s return to India, she had been ‘collected’ from the airport and taken to an unknown place and she was locked up. She was provided food but she was not able to contact anyone as her phone, wallet, jewellery and watch were taken from her. Her Australian citizen husband had tried to contact her but her family (in India) were not assisting.

25. As the third aunt’s husband (then in Australia) was unable to contact her in India and the third aunt’s family were ‘not telling him the truth’, the husband travelled to India to find her. When he went to his wife’s grandmothers, the husband was not told where his wife was and he was verbally abused and threatened, stating that both he and his wife ‘would be killed, and you will never be able to see your wife, just get lost from here etc’. The applicant said the husband could have been physically attacked however, he had visited the grandmother’s home ‘with a few people so that did not happen’.

26. The husband then contacted the police but being a local-police force they would not do anything against such an influential family and they were protecting that family. The husband then went to the Court and he was able to obtain a writ of habeas corpus forcing the police to bring the third aunt to Court. On the third aunt’s release, the court ordered the police to provide her with security until she departed India, and she was then able to return to Australia.

27. The delegate noted the applicant provided inter alia court papers as proof of the above incident. The delegate then said that even though the applicant indicated the third aunt was detained against her will, she was released and protected by police due to a court order. However, the copy of the court order (folios 103 to 104) did not match this account. The order indicated the third aunt voluntarily resided with her family and so the case was ‘disposed of’ and also, there was no additional instruction for the police to protect the third aunt. The delegate then gave no weight to the document (PDF-p.197). 

28. The Tribunal is aware that document fraud is a common criminal activity in India.[16] However, in the present case, the Tribunal is less concerned with the perceived differing accounts between the Court order and the applicants’ claims. That is because the Tribunal will accept that a more ‘euphemistic description’ might readily be used by a local Court in India in an effort to diffuse the situation, and in order not to give rise to a ‘vendetta’ involving a well-connected family.

    [16] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

29. After then having discussed this with the third aunt’s husband at hearing, the Tribunal accepts that his wife was held by family members in India, and that she was only released on the issue of a writ of habeas corpus as claimed.  

30. Next, the third aunt’s family ‘did not leave her husband alone either’. The family lodged a case against him for payment of a dowry and for kidnapping and getting married with the victim of a kidnap. The husband returned to India without knowing this case existed, he was arrested from his hometown upon his arrival and he spent some time in gaol. The husband was subsequently able to get the case dismissed from the court as he was a ‘mature and resourceful person and the cases against him were baseless anyway’.

31. When discussed at hearing, the uncle explained that he was not detained by the police but he was detained by the applicant wife’s family (for three days) and this related to the non-payment of a dowry. He was only released after the dowry was paid. Based on the country information, and after discussing this at hearing, the Tribunal accepts this is correct.

32. Next, by statutory declaration dated 4 May 2022 an uncle of the applicant wife sought to corroborate the applicant’s claims; said he was the husband of the third aunt; sought to corroborate that the marriage of the applicants was controversial; said the marriage was opposed strongly by the wife’s family, in particular the two aunts; said that he had received telephone calls from the wife’s family objecting to the wedding; said that if the applicants returned to India they would be killed; and said he believed the police are corrupt and may take money from the applicant wife’s family to construct a false case against a person. 

33. When asked about the claimed (false) charges that had been lodged against him, the applicant also referred to the uncle, that none of the charges against the uncle were true (discussed above), but he was nevertheless imprisoned. The applicant emphasised the wife’s family had contacts with the police right up to the director-general of police in the Punjab. There was also good contact with lawyers.

34. After having discussed this with the applicants and the uncle at hearing, the Tribunal accepts the applicant wife’s two aunts have shown themselves capable to harassing a third aunt who dishonoured them in a similar way to the applicant wife (though the two aunts had not apparently raised the third aunt). The Tribunal therefore accepts the third aunt was ‘kidnapped’ in the manner claimed.  The Tribunal also accepts the evidence of the applicant wife’s uncle, who provided evidence that he had received telephone calls objecting to the marriage between the applicant and the applicant wife – and that a case was lodged against him (though that case had now been resolved). After having discussed this at hearing, the Tribunal will also accept the applicant wife’s family are ‘well-connected’ as was claimed.

1. The Tribunal now accepts the applicant and the applicant wife married, and the applicant wife’s family (in particular), object to the marriage. The Tribunal will accept the applicant wife was raised by her two aunts, and the aunts feel the applicant wife had dishonoured them by marrying a man of lower caste. The Tribunal will accept the applicant’s family has been approached by members of the applicant wife’s family in the Punjab. The Tribunal will also accept this has given rise to threats to the applicant’s family in the Punjab, and threats to the applicant and the applicant wife (while they have been in Australia).

