2103657 (Refugee)

2103657 (Refugee) [2022] AATA 718 (8 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2103657
COUNTRY OF REFERENCE:                   India
MEMBER:David McCulloch
DATE:8 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 February 2022 at 9:31am
CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh convert to Christianity in Australia – marriage to Christian woman in Australia and parents’ cancellation of arranged marriage in home country – community ostracism of family and threat of honour killing – credibility – delay in applying for protection – inconsistent claims and evidence – visa, study, work and relationship history – criminal convictions and sentences, cancellation of visa and immigration detention – mental health – no religious practice now – voluntary travel to home country – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), (2A)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
CSV15 v MIBP [2018] FCA 699
EZC18 v MHA [2019] FCA 2143
GLD18 v MHA [2020] FCAFC 2
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 9 March 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 28 September 2016. The delegate refused to grant the visa.
On 14 May 2021, the Tribunal sent a hearing invitation to the applicant to give evidence and present arguments on 24 June 2021 via video conference. The hearing was not to be held in person due to the COVID-19 pandemic. On 24 May 2021, the applicant notified the Tribunal that he had ongoing family law proceedings around the same time as the scheduled Tribunal hearing and requested more time to prepare for his merits review matter.
On 2 June 2021, the Tribunal postponed the hearing to 25 August 2021 to be held in person at the Tribunal Sydney registry and notified the applicant of such.
On 7 July 2021, for reasons unrelated to the applicant, the Tribunal rescheduled the hearing to 31 August 2021 to be held in person at the Tribunal Sydney registry.
On 5 August 2021, due to the ongoing stay-at-home order from the NSW Government related to the COVID-19 pandemic, the applicant was notified that the hearing mode would be changed to video conference.
On 17 August 2021, the Tribunal received a communication via email from the applicant. The applicant requested that the hearing scheduled for 31 August 2021 be postponed due to his Legal Aid application being refused and to allow the applicant some time to prepare for his case. On 18 August 2021, the Tribunal wrote to the applicant, advising him that the Tribunal had agreed to postpone the hearing scheduled for 31 August 2021. The hearing was rescheduled to 3 November 2021 to be held via video conference.
On 28 October 2021, for reasons unrelated go the applicant, the Tribunal rescheduled the hearing to 1 December 2021 to be held via video conference.
On 22 November 2021, the applicant responded to the hearing invitation, indicating that he would attend the hearing on 1 December 2021 and nominating his sister, [Ms A] and [Ms B] as witnesses. On the same day, the applicant emailed the Tribunal requesting that the hearing be postponed. The applicant wrote that he did not have legal representation, but a person by the name of [Ms B], who concurrently represented him in his family law matter, had agreed to represent him albeit not being prepared at the time.
On 22 November 2021, an officer of the Tribunal contacted [Ms B] to confirm her representation of the applicant and the capacity in which she would attend the Tribunal hearing. [Ms B] indicated to the Tribunal that she only represented the applicant in his family law matter through Legal Aid, but not in his review application. [Ms B] also indicated that she would not attend the hearing.
On 23 November 2021, the Tribunal declined to postpone the hearing. The Tribunal considered that the applicant had had time to prepare for his case and to seek legal representation since the application for review was lodged on 23 March 2021, with multiple deferrals of hearing granted by the Tribunal. This information was conveyed to the applicant in writing. In that letter, a form was provided to the applicant to appoint a representative if that was still his intention. The applicant was advised that the Tribunal would give any representative that might be appointed the opportunity to provide a written submission following the hearing.
On 26 November 2021, the applicant appointed his sister, [Ms A], as his authorised recipient. A few hours later, the applicant sent the Tribunal another email, withdrawing the authority of his sister to receive communications on his behalf and stating that [Ms A] would not attend the hearing. On 27 November 2021, [Ms A] notified the Tribunal that she would proceed to attend the hearing and would remain as the authorised recipient.
On the day before the scheduled hearing, a nomination form was provided of a representative/lawyer for the applicant, who asked to be allowed to attend the hearing.
He did attend the hearing that took place on 1 December 2021 at 9:30 AM. The Tribunal exercised its discretion to hold the hearing by video from the applicant’s immigration detention centre. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant, particularly the need for a timely decision given that he was in immigration detention. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Appearing as a witness for the applicant at the hearing was the applicant’s sister, [Ms A].
The Tribunal has considered whether the late appointment of the representative has prejudiced the applicant in terms of meaningfully giving evidence and presenting arguments. The representative made no submissions at the hearing to this effect. The Tribunal provided the opportunity for the representative to provide a submission following the hearing, which was taken up. The applicant had a considerable period from the lodging of the application to seek appropriate advice which was not taken up until the last minute. In all the circumstances, the Tribunal considers that fairness has been accorded to the applicant and that he has been able to meaningfully provide evidence and arguments to the Tribunal.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) 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, December 2020, a copy of which was provided to the applicant in advance of 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 entered Australia on a TU 573 (Higher Education) visa in 2008. The applicant was granted a further TU 572 (Vocational Education and Training Sector) visa, which ceased on 10 December 2011 for non-compliance. The applicant then lodged an application for a UK 820 (Partner Visa) on 10 October 2011, which was refused on 05 December 2014. The applicant sought a review of that decision at the Tribunal, which was affirmed on 14 April 2016. The applicant then sought Judicial Review with the Federal Court [in] May 2016, which he subsequently withdrew. The applicant then applied for a Nomination Business Sponsorship on 07 July 2015, which was refused on 02 October 2015. The applicant then lodged a UC 457 (Temporary Work (Skilled) Visa) application on 16 February 2016, which was refused on 02 November 2016. The applicant sought a review of that decision at the Tribunal, which was finalised for no-jurisdiction on 15 May 2019. The applicant applied for a protection visa on 28 September 2016. The applicant was refused by the Department on 09 March 2021. The applicant applied for a review of that decision on 23 March 2021.
The following information is apparent from the application for protection forms. The applicant was born on [Date] in Haryana Province, Ambala City, India. The applicant speaks, reads and writes Punjabi, Hindi and English. The applicant has a brother, mother and father who reside in Ambala, India. The applicant has a sister who resides in Australia. The applicant indicated in his Department interview that his parents also resided in Australia for some time. The applicant also has an ex-partner and former stepson who reside in Australia. The applicant is in contact with family in India via telephone. The applicant does not provide details of any addresses lived at in India. The applicant declared no previous convictions in his application for protection, however, he was later held in custody in Australia on a criminal matter. The highest level of education obtained by the applicant in India was Senior School in March 2005, at [a School], Ambala City, India. Since arrival in Australia the applicant studied, from June 2008 until June 2010, an Advanced Diploma of [Subject 1] and a Certificate IV and Certificate III in [Subject 2] at [Institution 1], and from March 2016 a Diploma of [Subject 3] at [Institution 2]. The applicant worked at [Employer 1] as [Occupation 1] and [Occupation 2] from January 2011 until December 2013, at [Employer 2] as [Occupation 3] from February 2014 until May 2015, at [Employer 3] as [Occupation 4] from April 2015 until June 2015, and at the same company as [Occupation 5] from July 2015 until ‘current’ (the applicant has since entered detention). After first arriving in Australia, the applicant travelled to India from [date] February 2016 until [date] February 2016 to visit his sick mother.
The applicant provided a written statement to the Department setting out his claims for protection, as follows (not corrected for spelling or grammar):
MY CLAIMS FOR PROTECTION
MY FAMILY BACKGROUND
1.     My name is [the applicant].
2.     I was born on [Date] Ambala, India.
3.     My address in Australia is [Address, Suburb].
4.     I have children.
5.     My parents are in India.
MY EDUCATIONAL BACKGROUND
6.     I have completed 12th in India.
MY EMPLOYMENT BACKGROUND
7.     I am employed.
MY RELIGIOUS BACKGROUND & MY PROBLEMS DUE TO THIS BACKGROUND
8.     I am a Sikh.
MY DECISION TO LEAVE INDIA & RESIDE PERMANANTLY IN AUSTRALIA
9.     I am a citizen of India but left the country in 2008.
10. I came to Australia in 2008 as a student.
11. I was married with a Christian girl in 2011.
12. Due to my travels overseas, I was exposed to different cultures and religions.
13. In Australia I became influenced by the teachings of the Catholic Church. I started going for masses and enquiring about the religion from my wife of catholic faith.
14. My wife was that I was leaning towards Christianity and somehow my family came to know about it.
15. My parents were very angry with me for abandoning their religion. They told me if the villagers come to know that I am espousing catholic faith they would be furious.
16. They have asked me never to come to India, for bringing shame to their family as well as because they fear i would be exposed to anger and humiliation from my own faith.
17. Sikh faith is strict about those who abandon the religion. It has strict rules and those who practice the religion are fiercely proud of it.
18. My case has to be understood in the context India culture, where people are illiterate, feel so strongly about family and religious honour and caste differences.
NO SAFETY IN INDIA AS A STATE
19. There is no safety in India as anarchy and restless is on the rise and India as a State does not have enough resources to cope with all these problems. They get so many complaints like this and do not take them seriously.
MY APPEAL FOR REFUGE
20. I would like to request that my application be kindly considered for protection in Australia.
21. I believe that Australia is a peaceful and peace loving country and we can live here peacefully without being harmed or threatened by others.
22. I strongly believe that our life would be at risk once and if we go back to India.
[The applicant]
27/9/2016
The applicant’s sister, [Ms A], provided the following statement to both the Department and Tribunal (not corrected for spelling or grammar):
I am writing this letter for the protection visa application for my brother. As a family member, I see some of the potential risks/threats for his life and possible self-harm in case visa not being granted for him. I would like to highlight some of the history behind it and the circumstances/events happened in his life. I apologise if it is too long but history is very important to understand his circumstances and the problems he faced and the reason he applied for Protection Visa.
