2105553 (Refugee)

2105553 (Refugee) [2023] AATA 3200 (18 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2105553
COUNTRY OF REFERENCE:                   India
MEMBER:Katherine Harvey
DATE:18 July 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 July 2023 at 3:25pm
CATCHWORDS
REFUGEE – Protection visa – India – married against customs and without family consent – victims of honour killing – members of the Patel caste – significant delay in seeking protection – harm from family in India – applicant manufactured her protection claims to allow her to stay in Australia – applicant does not have a well-founded fear of persecution –credibility concerns– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 411, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505

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 14 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [age]-year-old woman who claims to be a citizen of the Republic of India (India).
The applicant first arrived in Australia in February 2014 on a student visa. She last arrived in Australia in May 2017 and applied for the protection visa on 13 March 2019.
Her husband, a [age]-year-old man from India, was initially included in the protection visa application however he departed Australia on [date] May 2019. Clause 866.411 of Schedule 2 of the Migration Regulations 1994 requires an applicant to be in Australia. The delegate was not satisfied that the applicant’s husband met the relevant criteria set out in Australian migration law and refused the application on 10 May 2019.
The applicant’s husband was not an applicant in this review.
Claims
The applicant’s claims are detailed in the statement accompanying her protection visa application.
The applicant claimed that she was born in a village in Gujrat and is the eldest of two children. Her ethnicity is Patel and her religion is Hindu. She came to Australia to study [and] then complete her [degree].
The applicant claimed that in October 2014, she travelled to India to marry her husband. They married on 31 October 2014 without parental consent as their [Association 1] believe males and females born in the same village are recognised as brothers and sisters and hence are not permitted to marry each other. They registered their marriage the next day at the District [Court]. Her family and her husband’s family would never accept their relationship, so her visit was clandestine and neither family attended the marriage or registration.
The applicant claimed that she returned to Australia and her husband was granted a Dependent Partner visa on 23 September 2015.
The applicant claimed that they were raised in the same village in Gujrat. They have known each other since childhood and attended the same primary school and high school. When she was a college student, her husband proposed that she become his girlfriend. Even though they knew their families and caste would never accept their relationship, they decided to get married.
The applicant claimed that a few months after her husband’s arrival in Australia, a rumour prevailed in her village that they had married. They started receiving phone calls from their family and relatives about the rumour. They denied it as they knew it would endanger their lives and create social and cultural difficulties for the families back in India as members of their caste would never accept and tolerate the residents of the village to marry within the village. After some time, she stopped attending to phone calls from her family and relatives and villagers now residing in Australia. She told her parents that she was busy with her studies and wanted to concentrate on her exams. This helped reduce the frequency of the calls from her family.
The applicant claimed that in April 2017, she visited her family in India at her parents’ insistence. When she reached home, her parents’ attitude and behaviour was unkind and unwelcoming. They showed her photos of her together with her husband. She tried to explain the photos were taken at community events or at a friend’s house but they did not believe her.
The applicant claimed that during her stay, she experienced harsh treatment at the hands of her parents. Her father was physically violent to her. He pressured her to file a divorce application in court because they feared she would be harmed if members of their caste found out about her marriage. Her family also feared the Sarpanches (head of the village) would release a decree that the Patel community disown them and would force them to flee the village with no hope of return. Her husband experienced similar resistance and reaction from his family and was forced to end his marital relationship with her.
The applicant claimed that when pressure from both families increased, they submitted their written affidavits to please their parents. They agreed to go with the desire of their parents as they were experiencing significant emotional stress and social and community pressure from family and community members. A lawyer helped them draft and submit their affidavits. She presented a copy of her affidavit to her father, which did not help diminish his anger as he wanted her to file a divorce petition.
The applicant claimed that a few days after the submission of her affidavit, her parents started forcing her to have her lawyer seek an early court date to file a divorce petition to expedite the process. He tried but failed. Her parents restricted her movements and did not allow her to return to Australia as scheduled. She missed her flight but managed to arrange new tickets and secretly flew back.
