2013579 (Refugee)

2013579 (Refugee) [2020] AATA 4984 (16 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013579
COUNTRY OF REFERENCE:                   India
MEMBER:David McCulloch
DATE:16 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 October 2020 at 11:23am
CATCHWORDS
REFUGEE – protection visa – India – fear of harm from parents of former roommate – blamed for roommate’s suicide – threats to applicant’s parents – country information about revenge killings and relocation – fear well-founded, but reasonable to relocate – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(c), 36(2), (2B)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 September 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 23 August 2020. The delegate refused to grant the visa on the basis that although there was a risk of requisite harm to the applicant in his home area in India, that risk was not present in the whole of India and it would be reasonable for the applicant to relocate to avoid the harm in his local area. The delegate did not offer the applicant an interview, but had given him the opportunity to respond in writing as to whether he could relocate within India, and whether that would be reasonable, to avoid harm in his local area.
The applicant appeared before the Tribunal on 13 October 2020 at 11am by videoconference from the detention centre where the applicant was located. The Tribunal was assisted through the use of an interpreter in the Punjabi and English languages.
CRITERIA FOR A 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 (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. The Tribunal has before it the DFAT Country Information Report – India, 17 October 2018, the contents of which were discussed with the applicant in the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant arrived in Australia [in] March 2014 as the holder of a [Visa class 1] student visa. The applicant was granted a [Visa class 2] student visa on 9 July 2014. The applicant was granted a further [Visa class 2] student visa on 29 April 2016. The applicant was granted a [Visa class 3] student visa on 15 November 2017. The applicant departed Australia [in] January 2018 and returned [in] February 2018, and the applicant states that he went to visit his parents in India. The applicant departed Australia again [in] October 2018 and returned [in] November 2018, and the applicant states that he went to see his parents and for his sister’s marriage. [In] February 2020, the applicant was convicted at the [Suburb 1] Local Court of [Charge] and was sentenced to a two-year community corrections order. On 2 June 2020, the applicant’s [Visa class 3] student visa was cancelled. The applicant was detained on 16 June 2020.
The following information is apparent from the application for protection forms. The applicant was born on [Date] in Kurukshetra, Haryana, India. The applicant is of Sikh ethnicity and religion, and speaks, reads and writes English, Punjabi and Hindi. The applicant has never married. The applicant’s mother, father and sister reside in India, the applicant’s brother in [Country], and his cousin in Australia. The applicant is in contact with his parents twice a week, his sister and brother sometimes by phone. The applicant lived at one address in [Location 1], Kurukshetra, Haryana, from birth until [March] 2014.
The applicant attended primary and secondary school, graduating from [Secondary School], [Location 2], Kurukshetra, in March 2012. The applicant completed a [Qualification 1] at the [Institution 1], Kurukshetra, from July 2012 until July 2013. The applicant then studied a [Qualification 2] at the [Institution 2], [Suburb 2], from May 2014 before graduating in November 2014. The applicant then completed [a Qualification 3] at the [Institution 2] from January 2015 until September 2015. The applicant then completed a [Qualification 4] at the [Institution 2] from September 2015 until August 2016. The applicant completed a [Qualification 5] at the [Institution 2] from September 2016 until July 2017. The applicant began studying a [Qualification 6] majoring in [Discipline] at [Institution 3] 28 August 2017, and the applicant is currently enrolled in this.
The applicant worked part-time in a [Workplace] from 1 May 2014 until 30 November 2015. The applicant then worked in a [Workplace] again from 1 January 2016 until 15 November 2018. The applicant then worked in a [Workplace] and at [Business 1] from 16 November 2018 until 20 February 2020. The applicant worked for [Business 2] from 25 February 2020 until 15 June 2020.
The applicant provided to the Tribunal a copy of the decision of the delegate, which outlines his claims and supporting information as follows (footnotes omitted):
The applicant’s claims for protection and the evidence he provided in support of his claims are contained in [File number]. The applicant’s claims for protection are summarised below:
·     He was born in Kurukshetra, Haryana, India, and is a Sikh.