Pls note that he was raised by my maternal Grandmother from [age] as my parents used to live in a village and they sent him over to my grandmother living in a City at [age]. Since then his interaction with his parents is limited and they never lived together and bonded with each other. At very young age, after his schooling finished and after exploring some of the other options, he came to Australia for studies. During that time there were discussions within the family for him to get married to a girl within the community. Parents from both sides were on agreement and the plan was for him to get married in a couple of years of his return as he was eldest child in the family. As he spent more time in Australia, he adopted Australian culture and followed the practices being followed in Australia.
Here he was alone and there was no guidance for him and he went through very stressful situations in terms of visa, manipulation where people took advantage of him for their financial gain, relationships failures and studies burden and work as well. From here on, he was not on good terms with his family back in India as they could not understand what he was going through here and always stressed on him returning and getting married. Things were beyond his control when he married an Australian girl who was intercast for his parents and community back in India. Things did not go well with my parents as he did not listen to them and continued with his marriage. He eventually converted to Christian and started going to Church as his wife was also a Christian. My Parents had to revoke the marriage proposal which was already agreed and discussed back in India. Because of this, my parents had to face a lot of backlash from the other party and it was raised to Khap Panchayats (A group which kills people in the name of honor due to intercast marriage and religion issues). My parents had to face humiliation, isolation and the community ganged up against them and only way of them being accepted was if they broke all their ties with my brother and never accepting him back in the family. My parents broke all ties with my brother as they were angry with him and also this was the only option for their survival in the community.
My brother also was angry as he did not feel supported and he discontinued any discussions with them.
That’s when he decided he will never go back to India and thought of permanently settling into Australia. But he was already going through a lot of stress because of the things running in the family and also he started facing problems in his marriage too. That relationship failed due to his wife being on drugs and she used him financially and emotionally. He tried his best to save the marriage as he loved her but love has to be both ways. This impacted him a lot emotionally.
After that, he restarted his life and came into relationship with another girl who lived with him for 5 years and promised to marry him. He trusted her a lot but she was dating another guy alongside and fell pregnant with him. She dumped my brother and secretly got married to this other guy. This broke him completely and he could not recover from this. He was already dealing with a lot of stress and depression and due to this betrayal he was drinking excessively to manage his pain and depression.
That’s when his drink driving offence was done as he drove due to work to manage his expenses.
When he was going through that breakup, he met his current wife. He was living with me that time and his current wife then moved from Gold Coast to Sydney and rented a room at our place. They both met that time in Aug, 2018 and he discussed his life and pain with her. She supported him emotionally and he started liking her. They started spending more time and fell for each other. They moved out from my place and rented for few months and got married in Feb, 2019. Her family was not in favor of marriage because she was from Nepal and he was from India but she did not listen to them. They did a court marriage in Aug,2019. On the day of marriage he found that she was divorced and she got upset when he enquired. When she fell pregnant, she invited her elder sister and brother in law from Nepal to help with the delivery around March,2019. Ever since they came they were still living with us when that AVO was made in place and never returned back to Nepal. He was looking after her and her family and paying for all expenses like rent and groceries and others.
They started manipulating his wife as they were not in favor of marriage and she started to control his life, bank accounts, emails, spying on phone records but never shared anything of hers, her phone was always locked and she never told him where she going even if asked normally. She did not pay any attention to him and spent all time with her family. She used to stop him from talking to me and his friends and even neighbors. She used to transfer all his money to her account and he had to beg even for $5 for medicines, food etc. He was being cornered and isolated in his own house and there was no space in his life with wife with her family living with him. They used to talk in a different language in front of him. When he tried to talk to his wife about all this, she used to get upset and fight with him. He still kept mum because wife was pregnant and he did not want her to stress. In December 2019, he bought a property as his wife said she wants to buy a house before the child is born and he spent all his savings on the property. His [child] was born [on date] and he was with wife all the time. He tried to be a good husband and father and took all his responsibilities. His wife was busy with the new born and with her family. He thought once her family goes back, things will get better. He did not want to break his marriage because of past failed experiences. What really upset him that she used to block his friend’s numbers on his phone so he could not discuss his problems with them and when he saw some of his friends they told him that his wife said to stay away with him and not to contact him. Without any outside access and having history of depression, his mental health started to degrade. That’s when he had 2 surgeries in May and June 2020 (evidence attached). He was in a lot of physical pain and discomfort and mental stress with no one to share things with. In isolation and during Covid, he started drinking excessively to manage his pain from surgery and as he was not able to cope with what was going around him.
[The applicant] told me, that on the day of the incident, he took his wife and her sister out to a park and picked up his brother in law from work. His wife wanted to eat something and he took them to a restaurant. After they finished eating, they headed back home. However, his wife did not have the house keys and she balmed him for not asking if she had keys before leaving.
Her brother in law broke the kitchen glass. His wife got upset with [the applicant] and blamed him for the broken window and she got so angry that she left the house.
He was feeling so depressed again and he was in physical pain too because of the surgeries, he ended up drinking to try to cope with pain and depression. Later on, his wife came back and got angry coz he was drunk. He admits he was excessively drunk and vaguely remembers her throwing things from the tallboy and he said he hold her arms to try to stop her to harm her or me. He does not remember what happened after that. He had no intentions to assault her and he is very sorry if he did but honestly he does not remember that.
He told me after he was granted bail his wife forced him that he must plead guilty otherwise she will never let him see the child.
After he moved out of the house due to AVO, his wife cleverly took all his keys and during Covid, she left for Queensland along with his [child] without this consent. There were no concerns in the AVO regarding the child but she intentionally kept him away from his [child]. He could not get access to his documents like passport etc.
After he lost his wife and unable to see his [child], he was going through a very tough time and feeling even more depressed. He had no motivation to live his life and had suicidal thoughts and self harm ideas. His mental health was degraded to a level that he used to hit his head with pan. He was not aware of what he was doing. In this condition, he used to write emails to his wife requesting her to get him to see his [child] as he had not seen the child for months. His wife used to complain to Police as she was angry and under the influence of her family. There were more and more charges laid on him by the Police. He was admitted to hospital multiple times because of suicidal thoughts and self harm ideas. He used to talk to himself and stayed in his room 24 hours in dark sleeping after getting drunk as he did not want to live. We saw him trying to eat brick pieces considering it is food.
We worked really hard with him to get him back on track. I used to coordinate with his GP, Hospital staff, mental health unit, Pyschologist and Centre of Addiction Medicine [regarding] his progress. He was doing good by October,2020 and he wife started calling him and discussing things with him and said she will get back to him once the case is over. When he wrote to her to see the [child], she complained to Police and he was arrested and sentenced.
I would like to highlight that he is not a criminal and all these offences happened due to his personal circumstances and mental health issues. He did not try to hurt his wife and never had any intentions and was not even aware if he is offending.
Moreover, there is an appeal made in district court for the sentence as previously he did not present much to court as he was not mentally stable. His current lawyer appealed based on section 32 and also have made a bail application. Evidence attached.
His visa has also been cancelled on character basis due to the current sentence for which an appeal has been made in the district court and there has been a date mentioned 05/02/2021. A revocation application has been made to the Minister for the visa cancellation requesting him to resume his visa. I have also attached character references from colleagues and other people to support his character.
Coming back to the Protection visa, it is really important for his life that his visa gets granted. He is currently in a state where he needs someone to support him emotionally and look after him to recover from the mental illness and also the ongoing stress and depression in his life for many years for various family issues and the relationship failures. If his protection visa is refused, there is no chance he can survive in India as there is no one to look after him. There is a potential risk of harm within the community if he returns back. He has never visited India in all these years except for 1 week for which I convinced him as my mother was really unwell and she felt she may not live any longer and she wanted to see him. This was a secret visit, only my mum and I knew. When he went there, there were riots happening in across North India and all the roads were blocked and people were being killed. He could not go any further outside New Delhi and returned from there only. I have attached evidence of riots happening during that time.
Moreover, his family and [child] are here in Australia and they are Australian Citizens. After the AVO is finished, he has to sort out with his wife and he plans to reconciliate with them. If not, he has to go to the Family Court for his [child]’s custody. If his visa is refused, he will not cope from this as he cant return to Australia after that and will not be allowed to stay and will lose his wife and [child] forever.
There is a significant risk he might commit suicide as he went through all this before he was sentenced. He is dealing with mental health issues and has been admitted to hospital multiple times and he was also admitted to Mental health Unit. He is undergoing treatment and a bail application is made for him so he can go to hospital and come out of prison. If his protection visa is refused, his treatment will not happen and in India he does not any financial support for the treatment and Government does not support medical treatment for people.
He is been living in Australia for past 12 years and achieved all the qualification and skills here which will not be considered in india where unemployment rate is so high that people have no jobs who are even phd level. He has no skills to work in india based on his qualifications and he cant think of going back and start a living. His wife and [child] are here and his only support myself is also here. If he goes back to India, he will not have a place to live in and he has no money. All the money he has earned so far he has spent on the property he purchased with his wife (Evidence attached). He cant even sell it and take the money because his wife is living in there and she would claim the house and also he would not make her homeless. He will be dependent on his parents with whom he does not have interaction for years and he does not feel safe with them. Even for my parents, in this old age, I don’t want them to suffer because of community pressure and there might be a risk for them too if they take him back. If they face humiliation, isolation, threats and ganged upon in this age who will protect them. We belong to a middle class family and even the police is bribed when these instances happen. Even though the law is there but when it comes to community and caste, the law is overlooked and even Police cant do much in most cases. People are pressured to a level that they have no option but to commit suicide. Even my parents life will be at risk. In most cases, things do not come out as if people are murdered but that stays within the community to set examples so nobody breaks the community rules. I have attached some case studies and examples of honor killing for various reasons in India which happened under various circumstances.