The applicant claimed that after she returned, she continued to get calls from her family, pressuring her to come back to India because her lawyer had secured a date in the court to file the petition. She refused, pretending she had exams. Eventually she missed five consecutive appointments and the court refused to provide further dates. She then told her parents she would not divorce her husband as they loved each other.
The applicant claimed that this escalated tension in her relationship with her parents. They announced that they disowned her at a congregation in the village. They terminated their past, present and future relationship with her to prove their commitment and loyalty to their religious belief and caste membership. She came to know some time later that the Sarpanch threatened her family with losing their caste membership and with forced displacement if they did not publicly disown her.
The applicant claimed that at this time, she was approached by people from the village living in Australia who told her to end her relationship with her husband in respect of Patel caste tradition. She refused and they have distanced themselves from community members in Adelaide and do not attend community events.
The applicant claimed that in [Association 1] there are [number] villages of Patel community sub-castes with a wide array of cultural beliefs, norms, traditions and values in relation to marriage. The caste recognises males and females born in the same village as brothers and sisters. They are strictly forbidden to marry and it is considered a taboo and sin. Those who go against the caste rules and values lose their membership and will be rejected and forced to flee the community. Cases have been reported where boys and girls of the same village who married became the victims of honour killings.
The applicant claimed that [Association 1] is an association that coordinates and manages information related to the [number] villages. The members hold and exercise significant powers and are supported by politicians and local authorities. They punish those who are non-compliant with caste norms and traditions.
The applicant claimed that they married against the will of their parents and the social norms and customs of the Patel caste. They fear their lives will be in danger if they return to India. They have already faced a lot of challenges created by their family members and members of the caste. The Sarpanches have forced her family to disown her and she has experienced emotional and physical violence inflicted by her parents on her last visit to India.
The applicant claimed that since their marriage, her husband has not been able to visit his family as he feared he would be harmed. He kept his last visit to India a secret and stayed in another town.
On 2 February 2021, the Department of Home Affairs (the Department) wrote to the applicant requesting more information, including original and translated copies of court documents, evidence about [Association 1] beliefs, documentary evidence supporting claims about school attendance, a detailed statement about harm suffered including harm, dates, locations and any documentary evidence, and details of efforts to seek assistance from Indian authorities.
On 2 February 2021, the Department also wrote to the applicant inviting her to comment on information that she had sent money to her father in India on multiple occasions between 6 July 2016 and 29 April 2020.
On 1 March 2021, the applicant provided a statutory declaration in response to both letters from the Department.
The applicant claimed that she sent money to her father to help repay the loans he had taken to support her study and living costs in Australia. She had thought this would be an opportunity for her to repair her relationship with her parents but she was unsuccessful. She believes that they have disowned her in the past and continue to disown her today and she fears they will be seriously harmed or killed by members of the [Association 1] if she returns to India.
The applicant claimed that there is no country information about the [Association 1]’s belief that recognises male and female members of the Patel caste born in the same village as brother and sister. However, it has been a hidden belief that has ruled caste norms and rituals for generations. To protect the supremacy of the Samaj, members of the Patel caste have been brutally punished and murdered when they deviated from this hidden belief.
The applicant claimed to have witnessed such an incident when a female and male were killed when they tried to run away from the village to get married. Members of the [Association 1] declared their brutal killing a suicide.
The applicant claimed that in India it is common to distort facts and the level of corruption has provided total impunity to caste members, who corrupt politicians use to gain votes for national and state elections.
The applicant claimed that she experienced abuse and physical violence from her parents. She was mainly tortured by her father, who physically assaulted her and emotionally tortured and pressured her. Her parents locked her in a room at home and did not allow her to go out. They forced her to lodge a divorce application in [a] High Court. Her husband experienced similar issues from his parents. To ease the psychological pressure of their parents, they submitted written affidavits to the [High] Court but the pressure from her parents did not cease. They forced her to contact her lawyer and request an early court date so he could file a divorce petition. She suffered emotional abuse and physical assault from her parents from mid-April to mid-May 2017 while at their house.
