2109337 (Refugee)

2109337 (Refugee) [2021] AATA 5599 (28 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2109337

COUNTRY OF REFERENCE: India
MEMBER:Roslyn Smidt
DATE:28 October 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 October 2021 at 9:27 AM
CATCHWORDS
REFUGEE – protection visa – India – religion – Hindu – particular social group – mixed religious marriage – political opinion – Bharatiya Janata Party (BJP) member – involvement in Rashtriya Swayamsevak Sangh (RSS) – fear of Sikh extremists – physical assault – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 7 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant who is a citizen of India, applied for the visa on 30 April 2021.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
background
The applicant is [an age]-year-old married man of Hindu faith from Jalandhar in Punjab in India. He lived and worked in [Country 1] from 2012 until December 2018. He married his wife [in] August 2018 during a brief stay in India. The applicant and his wife have [number of children] born in Australia.
The applicant was granted a visitor visa on 28 May 2019. He arrived in Australia [in] June 2019 and returned to India [in] September 2019. He returned to Australia [in] September 2019.
The applicant’s wife lodged a protection visa application on 19 November 2019. He was included as a member of her family unit but did not make any claims for protection.
The applicant’s wife was not included in the application under consideration. He stated that he did not know her address as an AVO had been issued and he was not allowed to contact her.
The applicant was arrested in June 2020 and charged with common assault arising from an incident of domestic violence. He was released on bail at some time before 10 July 2020 when the Department was advised that he was no longer in custody. He was arrested again in early 2021 following a breach of an AVO and a further incident of domestic violence. [In] March 2021 he was sentenced to seven months’ imprisonment. He was released from custody [in] August 2021 and has been in immigration detention since that time. At the hearing it was established that he has been the subject of an AVO and has not lived with his wife since June 2020.
On 21 September 2021 a delegate of the Minister found that the applicant was no longer a member of his wife’s family unit and as he had not made any independent claims in the application lodged in November refused his protection visa in relation to this application. The applicant applied for review of that decision on 22 September 2021. I am also the presiding Member in relation to that application.
Summary of claims
The applicant claims that he would be at risk of serious harm from members of the Sikh community if he returns to India because he is of Hindu faith and has a past association with Hindu groups and because he married a Sikh woman. He also claims that he is at risk of harm because his wife was targeted by a number of people as a result of her work for [a bank] in Jalandhar. In his initial application he also referred to problems associated with the coronavirus pandemic.
consideration of claims and evidence
Hindu religion and involvement with Hindu groups
The applicant’s claims
The majority of the population of Punjab is Sikh, but Hindus constitute some 80 per cent of the population of India.
In his application lodged on 30 April 2021 the applicant said that he left India because he feared for his life due to a hate campaign against Hindus conducted by Sikhs. Hindus were attacked and killed during rioting in 1984 and many were forced to leave Punjab and violence against Hindus in Punjab continues to be a problem.
The applicant also claimed that he had joined the RSS [Rashtriya Swayamsevak Sangh] when he was very young and became an active worker for the group. He also joined the BJP [Bharatiya Janata Party]. In 2009 there was an incident which involved the mass murder of Hindus and he joined a protest against this event. He also participated in an election which resulted in the SAD [Shiromani Akali Dal] and the BJP forming government. Local leaders of Khalistani knew about his activities and he was targeted many times by Sikhs who disliked him. He left Punjab in 2012 because of the discriminatory treatment Hindus received from Sikhs and fears he would be killed if he returned. He claimed that the failure of the SAD-BJP alliance had drastically changed the political and security in Punjab, and that the farmers’ protests in 2020–21 were allowing extremists to re-emerge.
In support of these claims the applicant provided:
·An article in the Guardian dated 26 May 2009 which states that supporters of a Sikh leader who was murdered in Austria, apparently by fundamentalist Sikhs from a higher caste, took to the streets in Jalandhar and some nearby towns, burned vehicles and a bank and blocked railway lines and roads.