My parents are retired and do some farming for survival other than the little pension. It is not easier for them to move to any other state as culture and language changes in every state and in this age they wont be able to adjust there without the community support. They are settled in their own place and moreover, they are not that rich where they can relocate and manage the higher living costs without any income. My brother cant stay alone in a different state due to his mental condition and he would not be able to find a job and support himself financially and emotionally and would not survive without his [child] and wife either. I seriously feel that he will end his life as I have seen him in the recent months in a very bad state without his family. He really loves his wife and cant stay without his [child]. Other reason is that, Khap Panchayat culture is not only active in Haryana but in other states too. And with the technology advancement it is not difficult to find anyone and do potential harm.
Therefore, for the well being of my family and for my brother’s life, I am requesting the department to grant him the visa. He has suffered a lot all his life and all he wants is to lead a normal life and everyone deserves that. Both my parents, my brother and I are on anti-depressants because of the ongoing stress and tensions running in the family for years which is affecting my family (husband and boy too who is diagnosed with Autism due to depression and stress). I am an Australian Citizen and Australia is committed for its citizens. Therefore, I am requesting to sort out our life and end this risk factor by granting him a visa
Even though he is suffering this much, he is always been kindhearted and helpful for other people and contributed to Australian community where he is been paying tax for many years and made contributions to [Organisation 1] and did volunteer and Community work. (Evidence attached).

Documents obtained by the Tribunal from the relevant court indicate multiple charges against the applicant resulting in convictions and sentences; the sentences were appealed, but the appeals withdrawn. The documents indicate that for a conviction of an offence of destroy or damage property the applicant was sentenced to a Community Correction Order for a period of four months. For convictions of offences of contravention of an Apprehended Violence Order, common assault, stalk/intimidate intend fear physical etc harm, the applicant was sentenced to an aggregate term of imprisonment of eight months with a non-parole period of four months.
The Tribunal notes the following evidence of relevance given by the applicant in the interview with the delegate which took place on 17 December 2020. Although there was a Punjabi interpreter present, the applicant mostly communicated in English, with the interpreter only being used occasionally.
The applicant indicated that he has been in criminal detention from [November] 2020, serving a four month sentence for breaching an Apprehended Violence Order (AVO) in relation to his wife. The applicant indicated that the offence occurred because of mental health issues suffered by the applicant and that he pled guilty. The applicant indicates that he has a [child] who is [Age] old on [Date].
The applicant refers in the hearing to ongoing mental health issues suffered from 2010 and various medication he has been prescribed. The applicant refers to the medication being for stress, anxiety, depression and bipolar, which started in 2010 due to his grandparents passing away. He refers to seeking counselling from [a] Drug and Alcohol Centre. The applicant refers to seeing a psychologist and a psychiatrist.
The applicant indicates little contact with his parents throughout his life. He was removed from his parents at the age of [age] and went to live with his maternal grandparents. The applicant indicates that he has had no contact with his parents since the age of [age]. It was these grandparents who arranged and supported his travel to and study in Australia. The applicant indicated that the last time he spoke to his parents was in 2017 or 2018. Later in the interview the applicant says the last time he spoke to them was in January 2020. This was the last time the applicant got married; he invited them to the marriage when they were living with the applicant’s sister in Australia but they did not turn up. The applicant also invited his parents to see the house that he had bought in Australia. The applicant indicated that his parents visit Australia from time to time. At the time of the interview, the applicant’s mother was in India but the applicant’s father was in Australia.
In relation to religion, the applicant is asked if he is still a Christian, and he answers yes. The applicant indicates that he had no religion before coming to Australia. The applicant met his first wife at church and decided that he wanted to learn more about Jesus Christ. The applicant indicated that he was a Catholic. The applicant indicated that he did not get baptised. The applicant is asked if he still practises his religion and states that after the death of his grandparents he stopped practising everything and stayed in his room due to his depression and stress. The applicant is asked when he stopped and he indicates that it was about 2014.
The applicant indicated that his family were not happy when they learned that he had married a Christian girl. The applicant’s marriage came to an end after she reformed a relationship with her ex-partner. The marriage ended in divorce.
The applicant indicated that his grandparents in India made an arrangement when the applicant was [age] that he was to be married in the future to a girl from the community who was [age] years of age at that time. The applicant’s grandparents then supported the applicant to study in Australia. The applicant came to Australia without his parents knowing of these plans.
The applicant indicates that he had good intentions but his parents were discouraging; they were putting his wife down because she was from a different religion, and making things up about her.
The applicant is asked if his parents have ever threatened or harmed him in anyway. The applicant refers to the fact that he did not enter into the arranged marriage in India. The applicant indicates that the girl’s parents went to the village court in relation to the engagement and claimed a large amount of money from the applicant’s parents. The village was not happy with the applicant’s attitude. The applicant was told to return to start his life with this girl. The applicant had no intention of doing this.
The applicant refers to the Panchayat being responsible for village decisions, including in relation to marriage. The applicant refers to being threatened all of the time including receiving threats to his life, the life of the applicant’s family and to everyone else’s life. The applicant refers to his state being very backwards and not run by the government or police but by a social organisation. The applicant refers to a village code.
The applicant refers to returning to India in 2016 to visit his sick mother but states that he had to remain in New Delhi because of travel restrictions to his local area because of riots. The applicant indicates that he asked for security to return to Haryana but this was denied.
It is put to the applicant that he could relocate to a different part of India, such as Delhi. The applicant responds that at the time he applied for the protection visa it was based on religion but the most important reason he cannot return is because he did not marry the girl that his grandparents on his father’s side wanted him to marry. The applicant indicated that this caused his father’s parents to be kicked out of the village. They had to sell land and pay a price to the other party. The applicant indicates that his grandparents on his mother’s side passed away in 2011.
The applicant repeats that he is not in contact with his parents but that they have left their native base in India and are living elsewhere.
The applicant is asked if he has any reason to return to his village. The applicant responds that he has no reason to return to India. He does not have a livelihood or work experience or qualifications to start a new life. He is been in Australia for 13 years. The applicant refers to his child and wife who are Australian citizens but that the relationship is not going well because of the applicant’s mental situation.
The applicant is asked again about the potential to relocate elsewhere in India. The applicant responds that just because he speaks English, it doesn’t mean go back to India and start a new life. He refers to it being almost impossible to get a job in India, especially when you don’t have experience. He refers to being unable to rent a house in India. The applicant refers to being an injured worker and still being paid workers compensation for the injury that he suffered.
The applicant is asked about his delay from 2008 until 2016 in applying for the protection visa. The applicant refers to completing his studies and then getting married and the potential for staying in Australia on other visas, particularly a partner visa. The applicant indicated that he did not come to Australia with the intention of lodging a protection visa, he just came here to save his life. The applicant refers again to his family being kicked out from his village.
The applicant indicated that the government of Australia cancelled his visa for a minor offence.
The applicant provided the following additional documents to the Department:
·A medical certificate from [a doctor] of [Medical Centre], dated 23 November 2020, which states that the applicant’s depression had gotten worse since he had been separated from his wife and child. The applicant had suffered from Major Depression since 2015 and alcohol abuse.
·A letter from [a] psychologist, dated 10 December 2020, which states that the applicant was assessed to be experiencing an extremely severe level of depression and anxiety, a high level of stress and severe alcohol dependency with a long history of self-harm and suicidal ideation. Cognitive Behaviour Therapy and Dialectical Behaviour Therapy were the therapy approaches suggested.
·A psychological report from [another person] dated 10 December 2020. The report was prepared to support an appeal against the applicant’s criminal charges. He was diagnosed with Generalised Anxiety Disorder, Major Depressive Disorder and Alcohol Use Disorder. These diagnoses were made on the basis of the applicant’s excessive worry, irritability, restlessness, difficulties concentrating, sleep disturbances, chronic history and symptoms of low mood, poor sleep, poor appetite, suicidal ideation, fatigue, anhedonia and low motivation. The applicant had been self-medicating with alcohol use and had engaged in regular alcohol use for over 12 months with unsuccessful efforts to cease or control his drinking. The applicant’s recommended treatment plan was: to attend an assessment and treatment for at least six months; counselling in lieu of an admission to a detoxification unit for alcohol use due to the applicant’s time in custody and the likelihood that detoxification had already been achieved; a Community Treatment Order if the applicant did not abide by treatment; residing with his sister; engaging in the ‘Triple P’ parenting class; an appropriate, prosocial plan to manage his physical health and mental health symptoms; couples counselling with his wife for the purposes of amicable parenting upon the applicant achieving sobriety.
·A letter from [a] rehabilitation counsellor and the applicant’s case manager, undated. The author describes the applicant’s workplace injury and the applicant’s personal life. The author also characterises the applicant as generally being a person of good character.
·A letter from [the] applicant’s brother-in-law, undated. The author describes the applicant as a ‘very down to earth, simple living and helpful person’.
·An email from [Organisation 1], dated 24 December 2019, thanking the applicant for being a regular donor of $23 every four weeks.
·Notices of tax assessment for the financial years ending in 2010-2012 and 2014-2020.
·A certificate of completion for successfully completing [a Program], dated 17 October 2020.
·Five emails from [Organisation 2] confirming registration for [Organisation 2] meetings.
·A letter of attendance from [Organisation 3], dated 20 October 2020, which states that the applicant attended a telehealth appointment with [Organisation 3] on 8 October 2020 and 26 October 2020, and the applicant had been booked for ‘further appointment’ for ongoing support.