·     While residing in Australia in 2019, he and his two roommates, [Mr A] and [Mr B], were charged by the police with having inappropriate material on their mobile phones.
·     One day before their court appearance, his roommate, [Mr A], committed suicide and left a suicide note. In India, the applicant’s parents travelled to [Mr A]’s family home to pay their condolences, and [Mr A]’s parents and family members accused the applicant of killing their son. They told his parents that they would kill him if he returned to India. His parents attempted to visit the home and pay their condolences a second time and again they were informed that he would be killed if he returned to India.
·     His parents attempted to lodge a complaint regarding these threats with the local police, however the police refused to accept the complaint because there was not any proof.
In addition to the PV application, the applicant has also attached a supporting statement from his father. The statement from his father reiterated the above claims and also stated that on two occasions he was approached by unknown men asking whether the applicant had returned from Australia. These men also stated that they would kill the applicant when he returned to India. His father also claimed in the statement that on another occasion unknown men asked his neighbours if the applicant had returned to India. Furthermore, his father stated that the father of [Mr A] had ruined his reputation by disseminating false news about the killing in local newspapers and that he had subsequently lodged a complaint about this with the Kurukshetra police.
In addition to the PV application, the applicant has also provided two Indian newspaper articles, with non‑NAATI English translations, which reference the death of [Mr A] in Australia and state that his family do not accept he committed suicide but rather consider his death to be suspicious.
The applicant also included a copy of the purported suicide note left by [Mr A] and written character reference from [an Organisation].
On 25 August 2020, the applicant was requested in writing to provide further information about internal relocation and his ability to reside safely elsewhere in India. The applicant responded in writing on 27 August 2020. In his written response the applicant reiterated the above claims and stated that:
·     [Mr A] used to tell him that he had relatives in many states across India including Delhi, Mumbai, Uttarakhand and Punjab. In addition, [Mr A] would inform him that his family has political connections and membership of political parties across India.
·     It is impossible for him to hide in any area of India and nowadays it is very easy to locate anyone, anywhere in the world.
·     [Mr A]’s family have threatened his family and told them that they will find him wherever he relocates to within India. The people in his village, and [Mr A]’s family, know that his visa has been cancelled and that he can be returned to India at any time. He believes that [Mr A]’s family have relatives in the detention centre who are passing information about him back to them in India.
The applicant also attached, as part of his written response, an affidavit from [Mr C] and [Mr D] stating that [Mr A]’s family have threatened to kill the applicant and that [Mr A]’s family have connections with high level political Ministers in India. In addition, the applicant also attached a newspaper article in relation to youth gang wars in India.
On 30 August 2020, the applicant also lodged a copy of a purported police complaint that was lodged by his father in India. This document reiterated the above claims in relation to his parents being threatened by [Mr A]’s family and his father being approached by unknown men asking about the applicant’s whereabouts.
The Tribunal has reviewed relevant files, and the above is an accurate representation of the applicant’s claims, subject to the following.
In his various written claims, the applicant indicates that he pled guilty in Australia to the criminal case against him. He is sorry for what occurred and has learned a lesson and will be careful in the future. The charges against the applicant have made him feel shame and disgust.
The applicant provided updated information indicating there was another incident [in] September 2020, when unknown men approached the applicant’s father [and] started pushing him around and asking about the applicant. They indicated that they will find the applicant and kill him. The applicant’s father took photographs of these people as they were leaving, and these photographs were provided to the Department.