2. After then considering the accepted evidence and the country information cited herein, this is a further reason the Tribunal accepts the applicant and the applicant wife, and the applicant son, have a real chance of suffering serious harm in their home region of India (Punjab). The Tribunal will also accept the essential and significant reason for that harm is for having breached social mores (‘dishonouring the family’).

   Relocation:

3. The focus of the Refugees Convention definition is not upon the protection the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Thus, a person will be excluded from refugee protection if under all the circumstances it would be safe and reasonable to expect them to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the case.

4. Regarding whether the applicants could safely relocate within India, the country information stated:

   3.62 India has a Sikh population of 20.8 million people (2011 census). The growth rate of Sikhism declined since the 2001 census. Sikhism is the dominant religion in the state of Punjab (approximately 16 million people) with significant populations in Haryana (1.2 million), Delhi NCR (570,581), Rajasthan (872,930), Uttar Pradesh (643,500) and Uttarakhand (295,530).

   …..

   5.29 India has a long history of internal migration; however, in practice, it remains predominantly intra-state rather than interstate. The complementary rights to reside and move freely throughout India are found in Articles 19(1)(d) and (e) of the constitution. Article 19(1)(d) guarantees all citizens of India the right to move freely throughout the territory of India including from one state to another or from one place to another in the same state. …[17]

   [17] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

5. During prior discussions about relocation, the applicant was recorded as claiming that if a complaint is lodged against him and recorded on the computer systems in India, he could be traced and arrested wherever he resided. He said that he could not relocate within India as he would be arrested at the airport as his wife’s family had lodged a complaint with the police against him - and which complaint is on the computer systems in India. The applicant said he first knew about the complaint against him when the uncle returned to India two years prior to the Department interview, and after the uncle had told him. The applicant was recorded as claiming the complaint was possibly because of his inter-caste marriage.

6. When asked whether he could provide corroborating evidence of a complaint the applicant was said to have changed his story and said that he doesn’t know but the two aunts may have lodged complaints. He then said he was not able to find out whether a complaint had been lodged. The delegate noted the applicant spoke Hindi, Punjabi and English (folio 40) and he had claimed to have attained 12 years of education in India. He had worked for two years in a factory in Australia and he was able to work and reside in Australia, a country foreign to him, for over five and half years at the time of the Department decision.

7. When then asked what the complaint was about, the applicant is recorded as saying it related to an inter-caste marriage and so he would be arrested. The delegate noted there was no law criminalising inter-caste marriages. The applicant said the police were corrupt and they would create a false case and he would ‘be framed’. The applicant also feared that if he and his wife return to India, other relatives would tell the families they had returned and the two aunt’s would lodge a complaint against him as the Indian police are corrupt.

8. Be that as it may, the relevant country information has stated:

   5.39 … India does not have a centralised registration system in place to enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories. …[18]

   Though:

   3.143 Couples from rural areas who marry inter-caste or inter-faith may attempt to move to the anonymity of urban areas. However, factors that can affect couples moving to a larger city include their financial capacity, the degree to which their families have the power to find them, their educational background and employability, availability of a personal support network, and whether they appear ’visibly different’.

   3.144 DFAT assesses the treatment of people in inter-faith and inter-caste marriages varies according to the families involved. It can range from approval in some families, to disapproval, ostracism, harassment, or violence (sometimes lethal). DFAT assesses that, in most cases, couples in mixed unions will experience some form of societal and official discrimination… [19]

   [18] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

   [19] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

9. That being said, the Tribunal will accept the applicant wife’s family have shown themselves capable and willing to cause problems for the uncle, and would continue to cause problems for the applicants should they return to their home regions in the Punjab. However, the Tribunal also considered the capacity of the applicant wife’s family to trace the applicants within India, should they relocate away from the Punjab.  As well as the fact that India does not have a centralised registration system, the country information stated:

   3.67 According to information cited by the Immigration and Refugee Board of Canada (IRB), since the late 1980s, Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities. IRB notes while there can be localised discrimination, for example blocking entry to public areas or requiring the removal of articles of faith (turbans or kirpans) before sitting examination in educational programs, such issues are adequately addressed by local courts or police …[20]

   [20] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

10. The country information also stated: 

    3.142… Some report the need to remain vigilant against being found, as their extended family is ‘still on the lookout for them’. To support such couples there are limited initiatives such as Love Commandoes, Pratibimb Mishra Vivah Mandal, Dhanak of Humanity, Adhalinal Kaadhal Seiveer and Chayan which provide a mix of legal advice, counsel and shelter. In 2019, Dhanak of Humanity self-reported it had handled 2,000 cases since 2005. An analysis of roughly half their cases showed 58 per cent were inter-caste and 42 per cent were inter-faith couples.[21]

    [21] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

11. At hearing, the agent also referred to the Aadhaar Card as a means whereby persons may be traced. The country information stated: 

    5.34 The Aadhaar Card provides access to government social welfare services, benefits and subsidies … and its introduction may assist entitlement portability. However, requirements to provide details of a husband’s or father’s name can exclude single women, single women with children, and domestic violence survivors from government services and accommodation. While income tax provisions do not directly require women to use their husbands’ or fathers’ names, the Aadhaar card and passport both have this requirement.