·A letter from [Organisation 4] dated 17 September 2020 confirming that the applicant had completed a pre-group interview for [a Parenting] Course.
·Country of origin information entitled ‘India: Situation of inter-religious couples from both urban and rural locations, including societal attitudes, treatment by government authorities and the treatment of their children (2005-April 2012)’ from the Immigration and Refugee Board of Canada, dated 11 May 2012. The article reported a varying degree of discrimination and violence against inter-faith couples predicated upon the religions of the couples. Sikh/Hindu couples appeared to face less to no discrimination, while Hindu/Muslim couples were often targeted and at times could face violence. The article made a brief mention of Christian/Hindu couples, saying that although marriages between Hindus and Christians may face disapproval, they were unlikely to face violence. The article made no mention of Sikh/Christian marriages. The article also said that children of inter-faith marriages were generally treated well, particularly in urban areas. Violence against inter-faith children was unlikely.
·A Wikipedia entry entitled ‘Jat reservation agitation’, which referred to a series of violent protests in February 2016 by the Jat people of North India. The article provided a background to the protest and the timeline. The protest appeared to be a political disagreement.
·An article from BBC entitled ‘India caste protests: Five dead as Haryana violence flares’ dated 20 February 2020. The article reported incidents that were related to a series of protests in the northern Indian state of Haryana.
·An article by Dr Dharmendra Kumar Singh entitled ‘Inter-Caste or Inter-Religious Marriages and Honour Related Violence in India’ published in June 2017 in the International Journal of Humanities and Social Science Invention. The article explores honour killings perpetrated against inter-caste or inter-religious couples, which are mostly reported from the States of Haryana, Punjab, Rajasthan and UP and Bihar, the legal framework in India and the judicial response to honour killings.
·An article by Jim Yardley entitled ‘In India, Castes, Honor and Killings Intertrine’ published on 9 July 2010 in The New York Times. The article reported the murder of Ms Nirupama Pathak who was secretly engaged to a man from a lower caste.
·An article by Ilangovan Rajasekaran entitled ‘In the name of honour’, dated 13 March 2020, which reported several instances of honour killings in India.
·A letter from [Real estate agency] [Suburb 4] to the applicant and [named person] in relation to their purchase of a property. It encloses a [Bank] home loan account statement.
·Several pictures depicting people who appear to be the applicant with a woman and a little child.
·An Appeal Listing Notice dated [November] 2020 in relation to the applicant’s criminal charges, bearing case numbers [deleted], enclosing an application for a grant of bail and an affidavit of [a named person].
After the hearing a number of internet articles were provided to the Tribunal as follows:
·A news article from The Indian Express dated 4 December 2021, entitled ‘Hours after wedding, bride shot at in Rohtak, critical’, which reports an incident in which a bride was killed when going home with her husband after their wedding.
·A news article by Tarsem Singh Deogan of Hindustan Times dated 30 November 2021, entitled ‘Toddler kidnapped, buried alive in Ludhiana: Mother had called up accused after her girl went missing’, which states that a woman kidnapped her neighbour’s daughter and killed her by burying her alive.
·A news article from NDTV dated 5 November 2019, entitled ‘Upset With Daughter's Marriage, Man Drives Car Into Canal, Kills Self, Family’, which states that a man in Haryana drove his car with his wife and son in the car into a canal because he was upset that his daughter married a man against their wishes.
·A news article from NDTV dated 8 August 2018, entitled ‘Woman, Police Officer Shot Dead In Haryana’, which reports that a woman was shot dead in Haryana in a suspected honour killing case. A police officer was reported to have been killed when defending the woman.
·A news article by Mohammed Ghazali from NDTV dated 31 December 2020, entitled ‘Haryana Woman, Husband To-Be Shot Dead By Uncle In Rohtak: Police’, which states that a woman and her husband-to-be were allegedly shot dead by the woman’s uncle in what appeared to be an honour killing.
·A news article by Mukesh Singh Sengar from NDTV dated 26 June 2021, entitled ‘Couple Sought Protection. Nearly A Year Later They Were Shot At Delhi Home’, which states that a man, who married a woman against the wishes of her family, was attacked and killed. His wife was reportedly severely injured. The attackers were believed to be the wife’s relatives.
·A news article from WIRE dated 15 October 2021, entitled ‘Singhu Border Killing: “Religious Issue” and “Conspiracy to Derail Farmers’ Protest”, Says SKM’, which reports the killing of a man by allegedly Nihang men, an armed Sikh warrior sect of Sikhism, in what appeared to be a religiously motivated attack.
·A news article from dated 22 October 2021, entitled ‘Singhu border murder: Accused Nihang had taken victim Lakhbir to protest site, Punjab govt forms SIT’, which reports the same incident as the WIRE article dated 15 October 2021.
[Ms A] provided an additional statement to the Tribunal after the hearing. The statement includes reasons why, in the hearing, [Ms A] indicated that no financial penalty had been imposed on the applicant’s family as a result of the applicant’s failure to go ahead with the arranged marriage, despite claims to the contrary. It is stated that [Ms A] was not privy to this information.
The statement goes into significant general detail as to the religious, caste, political and media landscape in India and makes references to broader incidents of harm, difficulties and events not pertaining directly to the applicant. There is reference to the practical difficulty of relocation. There is reference to instances of harm that are submitted as pointing to the risk of intentional harm that would be suffered by the applicant due to his mental health issues. It is submitted that the applicant is more likely to be manipulated and used by other people. The applicant will be seen as a threat to the culture.
It is submitted that the environment in India is much more problematic than it was 10 years ago. A fear is expressed that the applicant will kill himself in his circumstances, including his poor mental health condition. Emails are provided between the applicant and his lawyer in his criminal proceedings in which the applicant indicates that he will kill himself. It is indicated that the risk to the applicant will be exacerbated by the fact that the applicant will be separated from his [child].
It is indicated that the applicant’s offences are a product of his poor mental condition due to severe depression and coercive control from his wife.
A written submission dated 9 December 2021 was provided following the hearing by the applicant’s migration agent. It reiterates claims of harm based on the applicant’s conversion to Christianity and due to his marriage in Australia against the wishes of his parents, when there had been an arranged marriage planned in India. It is indicated that the local Panchayat kill in the name of honour.
There is detail provided of the applicant’s interest in Christianity due to his relationship with [Ms J]. There is detail provided of the applicant’s subsequent relationship and the difficulties that resulted, including excessive control by his partner. The applicant was compelled to plead guilty to the assault charges.
It is submitted that there is extreme vulnerability for the applicant in India due to his mental health issues and that India does not have the resources available to take care of mental health patients like him. The applicant has had suicidal ideation and self-harm ideation that make him unable to decide clearly, and take action appropriately in a particular situation. It is submitted that the applicant’s separation from his biological child in Australia will cause him significant damage emotionally and psychologically. These circumstances will have a crippling effect on the applicant mentally.
It is indicated that the applicant states that there is no one to care for him India.
Also provided following the hearing was:
·A NSW statutory declaration from [the] applicant’s solicitor in his criminal matter, dated 7 May 2021. The declarant recalls the advice he gave the applicant in relation to the applicant’s criminal charges and the applicant’s insistence on pleading guilty against the author’s advice under the impression that he would be able to see his child if he pleaded guilty.
·A letter from [Ms A] dated 20 September 2020. The author recalls the applicant’s troublesome marriage and the applicant’s struggle with alcohol and mental health.
·NSW statutory declaration from [Ms A] dated 2 May 2021 which declares that the applicant suffers from depression and alcohol abuse. The declarant also recalls the applicant’s troublesome marriage.
·A NSW statutory declaration from [a named person] dated 4 May 2021 which declares that the applicant is a person of good moral character.

In making its assessment the Tribunal has taken into account all of the material provided by or on behalf of the applicant.
Independent information
The 2020 DFAT report on India provides the following information (underlining added):
ECONOMIC OVERVIEW
2.23 India’s economy is of global importance. It has been one of the world’s fastest-growing large economies in recent years – although 2019 marked a slowdown, with the International Monetary Fund (IMF), Moody’s and the Reserve Bank of India downgrading GDP growth estimates to 5 per cent from a high of 7 per cent in 2018. At that time, across industry, several sectors faced a slowdown, most notably in the automotive industry, resulting in job losses and fears other labour-intensive sectors may follow suit. The slowdown has been evident by the lack of growth particularly in wages, jobs, sales and consumer demand. Boosting private sector investment and FDI has been a key focus for the Modi government in its first and second term, and it is charting an ambitious economic reform agenda. This has resulted in India rising in the World Bank’s Ease of Doing Business rankings from 130 in 2016 to 63 in 2020.
2.24 India’s economy has been impacted sharply by the COVID-19 pandemic, resulting in it entering its first ever technical recession in its second quarter of FY2020-21. Its recovery continues to gather pace, however, and is widely expected to return to sustained levels of growth from 2021 onwards (the IMF expects India to recover to 8.8 per cent in 2021, with growth moderating afterward).
2.25 The Indian Government has passed three fiscal stimulus packages in response to COVID-19. Total spending has amounted to around AUD478 billion, with most initiatives focusing on liquidity support and risk underwriting for small and medium-sized enterprises. PM Modi’s ‘Atmanirbhar Bharat’ (‘Self-Reliant India’) agenda seeks to boost domestic manufacturing, attract foreign investment, encourage domestic consumption, and reduce reliance on imports.