The applicant provides different reasons why he could not relocate within India, such as to Mumbai or Delhi. The applicant refers to different languages within India. The applicant indicates that there is racism, especially for Muslims and Sikhs. The applicant referred to challenges in getting a rental property if there is no guarantor bank account or valid identity card in a local language. The applicant refers to the need to have a birth certificate from the same state that he moves to. The applicant indicates that there will be difficulty finding a rental property for a single person who is not local and from a different state. The applicant refers to not being able to contact his family by phone as his calls would be traced. The applicant refers to there being too many overqualified people who themselves do not have a job. The applicant says that his studies in Australia provide no scope for getting a job in India.
Including as indicated above, the applicant has provided the following documents to the Department:
·There is an undated letter of support from [Mr E], [of an Organisation], stating that the applicant has been a regular visitor to the [Suburb 3] temple for the past four years, that the applicant is supportive, gentle, undertakes volunteer work, and has been reliable, non-violent, honest and considerate of others.
·There is a copy and translation of a newspaper article [stating] that there is new information regarding the suspected death of [Mr A]. It is stated that a case was filed against [Mr A] and his two housemates for some accusation. It is stated that [Mr A]’s parents cannot believe that their son committed suicide, and that his housemates are suspected. Mention is made of the Khap Panchayat president [asking] the Indian foreign minister to probe [Mr A]’s death.
·There is a copy and translation of a newspaper article [stating] that [Mr A]’s body has arrived in India, and funeral rites were performed. It is stated that there was a suicide note but the Australian police are not releasing much information about the note.
·There is a photograph of a handwritten note in English dated [February] 2019 appearing to be signed by [Mr A], stating that he is going to commit suicide because of the police case, and that he did not know [deleted] is a crime in Australia. It is stated that the applicant and the other housemate are innocent and do not know about [deleted]. It is requested that the applicant and his housemate are dropped from this case, and that his body is returned to his parents in India.
·A letter from the delegate to the applicant requesting further information regarding as to why he cannot relocate to Mumbai or Delhi.
·The applicant provided a support letter from [Mr G] stating that he has known the applicant for the last two or three years and is aware of his court case, and that the applicant is shameful and sorry for it and will not do anything wrong in the future. It is stated that [Mr G] could support the applicant if he is released from detention.
·A support letter from [Mr H] stating that he has known the applicant for two or three years, that he is aware of the court case, that the applicant is sorry and apologetic for the incident, and that [Mr H] will support the applicant if he is released.
·The applicant also provided copies of his bank statements and confirmations of the money in his accounts.
·There is a translation of a newspaper article dated 24 August 2020, stating that a young man was shot dead in Pehowa. It is stated that the deceased had an enmity with another party. It is stated that the deceased was driving in his motorcycle when the attackers came up on another motorcycle and shot him. Mention is made of the police linking the violence to a gang war.
·There is a copy and translation of a request by the applicant’s father to the Kurukshetra police dated [August] 2020, setting out the information from the father’s affidavit and requesting that legal action is taken against [Mr A]’s father.
·A support letter from [Mr I] stating that he has known the applicant since childhood, and that they are cousins. It is stated that the applicant’s life is in danger if he returns to India, and that the applicant has done wrong in Australia and feels ashamed of that. [Mr I] states that he is ready to support the applicant if he is released.
·There is a newspaper article by Hardik Anan, ‘Two families, 19 murders: Decade‑old Rohtak blood feud not over’, Hindustan Times, 6 May 2018, regarding a blood feud between two families in Karor village. It is stated that the feud arose from one man slapping a youth over his misbehaviour, which then escalated into shooting attacks.
·There is a newspaper article ‘Delhi man killed by friend in ‘revenge’ over 3‑year‑old fight, put body in bag’, Press Trust of Delhi, 9 March 2019, stating that a man was killed by his friend for revenge of having beaten him up three years ago over not returning 1,000 rupees.
·A newspaper article ‘Murder accused evading arrest since 2018 held in Southwest Delhi’, Hindustan Times, 8 July 2020, stating that a man who fled parole in 2018 has been arrested. The man is accused of killing another man in his shop and is involved in three cases of carjacking. He was arrested when the police received a tip that he was coming to kill another person. It is stated that he wanted to take revenge on a man who hired him to kill the first person.