The applicant claimed that she went to [a] Police Station but left without talking to the police because they enquired about her parents’ details. She feared that they would speak to her parents, who would harm her further, and complaining about her parents might prevent her from being able to travel to Australia.
The applicant claimed that after she returned to Australia in May 2017, she was mentally disturbed and did not know what to do. She still hoped to repair her relationship with her parents and time passed quickly. One day, her husband told a friend about their situation and the friend suggested talking to a lawyer or migration agent. The migration agent discussed a number of visa options and they chose to apply for a protection visa.
The applicant claimed that one night, she returned from work and her husband was crying. He was upset that his family had sustained serious injuries in a road accident. They suspected they were attacked by members of [Association 1]. Her husband blamed himself. He booked a flight and flew to India the next morning. She received a cancellation of his bridging visa due to him breaching his visa condition.
The applicant claimed that they are still married. He is in India and he has been changing addresses because he fears for his life. He told her that his friend told him someone in the village had been enquiring about his whereabouts. She has been worried for his safety because his life continues to be unsafe in India.
The applicant attached copies of school certificates previously provided showing she and her husband attended the same high school and higher secondary school.
Also, the court document submitted with her protection visa application was originally written in Gujrati and translated by an advocate – see first page of English translation.
The applicant claimed that she and her husband have known each other since childhood. They became girlfriend and boyfriend in 2006 and married in 2014 against the norms and rituals of their Patel caste. They dreamed of establishing their married lives in Australia despite significant pressure from their families and the community in Australia. Her husband’s emergency departure to India shattered their dreams. She has found Australia to be a safe home. She would not be able to return to a society that is dominated by male rules and where females do not have a voice for their protection and dignity.
On 14 April 2021, a delegate of the Minister refused the applicant’s Protection visa application.
The review application
On 29 April 2021, the applicant applied for a review of the delegate’s decision. She provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 26 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Gujarati and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicant’s representative had ceased to act for the applicant by the time the matter was heard. The applicant was advised that any change in her representative needed to be provided in writing.
On 9 September 2022, the applicant provided:
· a notarised declaration from [Mr A] dated 6 September 2022, and
· a statutory declaration from [Mr B] dated 8 September 2022.
The applicant also requested to change her representative and authorised recipient to herself, and the Tribunal sent a change of contact details form.
The relevant law
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.
CONSIDERATION
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if she is owed complementary protection, or if she is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant’s personal details are set out in her protection visa application. She is [age] years old and was born in [Village 1], Gujarat, India and lived in [Village 2] village, Gandhinagar, Ahmedabad, Gujarat. The applicant is married and her husband is now in India. The applicant has tertiary qualifications [in] India and Australia and at the time of the hearing was working as a [occupation].
In her application, the applicant provided details about her husband, father and mother and brother.
Country of reference
The applicant claims that she was born in [Village 1], Gujarat, India. She provided a copy of the biodata page of her Indian passport with her application.

The Tribunal is satisfied that the applicant is a citizen of India and that India is the receiving country for the purpose of s 36(2)(aa) of the Act.
Analysis, reasons and findings
As discussed at the hearing, section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claims.
In considering the applicant’s claims, the Tribunal is challenged by the lack of sufficient evidence to establish the claims and by the plausibility of the applicant’s claims overall given her subsequent behaviour and that of her husband. The Tribunal has set out below the most significant difficulties that it has with the claims made by the applicant, which led the Tribunal to find that those claims not to be credible.
Married against customs and without family consent
The applicant provided a copy of her marriage certificate with her protection visa application. The Tribunal accepts that the applicant married [Mr C] on 31 October 2014 and the marriage was registered on 1 November 2014.
The applicant claimed to fear harm because she had married her husband without the consent of her family and against the caste and custom of her village. She claimed that males and females born in the same village are recognised as brothers and sisters and are not permitted to marry. The applicant was asked at the hearing if she had any information to support her claims about her marriage being against [Association 1] beliefs. The applicant said that she has submitted whatever she has and that she does not have any further evidence. She said that it is not like a constitution with rules and regulations; the thing has been going on for generations and there are no rule books or regulations. The Tribunal asked if there was anything written that talked about the beliefs, such as newspaper articles. She said that nothing is in writing, that there is nothing on the news and that nobody comes to the village to cover this kind of news.