2.26 Unemployment rates pre-COVID-19 were high, particularly among the youth. Pre-COVID data suggests employment rates in the agriculture, manufacturing and construction sectors had been declining since 2012 resulting in a significant rise in youth unemployment, including among those who are educated (see Employment). Researchers note rural consumption rates have been falling faster than urban consumption rates as a continued knock-on effect on the rural economy from demonetisation (in 2016 the Indian Government withdrew certain currency as legal tender from the Indian economy) and implementation of a goods and service tax.
2.27 The World Bank classifies India as a lower middle-income country. Gross National Income on a per capita basis was USD2,130 in 2019. There are significant disparities between income levels across the country. India ranked 129 out of 189 in the UN’s 2019 Human Development Index. Since 2000, India has made significant progress in reducing absolute poverty, although gains from economic growth and poverty reduction remain uneven. [1]
[1] DFAT, Country Information Report – India, 10 December 2020, para [2.23] – [2.27].
[…]
Health
2.32 India’s health system faces a number of challenges including a diverse health profile, an acute shortage of infrastructure and a lack of skilled health sector workers. Article 47 of the constitution devolves responsibility to the states to raise the level of nutrition and the standard of living, and to improve public health. Consequently, a large disparity exists between the services and health outcomes of each state, and between urban and rural areas. According to World Bank data, India has 70 beds for every 100,000 people (compared to 380 in Australia, or a global average of 270). Brookings India reports 12 Indian states, accounting for around 70 per cent of India’s population, have less than the national average of 55 public hospital beds per 100,000 people (Bihar, Jharkhand, Gujarat, Uttar Pradesh, Andhra Pradesh, Chhattisgarh, Madhya Pradesh, Haryana, Maharashtra, Odisha, Assam and Manipur).
2.33 Domestic public health expenditure was 1.0 per cent of GDP in 2017 (compared to 6.3 per cent in Australia), according to the World Health Organization. The Modi government has set a goal of increasing public health expenditure to 2.5 per cent of GDP by 2025.
2.34 Low public health investment has led to a heavy reliance on a weakly regulated private sector. With the majority of health care expenditure in the private sector – non-profit and private hospitals provide 70 per cent of health care in India – a large proportion of the population is vulnerable to poverty in the event of a catastrophic illness. India liberalised the health sector in 2000 to allow the private sector into the market, and health insurance is a growing market segment. Health insurance pays for in-patient hospitalisation and treatment at hospitals.
2.35 Life expectancy, national immunisation coverage, infant mortality and maternal mortality rates have improved nationally, however, the rural-urban disparity is considerable. Life expectancy is 70 years for females (68.7 in rural areas; 73.5 in urban) and 66.9 years for males (65.6 rural; 70.5 urban). Nationally, infant mortality is around 37 per 1000 live births (41 per 1000 in rural settings; 25 per 1000 in urban settings). Fertility is declining rapidly, including among the poor and illiterate. The total fertility rate has fallen below two children per woman in 12 states, while nine states have reached replacement levels of 2.1 and above. Delhi, Tamil Nadu and West Bengal have the lowest fertility rates. Overall, maternal mortality has decreased. Assam has the highest maternal mortality rate at 300 per 100,000 live births, while Kerala has the lowest at 61 per 100,000 live births. The government attributes improved health indicators to the increasing penetration of health care services across the country, extensive health campaigns and sanitation drives, an increase in the number of hospitals in India, improved immunisation and growing literacy.
2.36 In April 2018, the government announced the Ayushman Bharat health insurance scheme to provide cashless and paperless treatment in participating public and private hospitals to India’s poorest households. The scheme covers three days of hospitalisation and 15 days post-hospitalisation, including diagnostic care and medication expenses. An estimated 500 million persons, or 40 per cent of the country's population, are eligible beneficiaries. While welcoming its intent, some commentators have expressed concern the scheme does not go far enough; it does not cover indirect costs associated with hospitalisation, such as transport costs and lost wages. Other concerns include the benefit ceiling (500,000 rupees; approx. AUD9,250) leaving patients with a large gap for some procedures; the scope for corruption; and insufficient budget allocation.
2.37 Since 2017, the government has turned its attention to increasing health spending, improving the availability and efficiency of services, and allowing individual states more autonomy to implement health programs. Disparities between public health services in India’s diverse states remain stark.
2.38 The COVID-19 pandemic has placed strain on India’s health infrastructure, particularly in the more densely populated and less well-equipped states of northern and central India. As at 26 November 2020, India had exceeded 9.2 million cases of COVID-19 (and over 135,000 deaths), and was the second-ranked country by the number of confirmed cases globally. India’s cumulative confirmed cases equate to around 6,880 per one million of population (compared to around 41,400 per million in the United States and 1,095 per million in Australia). In April 2020, the government amended the Epidemic Diseases Act to introduce fines and jail terms for assaults on health workers, after reports of workers facing ostracism, harassment and assault throughout the COVID-19 response.
Mental Health
2.39 Access to mental health care is difficult and patients are subject to stigma and discrimination. In July 2017, the Mental Healthcare Act (MHC Act) came into force, repealing the earlier Mental Healthcare Act (1987), which had been widely criticised for not recognising patients’ rights. Interest groups consider the MHC Act an improvement as it contains a ‘right to mental health care’ and repeals section 309 of the Penal Code (1860), which had criminalised attempted suicide by a mentally ill person. Other policy and programmatic interventions in this area include the National Mental Health Programme, 1982; and the District Mental Health Programme, 1996. In 2014, the government released the first National Mental Health policy of India, ‘New Pathways New Hope’, and in 2016 undertook the first National Mental Health Survey of India.
2.40 Access to mental health care is not uniform across the country, with availability of services significantly more limited in rural areas than in urban cities and large towns. Across the country, an estimated 150 million people (12.5 per cent of the population) are in need of active interventions for mental illnesses, including nearly 12 million who are living with serious mental disorders. Given the shortfall of specialist and health services for mental illness, treatment is often unavailable or inaccessible even for those who actively seek health care.
2.41 According to India’s National Health Profile 2018, there are 43 government mental health hospitals in India. West Bengal has five facilities; Gujarat and Maharashtra have four; Kerala and Uttar Pradesh have three; Jharkhand, J&K, Karnataka, Madhya Pradesh and Rajasthan have two; and the remaining states have one facility each. India has fewer than 4,000 mental health trained professionals – fewer than one per 100,000 population. Most services are located in major cities, which often leads to local healers and nonqualified providers being the first point of care, even for serious mental health conditions.
2.42 In practice, mental health programs continue to suffer from severe constraints in technical, human and material resources, and remain a low priority on the public health agenda. A 2017 WHO report that examined improving access to, and the appropriate use of, medicines for mental disorders found significant barriers to accessing medicines at all levels of the health care system. Many barriers are linked to stigma associated with mental disorders, duration and costs of treatment, and, in many areas, the geographical distance from health care providers. [2]
[2] DFAT, Country Information Report – India, 10 December 2020, para [2.32] – [2.42].
[…]
Employment
2.48 According to the International Labour Organization (ILO), approximately 67.7 per cent of the population is of legal working age (15 to 64 years). In 2018, the labour force participation rate was 48 per cent (men 74.6 per cent; women 20.8 per cent). The ILO estimated a total unemployment rate of 5.4 per cent in 2019, with youth unemployment at 23.3 per cent (see Economic Overview). Much of India’s labour market is not organised and these figures may not accurately reflect the rates of unemployment. As noted above, unemployment rose significantly in the first half of 2020 as a result of job losses sustained during the COVID-19 pandemic. India’s October 2020 unemployment rate was 6.98 per cent (urban rate 7.15 per cent; rural rate 6.90 per cent), according to data from the Centre for Monitoring Indian Economy.
2.49 The vast majority of working people are employed in the informal sector. Individuals in this sector experience low job and income security, as well as lower coverage by social protection systems and employment regulation. Over time, workers have been shifting out of the agriculture sector and into the services and manufacturing sectors. However, many of those who are more educated, particularly graduates, cannot find suitable employment. In 2019, graduates aged 20-24 years reported an unemployment rate of over 60 per cent, with non-graduates in this age-group reporting 37 per cent unemployment. [3]
[3] DFAT, Country Information Report – India, 10 December 2020, para [2.48] – [2.49].
[…]
SECURITY SITUATION
2.64 The security situation in India varies over time and from place to place due to its size and diversity. Civil unrest, including violent rioting, is not uncommon. Drivers of civil unrest are complex and varied and may include: tensions between different religious, social and ethnic communities (see Religion, Caste System and National Register of Citizens); insurgencies, terrorist attacks or protests motivated by ideological or political objectives; tensions along disputed border areas; and tensions within communities over issues such as land ownership and marriage-related disputes.
2.65 Crime rates across India vary. Over 5 million cognisable crimes (crimes allowing arrest without a warrant) were reported in 2018, according to government statistics. This represented a rise of 1.3 per cent over the previous year. Crime rates are significantly higher in large cities. Most Indians live their lives with a relatively moderate risk of criminal violence, although violence against women and LGBTI individuals occurs at higher incidences (see Women and Sexual Orientation and Gender Identity).
2.66 Misinformation spread on social media occasionally leads to violence. Rumours spread using social media platforms, such as Facebook, Snapchat, Twitter, WhatsApp and YouTube, about alleged crimes including child sexual abuse or human trafficking have led to occasional vigilantism. These events are unpredictable, but tend to occur in rural areas and tend to be localised. In 2020, there was a proliferation of unverified messages and misinformation communicated on digital platforms about the COVID-19 pandemic, contributing to a sense of panic and alarm during the crisis. [4]
[4] DFAT, Country Information Report – India, 10 December 2020, para [2.64] – [2.66].