·There is an affidavit from the applicant’s father stating his income and that he will send money to his son every month and is ready to sell his [property] to support his son. There are documents attached that confirm the [property]’s value.
·The applicant also provided his academic progress statements for his [Qualification 6], testamurs for his [Qualification 3] and [Qualification 2], and [Qualification 4].
Independent information
DFAT Country Information Report – India, 17 October 2018, provides as follows:
INTERNAL RELOCATION
Sections 19(1)(d) and (e) of the Constitution guarantee citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interests of the sovereignty and integrity of India and the security of the state. The interpretation of ‘reasonable restrictions’ is left to the government and courts. It enables laws and regulations that can restrict movement (for example, where there is unrest or in some border areas) and residence (non-residents cannot buy land in Jammu and Kashmir or in Uttarakhand).
India’s internal migration flows are substantial. Migration data from the 2011 census has been collected, but not yet released. The 2001 census recorded an estimated 307 million internal migrants in India, defining as a migrant anyone who lived in a place different to their place of birth or place of last residence. This figure represents approximately 30 per cent of India’s total population. The numbers may include people who had moved over very short distances within the same district, and may have missed a significant number of seasonal migrants, many of whom work in the informal sector without papers.
Limits to internal relocation
Several factors may limit options for internal relocation. These include language barriers, a lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities, and discrimination based on ethnicity, religion, caste or gender.
India is a multi-lingual and multi-ethnic nation. Language barriers prevent internal migrants from obtaining access to health or educational opportunities. Bilingual or multilingual internal migrants have better opportunities for internal relocation.
A lack of identity documents and proof of local residence can restrict internal migrants’ access to public services and social security programs or even banking facilities. As a result, they often face barriers in obtaining subsidised food, housing and banking services until they can establish identity and local residence. Ethnic, religious or caste identity may lead to anti‑migrant sentiment and limit options for internal relocation. Requirements to provide details of a husband’s or father’s name can exclude single women, women with children and domestic violence survivors from government services and accommodation.
DFAT assesses that individuals seeking protection from discrimination or violence have a wide range of viable internal relocation options, although these may be more limited for some individuals depending on their personal circumstances.[1]
[1] DFAT Country Information Report – India, 17 October 2018, para 5.14-5.19.
Hearing, credibility, findings and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative enquiries and decision‑making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45; nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of India and accordingly his claims will be assessed against India.
It is clear from the evidence that the applicant and his two roommates were charged by police in 2019 with [an offence]. It is also clear that one of the applicant’s roommates who was charged, [Mr A], committed suicide on the day before the scheduled court hearing.
The applicant pled guilty to the charges.
The Tribunal is satisfied on the relatively detailed and comprehensive evidence provided, including statements and evidence by the applicant’s father in India, that members of the [Mr A’s] family in India have a belief of the applicant’s involvement in the death of their son. The Tribunal is satisfied that there have been intimidating and threatening approaches to the applicant’s family in India from individuals associated with [Mr A], seeking information as to the whereabouts of the applicant and threatening that they will harm the applicant when they locate him.
Honour killings occur predominantly in northern and western India, although incidents are reported and occur throughout India, especially in rural areas.[2] Although many conservative communities believe honour-based violence to be aligned with societal norms, such killings also occur within India’s urban middle classes.[3] Honour killings occur for a variety of reasons, including if a victim causes a scandal or gossip in the community, as noted by the Indian Supreme Court.[4] Such killings are often endorsed by the respective communities and are seen as a manner of maintaining the integrity of cultural, traditional, customary or religious mores.[5] It is noted that accurate statistics of honour-based violence are hard to obtain due to under-reporting,[6] and that many honour-related murders are often reported as suicides.[7] Honour killings most commonly target women, although there are reports and incidents of violence against men.[8]
[2] Immigration and Refugee Board of Canada, IND200256.E – India: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016 – May 2020), 4 June 2020, (accessed 14 October 2020).