Country information does not support the applicant’s claim that there is nothing in writing about exogamy (the custom of marrying outside a community, clan or tribe) and that nobody comes to the village to cover such news. A search on Google Scholar on ‘village exogamy in India’ returned 18,800 results and a search on Google returned 174,000 results. People of India: Gujarat[1] reports that the People of India project was launched on 2 October 1985 to develop ‘a brief descriptive anthropological profile of all the communities of India’, the impact of change and development and the links that bring them together[2] and that ‘all communities of present day Gujarat were taken up for study.’[3] The authors report that:
Another feature of Gujarat is the existence of the notion of territorial endogamy (gol or circle). The communities within a territory prefer to marry within their communities and their notional territory. Members of some of the communities who have moved out, prefer to return to marry in their territory.[4]
[1] KS Singh (General Editor) People of India: Gujarat Part One, Volume XXII, Anthropological Survey of India (2002).
[2] Ibid XI.
[3] Ibid 27–30.
[4] Ibid XXVI.
The Tribunal gives greater weight to the country information.
At the hearing, the applicant said that when she returned to India in 2017 both her family and her husband’s family were pressuring them for a divorce. She claimed that there was nothing like a misunderstanding or bad relationship between her and her husband and she never wanted a divorce. In her application, the applicant provided a four-page translated copy of an application from her husband and the applicant to the Family Court –[for] divorce with consent. The application is dated 12 April 2017 and includes the following:
·   ‘We do not have any kind of harmony between us, because we cannot live together well and our community leaders and our relatives who have failed to join us husband-wife’
·   ‘we are happy to end the relationship between us as husband-wife in present (sic) of our relatives and elder’
·   ‘We both parties have applied for divorce with consent without any pressure of either party’, and
·   ‘the relatives of both applicants have made many efforts to keep the marriage life alive but found no success in it’.
At the hearing, when asked about the contradiction between her claims that she married without the consent of her family and against the caste and custom of her village and the claims in the application for divorce, the applicant said that because of time constraints the lawyer in India just used existing documents. When asked if she had filed a false document in the Indian court, the applicant said that it was not wrong, but it was not her intention, and the time was very short. She also said that she did not read the document in detail when signing it as she only had half a day, and that she only found out what the document said when she got back. The applicant also said that she asked her husband to meet the lawyer and get the application corrected but the lawyer was not responding. The Tribunal did not find the applicant’s explanations plausible or convincing. The translated document is four pages long with double-spaced text. At the time the applicant signed the application, she held [higher education degrees]. Given her level of education, her tertiary qualifications and the seriousness of the application, it is reasonable to expect that the applicant would have read such an important document before signing it. The Tribunal gives greater weight to the court document.
At the hearing, the applicant claimed that the court listed the hearing four or five times and then dropped the application because they did not attend as she was back in Australia. She claimed that they then asked the lawyer to withdraw the application. She provided a translated copy (but not the original) of a Withdraw Pursis application to the Family Court – [dated] 13 April 2018 naming the applicant and her husband as the applicants and stating that:
We have applied for divorce decree in accordance with section 13 in the honourable court, on the basis of consent but we have settled and compromise and we are currently living together and now there are no conflicts between us. So we withdrawing (sic) the existing application. Which we declare by this pursis.
Based on the information before it, including the lack of any independent information about [Association 1] beliefs, the country information and the translated court documents submitted by the applicant, the Tribunal finds that the applicant and [her husband] did not marry against the wishes of their families or community and that the applicant remains married to [her husband].
Delay in seeking protection
The applicant last arrived in Australia in May 2017, and she applied for the protection visa one year and nine months later on 13 March 2019.
The Tribunal is aware that there are many plausible and credible reasons why an applicant may not seek protection as soon as they arrive in Australia. However, it is well established that a decision maker may consider the question of delay between the applicant arriving in Australia and seeking protection.