[…]
RELIGION
3.19 Religion plays a significant role in daily life in India. According to 2011 census data, almost 80 per cent (more than 1 billion people) in India are Hindus. Another 14.2 per cent are Muslims (just under 200 million), 2.3 per cent are Christians (around 32 million), 1.7 per cent are Sikhs (just over 23 million) and less than 1 per cent are Buddhists (just under 10 million). A further 1.3 per cent (around 18 million) follow other religions including Jain, Zoroastrian, Jewish and Baha’i faiths, and tribal religions.
3.20 The level of communal violence (between different religious communities) has ebbed and flowed since independence, but remains an issue in India. Official data shows more than 822 incidents of communal violence in 2017, with around 7,484 communal incidents reported over the 2008-17 period, or two incidents a day, killing more than 1,110 people. The actual figures are likely higher as many incidents go unreported. Religious minorities are especially vulnerable to the threat of communal violence. Muslims, while less than 15 per cent of the population, have typically made up the majority of victims.
3.21 Article 15 of the constitution prohibits discrimination against any citizen on the grounds of religion. Article 25 guarantees the right to freely profess, practise and propagate religion, and Article 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. National law provides minority community status to six religious groups: Muslims, Sikhs, Christians, Parsis, Jains and Buddhists. State governments can grant minority status to religious groups that are minorities in a particular region.
3.22 In 1992, the Government of India set up the National Commission for Minorities (NCM), under the National Commission for Minorites Act. The Act extends to the whole of India and has the powers of a civil court. Five religious communities were included under the Commission’s remit: Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis). Since 2014, the Jain community has also been included. State Minorities Commissions exist in Andhra Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Jharkhand, Karnataka, Maharashtra, Madhya Pradesh, Manipur, Rajasthan, Tamil Nadu, Uttarakhand, Uttar Pradesh and West Bengal. The functions of these Commissions, like the NCM, are to safeguard and protect the interests of minorities provided in the constitution and laws enacted by Parliament and the State Legislatures. Aggrieved persons belonging to minority communities may approach the relevant State Minorities Commission for redressal of their grievances. They may also approach the NCM, after exhausting all other remedies available to them.
3.23 In 2018-19, the NCM received 1,871 complaints and heard 44 cases. In 2013-14 (the period encompassing the May 2014 national election), 2,638 complaints were received, the highest number over a ten-year period (2009-19). The top three complaints consistently relate to matters of law and order, service and education. The top three minority complainant communities are Muslim, Sikh and Christian.
3.24 In 2006, the Ministry of Minority Affairs (MMA) was established. Its mandate is to formulate overall policy and planning, coordination, evaluation and review of the regulatory framework and development of programs for the benefit of minority communities. Like the NCM, minority communities under its remit are Muslim, Christian, Buddhist, Sikh, Parsis and Jain. The MMA implements various national schemes across educational and economic empowerment, infrastructure development, special needs and financial support to institutions.
3.25 The Lok Sabha passed the Citizenship (Amendment) Act (CAA) on 11 December 2019. It came into force on 10 January 2020 and makes religion a criterion for citizenship for the first time. International observers have expressed concern about the CAA. The UN High Commissioner for Human Rights said the law was ‘fundamentally discriminatory’.
3.26 Researchers and lobby groups state government officials can be indifferent or complicit in acts of targeting religious minorities. In 2019, Forbes Magazine claimed ‘the discrimination of religious minorities in India is far-reaching and deeply enshrined in law.’ The article cited anti-conversion and anti-cow slaughter laws being used to discriminate against religious minorities or ‘to justify extrajudicial killings, violence and forced conversions of non-Hindus to Hinduism.’ In 2019, Amnesty International reported ‘scores of hate crimes’ against Muslims and other religious and ethnic groups across the country. Human Rights Watch (HRW) reported incidents of mob violence against minorities, especially Muslims, by extremist Hindu groups, and claimed the government was criticised ahead of the 2019 elections for failing to stop such attacks. HRW notes, however, that PM Modi called for inclusive politics after the elections. The Indian Government has rejected as ‘biased’ the United States Commission for International Religious Freedom (USCIRF) 2019 report, which designates India as a country of particular concern for engaging in or tolerating religious freedom violations.
Conversion and anti-conversion laws
3.27 Seven Indian states have almost identical laws regulating religious conversion and require notification, or sometimes permission, of the local government before an individual can change their religion. These states are home to almost 90 per cent of India’s STs, have high populations of Dalits and OBCs, high levels of poverty and illiteracy, and poor health care. Some analysts claim anti-conversion laws are linked to Hindu nationalists’ fear that Dalits and others treated as low-caste will leave Hinduism and shed their caste status, which is deeply entrenched in Hinduism.
3.28 State anti-conversion laws (ACLs) were first adopted in 1967 in Odisha, followed by Madhya Pradesh, Gujarat and Himachal Pradesh. Chhattisgarh inherited Madhya Pradesh’s law when the state was partitioned in 2000. ACLs have also been passed in Jharkhand (September 2017) and Uttarakhand (April 2018). While Arunachal Pradesh has ACL laws dating back to 1978, they have not implemented rules for enforcement. Tamil Nadu adopted ACLs in 2002, but repealed them in 2004. Rajasthan’s 2006 ACL laws, remain unsigned by the State’s Governor. Assam, Manipur and Maharashtra are also reportedly considering adopting ACLs.
3.29 ACLs do not directly ban conversion; instead, they ban conversions by means of ‘force, allurement, inducement or fraud’. These terms have no precise definition and in practice provide the administration and its agents wide powers of arrest. For example, Jharkhand’s penalties are three years imprisonment and a 50,000 rupee fine (approx. AUD1,000) or, if the convert is a minor, woman, or member of a SC or ST, four years’ imprisonment and a 100,000 rupee fine (approx. AUD2,000). The laws of Gujarat, Madhya Pradesh and Himachal Pradesh make it incumbent upon neighbours or villagers to inform the administration and the police of any activities of pastors, nuns and clergymen, which could give rise to a suspicion of proselytising motives. Christian advocacy group Open Doors claims ACLs are used to make false accusations of coercion against ‘those who have genuinely become Christians from a Hindu background’ and those who have introduced them to Christianity. While conversion from Hinduism to other minority religions is closely scrutinised and can trigger criminal charges, conversion (including forced conversions) of non-Hindus to Hinduism occurs, with no legislation addressing ‘reconversion’.
3.30 Reconversion (‘ghar wapsi’ programs) are carried out by a number of Hindu organisations. In January 2019, media reported 96 Christians were converted in a ghar wapsi ceremony in Tripura. According to media reporting in 2014, the Hindu nationalist organisation Dharm Jagram Samiti (DJS) claimed to have re-inducted over 600,000 people into Hinduism since 1966, with DJS’s head in Uttar Pradesh stating their target was to make India a Hindu state by 2021. Some commentators view the government’s silence on the issue of ghar wapsi as tacit approval of the practice.
3.31 Local sources report instances of violence linked to religious conversion. According to Indian nonprofit organisation Persecution Relief, in February 2019, 40-year old Anant Ram Gand, a Christian convert, was beheaded in Raigarh Tehsil, Odisha. Villagers who had opposed his conversion nine months earlier allegedly armed local Naxals to carry out the murder, claiming the man would reveal Naxal secrets to the police. A week before the attack, seven villagers had reportedly given Gand an ultimatum to renounce Christianity or face death. In February and May 2019 respectively, two men were killed in Chhattisgarh following opposition to their conversion to Christianity. On 24 October 2019, a Christian, Pastor Saanvi, was beheaded in Odisha after warnings to stop his ministry work. [5]
[5] DFAT, Country Information Report – India, 10 December 2020, para [3.19] – [3.31].
[…]
Christians
3.54 Christians constitute approximately 2.3 per cent of the total population. According to the 2011 census (latest figures), there are 27.8 million Christians in India. The largest Christian denominations today are Roman Catholics, Syro-Malabar Catholics, Malankara Orthodox Syrians and various Protestant denominations. Christianity is the dominant religion in the northeastern states of Nagaland, Mizoram, Meghalaya and Manipur while they make up substantial populations in the states of Arunachal Pradesh, Kerala, Tamil Nadu, Goa, and Andaman and Nicobar Islands.
3.55 A rise in Hindu nationalism has coincided with increasing incidents of violence and discrimination against Christians. Christians have increasingly faced poorly founded legal proceedings and police reports, difficulties for churches and NGOs dealing with local government authorities, public statements by officials denigrating Christians, and threats or acts of violence. India ranked 10th on Christian support organisation Open Doors’ 2020 World Watch List of countries where Christians experience the most discrimination (see Conversion and anti-conversion laws). The organisation claims discrimination is strongest for converts; police rarely intervene when Christians are harassed; and Christians are monitored online and in their communities (but did not specify by whom).
3.56 NGOs report Christians’ often intersecting identities – as Adivasis or as Dalit Christians – can exacerbate the socio-economic, political, and cultural discrimination they face. Dalit Christians and Muslims face similarly high levels of intersectional discrimination. The lack of official recognition of Dalit Christians as SCs according to the Constitution (Scheduled Caste) Order, 1950, prevents them from accessing reservations, including certain protections and benefits, available to Dalit Hindus, Sikhs and Buddhists. Dalit Christians are estimated to comprise 8.1 million (roughly 30 per cent of the 27 million Christian population). Together with tribal people, who form a further 30 per cent, these socially and economically poor groups constitute the majority of Indian Christians.