[3] Immigration and Refugee Board of Canada, IND200256.E – India: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016 – May 2020), 4 June 2020, (accessed 14 October 2020).
[4] Immigration and Refugee Board of Canada, IND200256.E – India: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016 – May 2020), 4 June 2020, (accessed 14 October 2020).
[5] UNICEF and UNFPA, Child Marriage and Other Harmful Practices: A Desk Review of Evidence from South Asia, 2020, p. 13 (accessed 14 October 2020).
[6] UNICEF and UNFPA, Child Marriage and Other Harmful Practices: A Desk Review of Evidence from South Asia, 2020, p. 13 (accessed 14 October 2020).
[7] Immigration and Refugee Board of Canada, IND200256.E – India: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016 – May 2020), 4 June 2020, (accessed 14 October 2020).
[8] UNICEF and UNFPA, Child Marriage and Other Harmful Practices: A Desk Review of Evidence from South Asia, 2020, p. 13 (accessed 14 October 2020).
There are indications that police action reports of honour-related violence, and it is noted that Kerala recorded its first conviction in an honour killing in 2019 for the murder of a Dalit man who had eloped with a higher-caste woman.[9] Indian police have established hotlines and ‘anti-honour killing cells’, but there are reports that some hotlines are the numbers for general complaints and that some police stations or NGOs were unaware that their numbers had been provided as hotlines.[10] It is noted that there have been reports of police complicity with honour-related violence, and that the family of a mixed-caste couple were allegedly tortured by police due to the couple’s elopement.[11] Although court convictions of perpetrators of honour violence are noted, it has been stated that these convictions are exceptions rather than the norm.[12]
[9] US State Department, 2019 Country Reports of Human Rights Practices – India, 11 March 2020, (accessed 14 October 2020).
[10] Immigration and Refugee Board of Canada, IND200256.E – India: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016 – May 2020), 4 June 2020, (accessed 14 October 2020).
[11] Barney Henderson, ‘Two Indian sisters to be raped as ‘punishment’ after brother eloped’, The Age, 30 August 2015, (accessed 14 October 2020).
[12] Immigration and Refugee Board of Canada, IND200256.E – India: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016 – May 2020), 4 June 2020, (accessed 14 October 2020).
Some Indian states, such as Kerala and Haryana, have launched safe houses for mixed‑caste couples, and these are protected by police.[13] However, some reports indicate that the safe houses are unhygienic and have poor living conditions.[14] There are limited reports of NGOs that provide legal assistance, financial aid, support, and help in connecting with authorities for mixed-caste couples.[15]
[13] Immigration and Refugee Board of Canada, IND200256.E – India: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016 – May 2020), 4 June 2020, (accessed 14 October 2020).
[14] Immigration and Refugee Board of Canada, IND200256.E – India: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016 – May 2020), 4 June 2020, (accessed 14 October 2020).
[15] Immigration and Refugee Board of Canada, IND200256.E – India: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016 – May 2020), 4 June 2020, (accessed 14 October 2020).
The independent evidence cited in the delegate’s decision, which has been provided to the Tribunal, also indicates that honour killings in India are perpetrated, particularly in relation to inter-religious or inter-caste marriage. Information indicates that honour killings are prevalent in Haryana, the state where the applicant is from. The applicant has provided media reports in India of harm inflicted in ‘revenge attacks’.
The applicant indicated in the hearing that is home area and family are located approximately [distance] from the home area and family of [Mr A].
The Tribunal agrees with the assessment of the delegate that the applicant faces a real chance of serious or significant harm from family/and/or individuals associated with [Mr A], in a belief that the applicant is somehow responsible for his death in Australia.