At the hearing, when asked about the delay, the applicant said that she was not aware that this type of visa was available. She said that previously she had a lot of problems, like her study and her job, and that she had to search for the information. She also said that one day her husband spoke to his colleague at work about their problem and asked his colleague if he knew of any lawyer or any information. She claims that the colleague informed him that he knows of a lawyer and you go there and explain your problem to him and if it is a valid claim then he will help. The Tribunal did not find the applicant’s explanation for her delay in seeking protection to be compelling.
The significant delay in seeking protection causes the Tribunal to doubt the applicant’s claim to fear harm on her return to India. The Tribunal does not accept that a person genuinely in fear of being harmed on return in the manner claimed by the applicant, and given the applicant claimed to have experienced harm in India in May 2017, would not seek a more permanent option to remain in Australia earlier than the applicant did.
Husband returning to India
In her statutory declaration dated 1 March 2021, the applicant claimed that she returned home from work one night to find her husband crying. He was extremely upset because his family had sustained serious injuries in a road accident. She claimed they thought his family had been attacked by members of the [Association 1]. She claimed her husband blamed himself for what happened and she could not prevent him travelling to India to see them. She claimed that she knew their situation was critical and he booked his flight overnight and returned to India the next morning.
At the hearing, when asked about the accident, the applicant said that her husband’s parents orchestrated the accident. She said that when the accident happened, her husband started receiving threats and became depressed and went back to India. When asked why she thought that the accident was orchestrated, she said because they did not want us to live together. When asked why her husband had left, she said that he was receiving threats in Australia, he was very confused and that he travelled back to India thinking that he could assess the situation and come back to Australia, but he could not come back.
At the hearing, the applicant said that she did not know much about the actual nature of the accident. She understood that his parents were travelling in an auto (autorickshaw) that was hit by a truck and her husband received a call from his friend or somebody notifying him of the accident. She said he also received a threatening call, where an unknown person said, ‘if things aren’t changed it may be more severe next time’ and ‘if you don’t separate, then we will kill you’. She said that the second call was made by an unknown person. The applicant said that was the first time her husband had received a threatening call. She said that he got the call and left the next day on 9 May 2019. She said that it was so sudden, and he was having anxiety and was depressed.
The Tribunal asked the applicant to confirm that her husband received a call on 8 May about an accident and then received a call threatening his life, and he got on a plane the next day. She agreed that was correct but clarified that the threat did not specify that they would kill him but was a more general threat to her husband and his family. She said they told him that if he does not act accordingly, then there is a risk to his family as well.
The Tribunal asked the applicant to confirm that she thought the parents orchestrated the accident. She said, no his parents did not orchestrate the accident. She said that the caste is also pressuring the family and she thinks the caste people would have orchestrated the accident.
At the hearing, the applicant was invited to provide evidence about how the accident happened, what happened and who was involved. She said that she did not have any evidence here, but that she has asked her husband for evidence. She said that where the accident happened is close to the village and her husband believes it is risky to visit but he will definitely get some information. She said that there is no report of the accident.
The applicant did not submit any evidence from her husband after the hearing or by the time this decision was finalised. Nor did she provide any information to support her claim that her husband received a threatening call on 8 May, such as a screenshot of the calls he received that day. The Tribunal believes that it is reasonable to expect that someone with an active protection claim would collect evidence, such as a screenshot, to support their claim that they were being threatened.
After the hearing, the applicant submitted a notarised declaration from [Mr A] dated 6 September 2022, which is transcribed below:
I, [Mr A] hereby declare that all the following information and details are in good faith and correct with the best of my knowledge and understanding.
Since 2010 I knew [Mr C] and we had studied together in the same college and we became a good friend while our hometowns are nearby and were used to meet each other frequently. There were two more mutual friend were there who were my friend too.