    …..

    5.51 Application for an Aadhaar card is free and the scheme is voluntary. However, in practice, Aadhaar are entrenched in everyday Indian life. …The majority of registrations are for Indian nationals … [and s]ince September 2019, non-resident Indians can apply for Aadhaar on arrival in India, no longer requiring the 182-day waiting period to elapse.[22]

    [22] DFAT COUNTRY INFORMATION REPORT INDIA 10 December 2020.

12. However and again, as well as the fact that India does not have a centralised registration system, the country information stated:

    9.1.4 … In recent decades, with the spread of secular education and growing urbanisation, the influence of caste has somewhat declined, especially in cities where different castes live side-by-side and inter-caste marriages are becoming more common. In certain southern states and in the northern state of Bihar, many people began using just one name after social reform movements. Despite the changes though, caste identities remain strong, and last names are almost always indications of what caste a person belongs to.[23]

    [23] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

13. It therefore appeared, and the Tribunal now finds, that by using ‘the one name’ the applicants could limit to remote, if not completely avoid, the chance of being traced using Aadhaar Card data in India.  

14. In the statutory declaration dated 4 May 2022, it was also stated:

    ·     the applicants have ‘stayed in touch’ with some friends/relatives in India via social media. It was claimed that unless the applicants lived in total secrecy, which they did not believe possible in India, their whereabouts would be discovered through social media. For instance, the applicants’ whereabouts might be identified through comments in casual conversation. There is no guarantee the police can or would protect them

15. At hearing, the Tribunal noted the Refugees Convention was never intended to guarantee against relevant harm. However, in the applicant wife’s statutory declaration of 29 August 2023, it was claimed the nine year old applicant son uses social media and wherever he and the family resided in India, they may risk harm.

16. After having discussed same, the Tribunal notes that some Sikh applicants may safely relocate within India (outside the Punjab), to an area where a Sikh community exists. However in the present case, and after considering the accepted evidence, the Tribunal also finds that by doing so, they would be at risk of being located by the two aunts and or by persons associated with them, through their and the family’s networks within the Sikh communities spread throughout India. Secondly, even if the applicant and the applicant wife remained discreet on social media, and changed their telephone number, they would have to ensure the applicant son, schooled in the use of social media in Australia, did not unwittingly reveal their location. Third, the Tribunal accepts that if the applicants apply for (ie) a Aadhaar Card in order to secure government services for the applicant son, and by so doing included their full family name, this would also increase their risk of being located and harmed in the reasonably foreseeable future.

17. In the circumstances, the Tribunal finds that if the applicants relocate to an area within India, where a Sikh community already exists, they would have a real chance of suffering serious harm in the reasonably foreseeable future. The essential and significant reason for this harm, as set out above, is for reason of their membership of a particular social group.

18. When then considering whether the applicants can relocate within India, to an area where there is no Skih community, in order to reduce their chance of being harmed, the country information stated:

    3.67 …Sikhs may face difficulties integrating in areas where a Sikh community does not already exist, and may face discriminatory treatment from law enforcement and government officials for wearing the kirpan.

    …..

    5.33 The absence of informal social networks that would normally assist with accommodation, employment and informal social protection may also limit relocation. Where local language and culture is different from region of origin, Indian nationals may also face harassment and political exclusion. Multiple sources told DFAT relocation in India is not straightforward, and many cultural, socio-economic and gender based obstacles, in addition to language differences, prevail.[24]

    And:

    3.142 Practical matters such as renting property, obtaining a passport or boarding flights can be difficult for … mixed unions. …

    And:

    5.32 Inability to access social protection is a further deterrent. In practice, difficulties in procuring registration documents including proof of residency and legal tenancy can restrict internal migrants’ access to public services including health and education and social security programs. These difficulties include complicated regulations and administrative requirements, and act as a disincentive, especially for temporary and seasonal migrants…[25]

    [24] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

    [25] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.

19. Given the country information considered, and the disadvantages relating to Sikhs relocating away from established Sikh communities within India, the Tribunal is not satisfied it is reasonable for the Sikh applicants to relocate within India (and in particular for the applicant son).

20. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s.36(2)(a).

    DECISION

21. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

    Mr S Norman
    Member

    
    
    

[12] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.