3.57 US online news agency National Catholic Reporter reports India’s Christians, and Muslims have faced increased discrimination in recent years. National Catholic Reporter claimed in October 2019 ‘coordinated efforts are in place to shut down institutions’. On 8 October 2020, India’s National Investigation Agency in Jharkhand arrested elderly Jesuit priest Father Stan Swamy on terrorism charges, in connection with a 2018 incident of caste-based violence and alleged links with Maoists (see Naxal Movement (Maoists)). Swamy, a critic of the government and advocate for indigenous people, denied the charges. The arrest followed raids on his home in June 2019 and August 2018. In a statement on 20 October, the UN High Commissioner for Human Rights raised concerns about human rights in India, including specific mention of Swamy’s case.
3.58 A March 2019 Newsweek report claimed that, in 2018, more than 100 churches were shut across Madhya Pradesh, Rajasthan, Tamil Nadu, Uttarakhand and Uttar Pradesh, citing building codes and/or panchayat building rules. Newsweek claims the actual number of churches affected is likely higher as figures do not include remote parts of India where records are more difficult to collect.
3.59 In 2017, one of India’s largest Christian charities, the US-based Compassion International, was forced to close its operations in India after 48 years, after the government did not grant approval for it to transfer funds into the country amid allegations the organisation was funding religious conversions. The closure was reportedly part of moves to curtail foreign funding of activities deemed by the government ‘detrimental to the national interest’ (see Human Rights Organisations). Until its closure it had repeatedly ranked as India’s largest single foreign donor, transferring around USD45 million a year. In 2020, Indian authorities suspended the Foreign Contribution Regulation Act (FCRA) licenses of four Christian NGOs working in Jharkhand, Manipur and Mumbai, for unspecified reasons.
3.60 In its 2019 annual report, the Indian organisation Persecution Relief recorded 527 attacks against Christians in India, a 10.27 per cent increase of incidents from 2018. Persecution Relief claims the actual figures for violence are likely much higher than those reported. Uttar Pradesh recorded the most incidents, followed by Tamil Nadu. In the period 2016-2019, Persecution Relief recorded 1,774 incidents. Threats, harassment and intimidation were the most common forms of discrimination, followed by church attacks and physical violence.
3.61 DFAT assesses most Christians live day-to-day with low levels of societal discrimination and violence, although incidents of communal violence against Christians have increased with the rise of Hindu nationalism. DFAT assesses Christian converts and activists, and Christians who are involved (or are perceived to be involved) in proselytisation, particularly to Hindus, face a moderate risk of official and societal discrimination. DFAT assesses the risk is higher for Dalit converts and Christians considered to be of a low caste, given their intersectional identities.
Sikhs
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).
3.63 India’s Sikh population has suffered from issues surrounding recognition. The constitution groups Sikhs, Buddhists and Jains with Hinduism; therefore they are not legally recognised as distinct religions.
3.64 One of the points of difference between Sikh groups is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. During the internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984, the Indian government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The army bombarded the Golden Temple complex, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.
3.65 In retaliation for Operation Blue Star, two of then-Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days following, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which allegations emerged of torture, extrajudicial killings and deaths in custody carried out by security forces.
3.66 NGOs report communal violence disproportionately affects India’s religious minorities, in particular Muslims, but also Christians and Sikhs, who face varying degrees of socio-economic, cultural and legal discrimination. Reports of minor cases of violence against Sikhs occur. Media sources have reported isolated incidents involving Sikhs and the police in recent years: - After a road accident in Mukherjee Nagar Delhi, in July 2019, an argument broke out between a Sikh ‘tempo’ driver and police, during which police beat the driver. After an inquiry, the police involved were dismissed from duty for ‘unprovoked, indiscreet and highly unprofessional’ behaviour. - A 2018 article by Punjab-based Sikh Siyasat News (SSN) reported a mob attack in Karnataka injured a Sikh man and led to six arrests. The police report indicated the man was mistaken by the mob to be a ‘child lifter’ and the villagers, ‘unaware of [its] significance,’ mistook his kirpan (small sword used as an article of faith in Sikhism) as a weapon. - Another 2018 SSN article indicates a family reportedly attacked in Haryana detailed police inaction on their case, and the police threatened to charge the family instead.
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. 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.
3.68 DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.[6]
[6] DFAT, Country Information Report – India, 10 December 2020, para [3.54] – [3.68].
[…]
Marriage (inter-faith, inter-caste)
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. According to researchers, around 10 per cent of all marriages in India take place between different castes while around 2.1 per cent of marriages are inter-faith.
3.135 The Special Marriage Act 1954 (SMA) is the secular marriage law in India, which enables inter-faith and inter-caste marriages, and is an alternative to each of the personal laws. 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 that provide solemnisation of marriage under religious rites. As an example, in 2019, according to official data, of the 19,250 marriages registered in Delhi, 3 per cent were inter-faith marriages (and registered under the SMA).
3.136 The Hindu Marriage Act allows members of the Hindu, Buddhist, Jain or Sikh religions to intermarry without declaring detachment from their religion. Under Muslim personal status laws, only Muslim men are permitted to marry kitabia (members of the Christian or Jewish religions); Muslim women are prohibited from marrying non-Muslims. If a partner is a Christian, it may be possible to marry under Christian rites through the Indian Christian Marriage Act, 1872.
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. In August 2019, in Haryana, when a shopkeeper’s daughter reportedly left her family to marry a tailor of a different religious community, people blocked a highway and forced shopkeepers to keep shutters down, demanding the bride be ‘returned’ to her parents. The couple sought protection from the state High Court. In May 2019, a newlywed couple was reportedly set on fire in a village in Maharashtra because the woman’s family was opposed to their inter-caste love marriage.
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.
3.139 One reason for social disapproval of mixed marriages in India is that inter-faith marriage generally takes place after one of the parties converts to the other’s religion, despite this being unnecessary under the SMA. While the constitution guarantees freedom of conscience and free profession to all (Articles 25- 28), for some sections of the majority community, conversion has been and remains a sensitive issue.
3.140 Hindu nationalists have used the term ‘love jihad’ to allege Muslim extremist groups are leading an organised campaign to coerce Hindu women to marry Muslim men and convert to Islam. DFAT has found no evidence of Muslim men coercing Hindu women into marriage for the purposes of proselytisation.
3.141 Other intermixed unions perceived to be less socially accepted are those between rich and poor, and Dalit and non-Dalit Hindus.
3.142 Practical matters such as renting property, obtaining a passport or boarding flights can be difficult for such mixed unions. 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.
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. 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.[7]
[7] DFAT, Country Information Report – India, 10 December 2020, para [3.134] – [3.144].
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 inquiries 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.
The applicant was asked at the commencement of the hearing if there were impediments to him in answering the Tribunal’s questions and talking about his claims. In response the applicant indicated that he has difficulty in remembering things, talks in incomplete sentences and sometimes goes off on a tangent.
The Tribunal acknowledges not insignificant mental health issues faced by the applicant based on evidence provided. The applicant in the hearing at times meandered in response to questions and was non-responsive. At other times, the applicant appeared to understand questions and responded reasonably cogently. On the whole the Tribunal was able to explore relevant issues with the applicant and mostly obtain responses, including on adverse issues put to him.
The Tribunal has credibility issues with core claims made by the applicant as to why he faces requisite harm in India based on religion and not entering into an arranged marriage.
Firstly, in the applicant’s written claims for protection made in 2016 he makes a claim of harm only on the basis of his having converted to Christianity. Significantly, no claims are made as to harm in India based on him not having entered into an arranged marriage which he has not proceeded with, which are now his key claims.
In response to this issue put in the hearing, the applicant indicated that at this time many things were going wrong in his life, including the end of his marriage and an injury to his elbow. The implication from the applicant is that these various difficulties caused such difficulty and confusion in his life that he did not mention the issue of his arranged marriage.
Even taking account of difficulties for the applicant time of application, the Tribunal does not accept, if the applicant had serious concerns for his safety in India from his family as a result of not going ahead with an arranged marriage. that this information would not have been included in the written application for the protection visa. The Tribunal notes that the evidence of both the applicant and his sister in the hearing was that they had been significant adverse issues prior to 2016 as a result of the arranged marriage not going ahead. This reinforces that the issues were live at the time the protection visa application was made.
The absence of the initial written claims for protection indicating difficulties faced by the applicant and his family as a result of not entering into an arranged marriage is undermining of either the truth of those claims or at least their seriousness.
Secondly, the applicant’s circumstances and current situation in relation to his religion do not support a claim that the applicant faces harm as a result of his religion, including his past conversion to Christianity. A claim based on the applicant’s changed religion is the basis on which the 2016 written claims for protection are made.
In the hearing, the applicant indicated that he currently has no religion and would have no religion on return to India. The applicant maintained in the hearing, however, that he would face requisite harm on return to India as a result of his religion. However, given that the applicant would have no religion on returning to India, the applicant was not able to cogently explain to the Tribunal why he would face requisite harm on this basis.
The applicant’s migration agent submitted that the applicant would have no religion because of his mental health issues. This was not indicated by the applicant in the hearing. The Tribunal is of the view that applicant generally has no desire or motivation to practice a religion.
Given the applicant’s evidence in the hearing that he would have no religion on return to India, the Tribunal does not consider that the applicant would face requisite harm on return to India based on his religion. The Tribunal is not satisfied that the applicant, having previously converted to Christianity in Australia would, a number of years later, face requisite harm in India based on the past conversion despite a claim to the contrary. As discussed in the hearing, no independent information has been provided nor would information in the DFAT report suggest that difficulties in India would be faced on the basis of a past conversion to Christianity, particularly when there was no current religious practice.
Thirdly, inconsistent evidence has been given as to whether the village panchayat imposed a financial penalty on the applicant’s family as a result of the marriage not going ahead. In the interview with the delegate, the applicant indicated that there was a claim by the parents of the girl for financial compensation and that the applicant’s paternal grandparents ended up paying compensation.