·Articles dated 7 June 2019 in the Tribune and Times of India which state that a confrontation between Sikh and Hindu activists on the anniversary of Operation Blue Star was diffused without violence when the police intervened.
·An article dated 4 December 2020 in a publication called Opindia which states that what began as protests against farm laws has seen the Khalistan bogey raise its head as a result of statements by some Sikhs and attempts to hijack the protest by Sikh separatists.
·An article dated 28 December 2020 which reports that Sikhs have been at the forefront of protests against the introduction of laws relating to guaranteed minimum prices without consultation. It notes that the BJP has sought to portray the Sikh campaigners as Khalistani terrorists, but rejects this characterisation.
·An article dated 2 February 2021 which reports on farmers’ protests in Uttar Pradesh and Haryana and notes that the BJP was losing support from members of the Jat caste because of laws they had introduced and that farmers in Punjab and Haryana had overcome their rivalry to form a united front on the issue. [It appears that some Sikhs belong to this caste, but the article makes no mention of Sikh separatism].
The applicant attended an interview with the delegate on 20 May 2021. According to the delegate’s decision[1] he said that his family had a long history with the RSS and some of his relatives were killed. However, when asked for details of his own involvement he spoke in general terms about attending temples and learning about Hinduism but said that he had not joined the RSS and had never been an RSS worker.
[1] A copy of this decision was provided to the Tribunal.
The delegate accepted that the applicant had been a low level supporter of RSS and the BJP during his adolescence and that he took part in activities relating to the election of the SAD-BJP alliance, but after reviewing information on the political situation in India did not accept that he would be at risk of serious harm because of this if he returned to India.
The applicant attended a hearing on 7 October 2021. I noted that the applicant had previously claimed that he had been involved with Hindu political or religious groups and that he was fearful of Sikh extremists because of this. He confirmed that this was correct. I advised him that it appeared that while he may have supported these groups, he had never joined them. He said that he had faced problems because he was Hindu. I advised him that I was trying to understand the nature of his involvement with Hindu groups. His response was confused. He said that his parents had also joined these groups, but the problems began when he joined, but he also said that he began to face problems after he got married. I observed that it appeared that he had never joined a group, that he had not experienced any problems before leaving India in 2012 and his problems all relate to his marriage. He failed to clarify the nature of his association with Hindu groups but said that a lot of his problems related to his marriage. I observed that the claims which the applicant had made in his initial application regarding his membership of Hindu groups prior to 2012 and the problems this caused appeared to be untrue. He said that he had been very young at the time and did not have an identity card for the groups. I observed that this would not have prevented him from providing accurate information on his involvement with groups. He said that he had been a member of the RSS and he had been involved in propagating the Hindu religion.
The applicant confirmed he had lived and worked outside India from 2012 until 2018. He returned to India three times for about a month during this period, once in 2015, once in 2017 and once in 2018. He said that he stayed with his family in Jalandhar during these visits. When asked if he had experienced any problems during these visits, he said that he had had some issues and added that he was sometimes with his parents and sometimes outside the area. I asked him to tell me about the worst problems he faced while visiting India. He said that there were problems because he was Hindu and there were not many Hindus in the area. I asked him to tell me what had actually happened to him. He said that there were no incidents, but people did not like Hindu families.
I asked the applicant if any member of his family had experienced problems prior to his return to India in December 2018. He said that the problems began when he got married. I asked him to confirm that he and his family had not experienced any problems prior to that time. He said there had always been problems because they were Hindus, but the main issues began when he got married.
I advised the applicant that it was my understanding that Jalandhar had a population of slightly under 900,000 and about 75 per cent of the population of the inhabitants were Hindus while only about 22 per cent are Sikh. I also advised him that while I was aware that Sikh extremist organisations had been involved in acts of violence in some parts of India in the past, it was my understanding that this was no longer the case. I observed that in these circumstances it appeared unlikely that he would be at risk of harm from Sikh extremists or anyone else in Jalandhar because of his religion. The applicant said that he lived in a village and he did not know much about the composition of the population in Jalandhar but maintained that he would be at risk of harm because of his religion.