As with the delegate, the key issues for the Tribunal’s consideration and decision is whether the real chance of serious harm applies to all parts of India (for the purpose of the refugee criterion) and, if not, whether it would be reasonable for the applicant to relocate to a different part of India to avoid the real risk of significant harm (for the purpose of the complementary protection criterion).
In relation to the refugee criterion, the applicant has indicated that [Mr A] has relatives all over India as well as it being claimed that his family have political connections, and that it would be easy to locate the applicant wherever he is in India.
The Tribunal is not inclined to be satisfied of this given the large geographic size of India and its enormous population of approximately 1.3 billion and many big cities. Even if there are family members of [Mr A] around India, the Tribunal is not satisfied given the size and population of India that this makes it reasonably likely that the applicant would be located by them if he moved to a large city.
Even if [Mr A]’s family have political connections, the Tribunal is not inclined to be satisfied that these connections would extend to facilitating the use of government systems to track down the applicant in India.
When these issues were discussed with the applicant in the hearing, he maintained the significant political connections of [Mr A]’s family. When asked for further detail, the applicant indicated that he knew that when the family voted in elections, they were involved in promoting candidates. As well, the applicant indicated that he knew that [Mr A]’s father had talked about his significant political connections.
The applicant indicated the need to register at some point with authorities his residence in another part of India. This will include information about his previous address, which will then cause enquiries with police in his local area. This in turn will enable individuals who wish to harm him in his local area to learn of his whereabouts in India.
In terms of the claims of harm being made by [Mr A]’s family, in the hearing the applicant indicated that [Mr A]’s family had been making claims in India that they have a connection in the New South Wales police which will result in the applicant being jailed indefinitely in New South Wales as a result of his complicity in the death of [Mr A].
The applicant in the hearing agreed with the Tribunal’s assessment that this eventuality was plainly not correct given that there was no evidence that New South Wales police were accusing the applicant of complicity in [Mr A]’s death. The applicant acknowledged this.
The Tribunal put to the applicant that this overblown claim as to the influence of [Mr A]’s family in India in New South Wales could be seen as undermining claims that [Mr A]’s family have such a high level of political connection that they would be able to track down the applicant wherever he was located in India. The applicant maintained that this was the case.
The applicant also referred to pressure being applied to his family by [Mr A]’s family to disclose the applicant’s whereabouts in India. The applicant also made reference to them finding the applicant’s location by tracing bank transfers that his father would make to him in India, in his new location.
Considering all of the evidence including that of the applicant, the Tribunal is not satisfied that the applicant would be located by [Mr A]’s family in a large city in India, given the geographical size and enormous population of India. The Tribunal is not satisfied that the political connections of [Mr A]’s family extend to obtaining information from police/authorities in either local or other parts of India as to the location of the applicant in terms of information he may need to provide for residence purposes.
The Tribunal is also not satisfied that [Mr A]’s family would have the ability to identify the location of the applicant in India by an ability to access bank transfers by the applicant’s father or otherwise pressuring the father or other family members to reveal the applicant’s location.
Considering all of the evidence, the Tribunal is not satisfied that the real chance of persecution to the applicant relates to all areas of India (s.5J(1)(c)). The means that the applicant is not owed protection based on meeting the refugee criterion.
This then requires consideration of the complementary protection criterion. As indicated, the Tribunal is satisfied that the applicant is at a real risk of significant harm in the vicinity of his home area in India.
In terms of relocation options under this criterion, there is taken not to be a real risk that the applicant will suffer significant harm if it would be reasonable for him to relocate to an area of the country where there is not a real risk of significant harm. Reasonableness must be determined in the sense of what is practicable.
Thus, the Tribunal needs to consider whether it would be reasonable for the applicant to relocate. As indicated, the delegate provided the applicant to give reasons as to why it would not be reasonable for him to relocate, particularly to a big city such as Delhi or Mumbai.
As discussed with the applicant in the hearing, the DFAT assessment in relation to relocation in India assesses that there are a wide range of viable internal relocation options in India to those seeking to escape localised harm. It is noted that these options may be more limited for individuals depending on their personal circumstances.