[The applicant] and [Mr C] were used to live in the same village. On 8^th May 2019 I received a call from [the applicant] that parents of [Mr C] had an accident on [a] highway. They were going to city in Auto-rickshaw and hit by truck which was pathetic. I did not know what I am supposed to do and how I should inform to [Mr C]. I reached to theplace of the accident and came to know from eye witnesses that his parents were moved to the hospital nearby as their situation was critical as came to know from people who responded and helped them immediately. One eye witness who saw the accident conveyed message to me that it was horrified accident however there was different views on it how it was happened suddenly truck hit and got run away. Due to accident, his parents were wounded all over the place specifically the culprit left them with couple of fractures and wounds. I understood that because of relationship of [Mr C] and [the applicant] someone might have tried to do it purposefully. In our region, people are giving more importance to caste and customs, if things not happen according to norms and traditions as per the caste group, they will take help of politicians and police too. I called to [Mr C] after hearing and seeing the situation with sad news, he was shocked, depressed and anxiety.
Mr [A].
The Tribunal has carefully considered [Mr A]’s declaration and his recollection of events. The Tribunal notes that [Mr A]’s declaration was made more than five years after the event, that he recalls eyewitnesses had different views of how the accident happened, and that his understanding about the possible cause of the accident is speculative in nature and was not supported by any evidence, including from the accident scene. The Tribunal gives limited weight to [Mr A]’s declaration.
The Tribunal accepts that the applicant’s husband voluntarily returned to India after his parents were injured in a vehicle accident. The Tribunal notes that there is no evidence before it that the accident was orchestrated or that the applicant’s parents-in-law were targeted. Based on the information before it, the Tribunal does not accept that the accident had any connection to the applicant’s marriage nor that it was orchestrated by the ‘caste people’ nor that the applicant’s husband received a threatening phone call.
Does her husband fear harm in India?
At the hearing, the applicant said that she and her husband talk regularly, at least once every two days. The Tribunal asked where the applicant’s husband was now living. She said that he is currently in India and every few months he moves around because of the threat. However, when asked if he was still living in Gujarat, the applicant said maybe yes, maybe no. She said that he does not have an exact address and has been living near the border of Maharashtra and Gujarat states.
She said a few months before the hearing, her husband had experienced harm when he was going to the vegetable market in the evening. He was on foot and someone hit him from behind and he ran away from the attack. She said she did not know if he had told anyone else, he just told her. When asked why she thought the incident had to do with them being married, the applicant said because usually the caste people target and spy and attack. Based on the information before it, the Tribunal does not accept that this is an example of premeditated harm or a planned attack on the applicant’s husband.
When asked why her husband was still living in and around Gujarat, the applicant responded that in between he went to [Country 1] on a visitor visa. When asked why he had not sought protection in [Country 1] if he feared harm, the applicant said that he does not know much English, he may have been stressed and he may not have had any options there.
Later in the hearing, the Tribunal explained that it was concerned that the applicant’s husband did not apply for protection in [Country 1]. She responded that he might not know that you can do something like that. However, she confirmed that she talked to him about his trip to [Country 1] but not frequently, like every couple of days or every two to three days. She said that he may not know that he can apply for a protection visa in [Country 1], and he may not know what information to look for.
The Tribunal confirmed that her husband was aware that she had applied for a protection visa in Australia for the applicant and her husband. When asked why she had applied, she said she believed that there was a threat to her and that people would not let her live if she goes back. When asked about her husband, she said even he has a threat. The Tribunal suggested that it was not credible that someone who had already been a party to a protection visa application in Australia would not know that he could apply for one in [Country 1]. She suggested that maybe the thought might not have come in his mind and that if he would have known he would have applied there and stayed in [Country 1].
The Tribunal notes that the applicant did not call her husband as a witness nor did she provide a statement or supporting evidence from him. Based on the evidence before it, the Tribunal finds that the applicant’s husband does not fear harm in India and he did not apply for protection in [Country 1] because he does not fear harm in India.
Harm from family in India
At the hearing, the applicant claimed that when she last visited India in 2017, her father physically injured her. She said that her father had hit her with his hand and a stick and there were ‘a few bruises and things’, but she did not go to the doctor. The applicant also claimed that she was under restrictions on who she met and who she talked to, and that she was locked up at home and not allowed to leave the house, which caused her to miss her return flight to Australia and required her to book a new flight. She said that since then, her family has been putting a lot of pressure on her and also threatened her life. She said that she had not been in contact with her family for the last two years and that since she left them in 2017, she has rarely contacted them, maybe one or two times.