I advised the applicant that I had significant doubts about his claims, but even if I accept them at face value it appeared that he could avoid future problems by relocating elsewhere in India, for example New Delhi or Mumbai. I noted that the vast majority of the population are Hindu. The applicant said that Hindus were being persecuted throughout the country by Sikh extremists who supported Khalistan. I advised him that this was at odds with my understanding of the situation. He maintained that his claims were true.
The applicant attended a second hearing on 22 October 2021. I noted that he had been included as a member of his wife’s family until the application was lodged in November 2019, but he had failed to mention any problems relating to this which appeared to suggest that he had not experienced any problems because he is a Hindu. He maintained that his claims were true and said that he had not included this information because he and his wife had both lost their jobs and had a lot of problems.
Country information
The following overview is intended to provide a context for the applicant’s claims. Unless otherwise stated it is based on information contained in the DFAT Country Information Report – India 10 December 2020 and DFAT Thematic Report India – State of Punjab 7 December 2016.
Some 80 per cent of the population of India is Hindu. Most Hindus do not face official or societal violence or discrimination on the basis of their religion.
Sikhs are in the majority in Punjab. Punjab experienced high levels of violence and unrest during the 1980s and early 1990s, when armed secessionist groups clashed regularly with authorities. A confrontation at the Sikh Golden Temple in 1984 as part of what was called the Blue Star Operation and the assassination of Indira Ghandi by her Sikh bodyguards led to a violent reaction by security forces and mob violence against Sikhs in many cities across India. A small number of Sikhs continue to advocate for a sovereign Sikh state of Khalistan. However, since the early- to mid-1990s, successive governments have taken a stronger stance on security issues, and pro-Khalistan terrorist groups within the state have been largely eliminated. Overall, the security situation in Punjab is calm and the general population faces a very low risk of violence or property or other damage.
The RSS is a Hindu nationalist organisation affiliated with the BJP, which is also strongly associated with Hindu nationalism. SAD is a Sikh-centric political party. The RSS and SAD formed a coalition of convenience and gained power in Punjab in February 2007. They also gained a majority of seats in 2012, but lost power in 2017.
In September 2020 the parliament passed three farm acts which introduced a number of changes including the way in which farmers could sell their produce and price guarantees. Many farmers believe that these market-friendly measures will put them out of business and have been involved in ongoing protests and while most have been peaceful some have been violent. Sikh farmers from Punjab appear to have played a leading role in the protests, but many Hindu farmers have also been involved. Some reports suggest that some political figures, including Sikhs, have attempted to use the protests to promote other causes. None of the reports which were located suggest that there has been an increase in Sikh violence against Hindus in Punjab or elsewhere. According to some recent reports the government does not see the protests as a significant political threat, partly because many protesters are Sikhs, while the BJP draws its political power from rallying the country’s Hindu majority.[2]
Findings of fact
[2] See articles provided by the applicant; Violence Strikes India’s Farmers Want You to and Farmers in India have been protesting for 6 months, have they made any progress? (theconversation.com)
After considering all of the evidence, I found the applicant’s evidence regarding his involvement with Hindu groups in India and his fear of harm from Sikh separatists or members of the Sikh community because of his Hindu religion confused, vague and unconvincing.
In the first place, in his initial application he claimed that he joined the RSS and BJP before he left India in 2012 and described himself as an active worker. He also claimed that he was involved in elections involving SAD and participated in a protest following violence against Hindus in 2009. He claimed that he was known to local separatists and targeted many times because of this. However, when asked about his involvement with these groups and activities at the hearing his evidence was extremely vague and he appeared to suggest that he had never joined or been active in either group. When asked about the problems he faced because of his involvement with these groups or because of his Hindu religion he failed to provide a single example. If the applicant had been involved with any Hindu political groups or faced problems merely because of his Hindu religion I believe he would have been able to provide a reasonably consistent and coherent account of these matters. I find his failure to do so a strong indication that these claims are untrue.