As discussed with the applicant in the hearing, the circumstances of the applicant would not seem to suggest significant impediments to his ability to relocate to a large city in India. The applicant has referred to language difficulties, but he speaks Hindi, Punjabi and English. He has completed secondary education and tertiary studies, including a [Qualification 2], [a Qualification 3], a [Qualification 4], a [Qualification 5] and a partially completed a [Qualification 6], which would enhance employment opportunities. In addition, the applicant’s family in India would appear to have resources to support the applicant, given their financial support of him during his studies in Australia. The support of the applicant’s family would be available to seek to overcome practical hurdles in the applicant relocating to another area within India. Further, the fact of the applicant travelling to Australia at the age of [age], a new and foreign country where he has lived for over six years, would suggest a resilience and independence of the applicant to make a life of his own, apart from his family.
As indicated in the DFAT assessment, India is a multilingual and multi-ethnic nation. Specific independent information cited by the delegate refers to Sikhism being a religion practised in Mumbai. The delegate’s decision also cites independent information indicating that Sikhs living in states outside Punjab would not be prevented from accessing employment or housing on the basis of their religion, particularly if they are skilled and educated.
The applicant has indicated that relocation hurdles would include him not having an identity card in the local language or a birth certificate indicating that he was born in the area. As put to the applicant in the hearing, the Tribunal, in the absence of independent information, and noting the DFAT indication of widespread internal movement in India, does not consider that these are actual or practical hurdles to relocation.
The applicant also referred to difficulties renting housing. The applicant has provided a media report indicating difficulties for Muslims renting houses in Mumbai. The delegate cites independent information indicating the need for compulsory tenant registration in Delhi, but notes that this is not always the case. As put to the applicant in the hearing, the Tribunal would not be inclined to consider there was a risk to the applicant as a result of having to register for housing.
In any event, as put to the applicant, the delegate cites information which suggests that in some cities, such as Mumbai, half the population live in informal settlements. Elsewhere in the same report it is stated that in a number of cities, including Chennai, Hyderabad, Kolkata and Mumbai, more than 50% of all households live in informal settlements. It was put to the applicant in the hearing that the applicant could live in an informal settlement obviating the need for more formal requirements for housing, if that was necessary. In addition, the applicant could rent a room in an established premises. In response, the applicant indicated that he would eventually have to reveal his identity details to local authorities, and at this point this would enable [Mr A]’s family to locate him.
As indicated, the Tribunal is not satisfied that [Mr A]’s family would have this ability through political connections.
During the discussion that took place with the applicant in the hearing in terms of reasonableness, the applicant significantly responded by turning to his claims that [Mr A]’s family would have the ability to track him down wherever he resided in India.
The Tribunal sought to explore with the applicant that if the Tribunal were not to accept that [Mr A]’s family had the ability to track him down and harm him all over India, whether he was otherwise claiming that it would be unreasonable for him to relocate.
Eventually, the applicant indicated that it would be unreasonable referring principally to language concerns and difficulty obtaining a job. Given that the applicant speaks three languages utilised in India, and has a number of tertiary qualifications, the Tribunal is not satisfied that it would not be reasonable for the applicant to relocate within India because of language or difficulties obtaining a job. The Tribunal is not satisfied that it would otherwise not be reasonable for the applicant to relocate.

Thus, there is not taken to be a real risk that the applicant will suffer significant harm in India because it would be reasonable for the applicant to relocate to a part of India where there would not be a real risk of significant harm (s.36(2B)(a)). This would include a large and populous city such as Mumbai or Delhi.
Therefore, the Tribunal is not satisfied that 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 he will suffer significant harm.
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) because s.36(2B) applies.
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 not to grant the applicant a protection visa.
David McCulloch
Member

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.
…
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.
…

[2020] AATA 4984

16 October 2020

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