The applicant did not provide any corroborative evidence, such as the receipts for the flight she claims she missed and the one she caught, to support her claim that her family prevented her leaving the house and she had to purchase a new flight to Australia.
After the hearing, the applicant submitted a statutory declaration from [Mr B], dated 8 September 2022, which is transcribed below:
I, [Mr B] do solemly and sincerely declare that I and [the applicant] are good friends, and I knew many things about [her] life.
· [the applicant] is going through a lot of huddles in her personal life as she is staying alone overhear and most of the times, I am saw her tensed, depressed and very much worried about herself and her husband life.
· I know that she is not getting any minimal support from her family to live herself on own and I still remember the situations where she is House arrested and beaten / harassed by her own family members and she escaped from the house and with the help of her friend came to Australia.
· I can surely say that [the applicant] is having the life risk if she returns to India because she took decision to marry a person (I mean her husband – [Mr C]) and live her life with him which is against her family / community and caste tradition.
· I know [the applicant] will be on Danger Line in India because frequently I am hearing in the News channel that people who took the decisions or marry a person against caste tradition are brutally beaten and killed by the community heads. (Leader of the community) or by family members. Here is one example: honour killing[5]
· I knew that [the applicant]’s family disowned her from the caste group and left her behind. So, she is in a situation like where to go and survive safely.
· I knew [the applicant] is very diligent woman with huge knowledge about Australia ethics and culture which she likes most and a loyal citizen to Australia contributing towards economy. So, she deserves better life staying here in Australia compared to her home country – India.
· I know that she is staying in Australia from Last 7+ years and never stayed idle and struggled for money. She is continuously working and earning the money for her expenses and strictly follow the Australia rules and regulations.

[Mr B] did not describe any similarities between the applicant’s claims and the murder of Mr Perumalla, other than the fact that honour killings happen in India. The Tribunal notes that honour killings of women, purportedly to uphold the family honour, occur in India and that DFAT reports that ‘[a]lthough official statistics on “honour killings” are not readily available, DFAT understands the practice is not widespread’[6]
[6] Department of Foreign Affairs and Trade DFAT Country Information Report: India 10 December 2020 41.
In his statutory declaration, [Mr B] gave no indication of when he came to know about the applicant’s situation, nor how the applicant’s marriage was against family / community and caste tradition. From his statement, it appears that [Mr B]’s only source of knowledge about the situation is from the applicant. For these reasons, the Tribunal gives the statutory declaration limited weight in supporting the applicant’s claims.
The Tribunal notes that the applicant sent money to her father on multiple occasions between July 2016 and April 2020, including after lodging her application for a protection visa in March 2019. As recorded in the delegate’s decision, a copy of which the applicant provided to the Tribunal, the delegate wrote to the applicant about these transfers saying that they appeared to be inconsistent with her claims for protection. At the hearing, the applicant said that she was still not talking to her parents, but she was good and sending money to pay off her education loan. She said that the loan is now finished and she has not sent any money for the last two or three years. The Tribunal accepts that the applicant’s family borrowed money to fund her education in Australia and that the applicant would seek to help repay the loan and that the loan is now repaid.
Based on the information before it, the Tribunal does not accept that the applicant experienced physical and emotional harm from her family when she last visited India in 2017, nor that her family prevented her leaving the house, nor that her family has threatened to harm or kill her. The Tribunal finds that the applicant manufactured her protection claims to allow her to stay in Australia. The Tribunal finds that there is no real chance that the applicant will experience serious harm and no real risk that she will suffer significant harm from her family.
Difficulty in returning to India
In her protection application, the applicant claimed that she would not be able to return to a society dominated by male rules and where females do not have a voice for their protection and dignity.