Secondly, even if I accept that the applicant had some involvement with the RSS or BJP and was involved in election campaigns for the election which brought the SAD to power in 2007 [when he was about [age] years old], as noted above, violent pro-Khalistan groups were largely eliminated in Punjab by the mid-1990s and I am unaware of any evidence which suggests that Hindus have been be at risk of harm from Sikh separatists or other Sikhs since that time merely because of their religion, because they were involved with Hindu groups such as RSS or BJP or because they were involved in election campaigns which brought a Hindu/Sikh alliance to power in 2007 and 2012. I find this to be a further strong indication that the applicant has not provided an honest or accurate account of his involvement with Hindu groups in Punjab or his problems with Sikhs.

Third and finally, the applicant was included as a member of his wife’s family unit in the application lodged in November 2019. Neither he nor his wife mentioned any of these claims in that application. If the applicant had experienced significant and continuing problems with Sikhs prior to leaving India because of his Hindu religion or involvement in Hindu groups I believe these problems would have been mentioned in that application. I find this to be another very strong indication that the applicant was not involved with pro-Hindu political groups and did not experience problems with separatists or other Sikhs prior to his departure from India.
After considering all of the evidence, I do not accept that the applicant belonged to any Hindu political groups prior to 2012 or that he was threatened or harmed by Sikh separatists or other Sikhs at any time because of his involvement in political groups or activities or merely because he is a Hindu. I believe he manufactured these claims to support his application for protection.
Consideration of claims relating to the applicant’s Hindu religion
As I do not accept that the applicant was involved with any Hindu political groups or parties prior to 2012 it follows that I do not accept that he faces a real chance of experiencing serious or significant harm if he returns to India for this reason. Furthermore, there is nothing in the evidence before me which suggests that he would become actively involved in political or other Hindu related groups or activities in future or that he would be perceived to be involved with such groups or activities. I am therefore not satisfied that there is a real chance that he would experience serious or significant harm if he returned to Jalandhar in India within the reasonably foreseeable future because of his real or perceived involvement in Hindu groups.
I accept that the applicant is a follower of the Hindu faith from Jalandhar in Punjab. I accept that while Hindus appear to be in the majority in Jalandhar, Sikhs are in the majority in Punjab. However, it is clear from the independent evidence that Sikh separatists do not have a significant presence in the province currently and while the evidence indicates that there are some tensions between Sikhs and Hindus in the province it does not suggest that this has resulted in more than occasional minor acts of violence in recent years or that Hindus in Jalandhar are generally at risk of harm from Sikh extremists or other members of the Sikh community merely because they are Hindus. In these circumstances I am not satisfied that there is a real chance that the applicant would experience serious or significant harm if he returned to Jalandhar in India within the reasonably foreseeable future because of his Hindu faith.
In reaching this conclusion I have noted the applicant’s submissions regarding the protests by farmers, including many Sikh farmers, in India over the past year or so. It appears that some Sikhs may have sought to raise separatist issues during these protests. It also appears that at least some of these claims are false or exaggerated claims made by the ruling party in order to deflect attention from the real causes of the problem. None of the evidence suggests that Sikh separatists or extremists have re-emerged as a significant force in Punjab or elsewhere in India as a result of these protests. And while some of the protests have involved acts of violence, according to recent reports most have been peaceful. More significantly, none of the evidence before me suggests that Hindus have been threatened or attacked by anyone during these farmers’ protests or acts of violence in Punjab or elsewhere because of their religion. I am not satisfied that the applicant faces a real chance of suffering serious or significant harm if he returns to Jalandhar in India within the reasonably foreseeable future because of the re-emergence of Sikh separatist or extremist groups or for any reason linked to the ongoing farmers’ protests.