This is inconsistent with evidence given by both the applicant and his sister in the hearing that there was no financial compensation paid. The penalty was social ostracism. This inconsistency was pointed out in the hearing.
While the applicant’s sister indicated following the hearing that she may not have been informed as to the fine, there is still the inconsistent evidence of the applicant as to whether there was a financial penalty.
There was not an adequate explanation for this inconsistency.
This inconsistency creates credibility concerns for the Tribunal as to the claims of the circumstances surrounding difficulties suffered by the applicant’s family as a result of the applicant not going ahead with an arranged marriage.
Fourthly, contextual credibility issues in relation to issues surrounding the arranged marriage are reinforced by inconsistent evidence provided by the applicant as to the situation of the applicant’s paternal grandparents as a result of the applicant not entering into the arranged marriage. In the hearing, the applicant indicated that his paternal grandparents lived in the same village as his parents and that his grandmother had died before he came to Australia, and that his paternal grandfather died in the village after the applicant came to Australia.
This is inconsistent with evidence given by the applicant in the interview with the delegate that his paternal grandparents were driven from the village as a result of the issues resulting from the arranged marriage not going ahead. The applicant did not explain this inconsistency in the hearing other than to maintain that his paternal grandparents did not leave the village.
This inconsistency, on a contextual matter, creates credibility concerns for the Tribunal as to the applicant’s claims as to the circumstances following the arranged marriage not going ahead.
Fifthly, the applicant’s return to India to visit his sick mother in 2016 is inconsistent with other claims of a severe breakdown in the relationship between the applicant and his parents. The applicant had previously given evidence that his parents told him to never return to India. The applicant had indicated previously that he decided never to return to India. The applicant’s sister’s written claims indicate that the applicant has broken all ties with his parents due to the arranged marriage issues.
In response to the seeming inconsistency between these claims and the applicant returning to India in 2016 to visit his sick mother, the applicant referred to the childhood bond with his mother and that his sister had said that she might pass away and so he returned to see her one more time.
The Tribunal can understand the desire of a child to visit a dying parent even when there have been past issues of disagreement. Nevertheless, the applicant’s multiple claims of a significant breaking of contact with his parents is not entirely consistent with the applicant returning to visit his sick mother.
This is not a determinative adverse credibility issue but it is considered cumulatively together with more significant matters.
Sixthly, the delay by the applicant until 2016 in making the application for the protection visa is undermining of the truth or extent of claims that the applicant faces harm in India either as a result of issues flowing from the lack of proceeding with the arranged marriage or from the applicant’s conversion to Christianity following a marriage in 2011. In hearing, the applicant had indicated that difficulties from the arranged marriage had arisen well before 2016, including when the applicant was in India in 2008.
In response to the issue of delay put to the applicant in the hearing, he indicated that he was seeking permanent residence in Australia based on other visa pathways. The Tribunal put to the applicant that his visa history of prior unsuccessful visas could cause the Tribunal to form the view that the protection visa application was a ‘last-ditch’ attempt to stay in Australia. The applicant conceded that it was a last attempt to stay and that he did not learn of the protection visa possibility until this point in time.
The Tribunal maintains its concern that the applicant has had legitimate fears as to harm faced on return to India either as a result of his conversion to Christianity in 2011 or based on issues resulting from failing to proceed with the arranged marriage, given the considerable delay in applying for the protection visa. Given that the applicant was obviously exploring different pathways to stay in Australia and the relative prominence in the media of refugee issues, the Tribunal is not persuaded that the applicant would not have learnt of the option of a protection visa at a point earlier than 2016.
The Tribunal considers these six issues cumulatively. Considered together they are significantly adverse to the credibility of the applicant’s claims of facing requisite harm either as a result of his conversion to Christianity or as a result of him not entering into an arranged marriage. The Tribunal is not satisfied as to the core substantive claims to this effect.
Whilst the Tribunal accepts that the applicant converted to Christianity when he formed a relationship in 2011, the Tribunal is not satisfied that this is a basis on which the applicant would be subject to requisite harm on return to India, including on the basis that he currently has no religion and would not be religious on return to India. The Tribunal is not satisfied on the evidence that the past conversion of the applicant a number of years ago, when he is no longer a practising Christian, creates a requisite risk of harm to the applicant as a result of that past conversion.
Although, based on evidence given by both the applicant and his sister, the Tribunal does accept that there was an arrangement of some sort that the applicant would enter into marriage with a younger girl, the extent of the claimed consequences to both the applicant and his family as a result of not entering into this marriage are not accepted by the Tribunal.
The Tribunal does not accept that a financial penalty was imposed on the applicant’s family as a result of not entering into the arranged marriage. The Tribunal is not satisfied that the applicant’s paternal grandparents were driven out of the village as a result. While the Tribunal accepts that there may have been some degree of social adverse impact suffered by the applicant’s family as a result of the arranged marriage not being entered into, the Tribunal considers that this has been significantly exaggerated. The Tribunal does not accept claims that the applicant’s parents were driven out the village as a result of these issues in 2012 as claimed in the hearing. The first credibility issue is particularly important in these adverse findings, buttressed by other credibility issues.
The Tribunal certainly does not accept that a number of years now after the events in question the applicant would be at a risk of suffering serious or significant harm on return to India as a result of the events following from the arranged marriage not being entered into.
Given these findings, the Tribunal does not consider that there is a real chance of the applicant facing serious or significant harm on return to India either as a result of his religion or not entering into an arranged marriage.
The applicant has made more general claims that he faces economic difficulties on return to India and that India is not safe. The Tribunal put to the applicant in the hearing that economic difficulties would not meet relevant protection criteria. The Tribunal would not be satisfied that safety issues in India are so problematic and prevalent that the applicant, as an ordinary citizen of India, would meet protection criteria as a result of a general lack of safety in India. In response, the applicant referred to many problems being encountered in India, including riots.
The Tribunal is not satisfied that protection criteria in this matter are met either as a result of economic problems that will be faced by the applicant on return to India or because of a generalised lack of safety in India. Such harm would either not be discriminatory and would apply to the population generally and thus excluded in terms of meeting protection criteria.
The Tribunal turns to difficulties that would be faced in India for the applicant as a result of his mental health issues. The Tribunal accepts that the applicant has not insignificant mental health and addiction issues.
The Tribunal indicated to the applicant in hearing that it accepts that there is substandard treatment in India for mental health issues compared to Australia. However, the Tribunal does not consider that inferior treatment would meet protection criteria. Inferior treatment would just be a product of the resources allocated by the state and therefore, in relation to refugee criteria, would not be harm for the reason of the applicant’s mental health issues. In relation to the complementary protection criterion, there would not be the required requisite intention by any person to inflict on the applicant degrading treatment or punishment or cruel or inhuman treatment or punishment, as defined categories of significant harm.
The Tribunal is not satisfied that inferior treatment India for the applicant’s mental health issues meets protection criteria. In relation to the refugee criterion, inferior treatment would not be for the ‘essential and significant reason’ of the applicant belonging to a particular social group of people with mental illness. The ‘essential and significant reason’ for the inferior treatment would be the resources allocated by the state to medical services. Inferior treatment for mental health issues would not meet any definition of significant harm in the Act.
The Tribunal put to the applicant that protection criteria would only be met if the applicant’s mental health conditions were so debilitating that they would cause individuals in India to in a discriminatory way inflict serious harm or deliberately inflict above definitions of significant harm on the applicant. In response, the applicant maintained that this would happen.

100. The Tribunal does not discount the hurdles for the applicant in returning to India, including as a result of what the Tribunal accepts as his not insignificant mental health and addiction problems. Nevertheless, based on all the evidence including the applicant’s oral evidence in the hearing, the Tribunal is not satisfied that the applicant’s mental health issues are so debilitating and obvious that they would result in individuals in India stigmatising or deliberately harming the applicant such that he would face discriminatory serious harm for the reason of his mental health issues or that he would face any defined category of significant harm based on his mental health issues. In particular, the Tribunal does not accept that there is a real chance of the applicant facing harm due to mental health issues because of deliberate conduct by others resulting in degrading treatment or punishment, or cruel or inhuman treatment or punishment.
101. Evidence in the hearing indicates that the applicant’s mother is currently living in Ambala with extended relatives around. For the reasons indicated, the Tribunal has credibility concerns with the applicant’s claims that he has completely separated from his parents, and that he would have no contact with them or support on return to India.
102. The Tribunal accepts that the applicant has demonstrated suicidal ideation. The Tribunal accepts that the risk is greater if the applicant is returned to India, particularly given that this will separate him from his child.
103. However, protection only applies to requisite harm in terms of the legislation. The risk of suicide does not meet protection criteria. For the purpose of the refugee criterion, the harm would not be for the essential and significant reason of race, religion, nationality, or membership of a particular social group. Nor could the persecution involve ‘systematic and discriminatory conduct’ as this requires persecution by other persons for nexus reasons.[8] In relation to the complementary protection criterion, judicial authority indicates that ‘significant harm’ is framed in terms of harm suffered because of the acts of other persons. Therefore, it would not encompass self-harm.[9] Additional authority indicates that arbitrary deprivation of life for the purpose of s 36(2A)(a) requires the deliberate action of the third-party and as such, does not include suicide.[10]
104. Given the findings above, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
105. In summary, the Tribunal is not satisfied that there is a well-founded fear of persecution for a reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, he faces a real risk of significant harm.
106. 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).
107. 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).

[8] CSV15 v MIBP [2018] FCA 699.
[9] GLD18 v MHA [2020] FCAFC 2.
[10] EZC18 v MHA [2019] FCA 2143.

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 criteria in s 36(2).
DECISION

109. 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;
6(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.
…

[2022] AATA 718

8 February 2022

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