At the hearing, the applicant said that when she came here she liked this country. She said that there is freedom in Australia and you can do whatever you want, there are no restrictions and no family involvement. She said that she likes it in Australia and she feels safe here.
The Tribunal discussed that the applicant can speak English, Hindi and Gujarati, that she is a highly trained [professional] and that she would find work in India. She claimed that she would find it very difficult to settle back in India because she has been in Australia for a long time and studied here. She claimed that in India spies would find out where they were staying and then the caste people will come and kill them. At the hearing, the applicant did not provide any information about any threat to her safety other than that related to her marriage, which the Tribunal has found to be not credible.
The Tribunal considered the applicant’s claim as a woman returning to India and the country information about women.
DFAT assesses women across India generally face a low risk of official discrimination, in that there are constitutional and legal protections for women. However, women have reported weak property rights, discriminatory regulations and infrastructure constraints to equal business participation, and barriers to reporting crimes.
Although, in general, urban women from higher class and caste backgrounds tend to have better access to legal protections, these women may still be pressured by family to hide family violence for fear of maligning their family’s honour and reputation. Other factors that may affect the situation for a woman experiencing violence include the state in which she lives, her class, caste, ethnicity, religion, education and age. Access to services is typically better in urban areas than in rural regions. In addition to the geographic advantages of urban-based communities, education and the standard of literacy has a significant impact on access to services.
DFAT assesses women across society, but particularly in rural areas and from lower castes, face a moderate risk of societal discrimination and violence. This can include sexual, domestic and dowry-related violence. The COVID-19 pandemic has highlighted the risk of domestic and family violence towards women in India. Longstanding traditional values and gender roles can restrict the participation of women in the workforce and community, and impact their inheritance rights and access to health and mental health care.
Considering the applicant’s claim that women do not have a voice for their protection and dignity in India, the Tribunal gives greater weight to the country information and finds that the applicant would be able to avail herself of the constitutional and legal protections for women. The Tribunal notes that the country information reports a moderate risk of societal discrimination and violence, which means that DFAT is aware of sufficient incidents to suggest a pattern of behaviour. However, the Tribunal has considered the applicant’s personal circumstances as a well-educated, professional, married woman who the Tribunal has already found has no real chance and no real risk of suffering serious or significant harm as a result of her marriage. The Tribunal finds that there is no real chance that she will experience serious harm and no real risk that she will suffer significant harm as a woman in India.
The Tribunal considered that the applicant would be returning to India after nine years. The country information reports that ‘DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities.‘ [7] The Tribunal finds that there is no real chance and no real risk of the applicant experiencing serious harm or suffering significant harm as a returnee.
[7] Ibid 65.
Having found that there is no real chance that the applicant will experience serious harm and no real risk that she will suffer significant harm in India as a result of her marriage, the Tribunal finds that the applicant can safely return to her family home in [Village 2] village, Gandhinagar, Ahmedabad, Gujarat, India. Alternatively, the applicant could live with her husband. The Tribunal understands that there will be a period of adjustment for the applicant in returning to India but, as the applicant spent all but the last nine years living in India, she has a husband and family there, and she is highly educated and employable, the Tribunal is not satisfied that this adjustment would constitute any of the defined forms of significant harm.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

100. Having considered the applicant’s claims individually and cumulatively, based on all of the evidence before it, the Tribunal finds that there is no real chance of the applicant being harmed by her family, the people in the village, members of [Association 1] or anyone else for reasons of her marriage, because she is a woman or for any other reason if she returned to India now or in the reasonably foreseeable future.
101. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
102. On the basis of the same reasoning, the Tribunal finds that there is no real risk that the applicant will suffer significant harm from any of those identified if she is removed from Australia to India now or in the reasonably foreseeable future.
Conclusion
103. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criteria in s 36(2)(a), the Tribunal has considered the alternative criteria in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION

106. The Tribunal affirms the decision not to grant the applicant a protection visa.
Katherine Harvey
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[5] The Miryalaguda honour killing describes the murder of Pranay Perumalla, a man from the Dalit community who married a woman outside his caste.

[2023] AATA 3200

18 July 2023

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