Marriage to a Sikh
In his initial application the applicant said that his wife’s family were orthodox Sikhs and did not want her to marry a Hindu. His wife wore a sari at their wedding, which was not permitted for Sikh women. Her parents did not attend their wedding [in] August 2018. She moved to live with his family after the wedding. The applicant returned to [Country 1] [in] August 2018. His wife called him in [Country 1] and asked him to return, so he came back to India in late December 2018. His wife told him that her family had boycotted her and refused to see her. On 1 January 2019 they went to a temple to get a blessing and celebrate New Year’s Day. His wife was wearing a sari. When they left, they were attacked by a group of Khalistani with sticks and swords who accused him of converting his wife to Hinduism.
The applicant went to the police station [days later]. They noted the information he provided, but he could not provide the names of the attackers or witnesses and the police did not like to register complaints against Khalistanis, so they did nothing.
Following this incident many of the applicant’s friends and supporters came to his home and suggested he leave as he had become a target for Khalistani supporters. They told him that there were Khalistani agents in every street who informed on Hindus and that many hundreds of people had been killed. After this he and his wife left Jalandhar and went to Shimla in Himanchal Predesh [about 217 kilometres from Jalandhar] for a week, then moved to Amritsar [about 82 kilometres from Jalandhar] where they arranged to leave for Australia as soon as possible.
The applicant said that relocation would not be a reasonable option for him because Khalistani supporters were very powerful in India and newcomers are generally not welcome in different parts of the country.
According to the delegate’s decision the applicant said that he met his wife at a function about three years before they married and they communicated mainly by telephone. They did not tell many people about their relationship. He told his family about the relationship after about a year. They did not object to the marriage. His wife told her family prior to the wedding. They did not approve of the match and threatened to kill them both if they married. His wife had changed her telephone number and they travelled to a different location to get married. He also appears to have suggested that his wife moved to different places after the wedding, but this is unclear.
With regard to the attack in January 2019 the applicant said that four or five individuals armed with a steel rod had attacked him for about 15 minutes. The attack ended when people came to his aid. He was treated for three or four days at the hospital. He did not know his attackers, but he believed the attack was related to his marriage because his assailants accused him of converting a Sikh woman to Hinduism. After a brief discussion the applicant confirmed that his wife still identified as Sikh.
The applicant said that after the attack in January 2019 he and his wife spent a week in Himachal Pradesh then about a week to 10 days in Amritsar before returning to Jalandhar where they resided in a different village until their departure in June 2019. He returned to India in September 2019 to investigate that situation but his wife’s family was looking for them and they left after about three weeks.
Following the interview, the applicant provided a copy of a medical certificate dated [in] May 2021 which states that the applicant was treated for injuries to his leg and arm at [a named] Hospital on 1 January 2019.
The delegate accepted that the applicant’s in-laws and the broader Sikh community did not approve of his marriage and believed that he had converted her to Hinduism. However, she did not accept that he or his wife had been threatened or harmed by anyone at any time because of their marriage or that members of the Sikh community continued to search for them. She also noted that the applicant and his wife were separated.
At the hearing on 7 October 2021 the applicant confirmed his marriage was accepted by his family and that his wife moved into his parents’ home after they married. However, her family and members of the Sikh community were very angry and they began to receive death threats. On 1 January 2019, shortly after he returned from [Country 1], they were attacked and he was beaten. They were rescued by passers-by. He reported the attack to the police but as he could not identify his attackers they did not file a First Information Report.
Following the attack, the applicant and his wife left his parents’ home and stayed in different places. Unknown people went to his parents’ home and inquired about him. I advised him that I understood that his wife had continued to work at the same job during that time, which suggested that they were not in hiding. He said that they had moved to a location close to his wife’s job and added that she did not always go to work. She left the job in March 2019 and they came to Australia in June 2019.
The applicant said that after he and his wife returned to India in September 2019 they stayed in Himachal, which is about 100 kilometres from his home in Punjab. They intended to remain in India, but they were attacked by unidentified people who told them that next time they were seen they would be killed, so they returned to Australia. He said that his wife’s family was very powerful and they could trace them anywhere in India.
I advised the applicant that it was my understanding that marriages between Sikhs and Hindus were not uncommon and while they may cause problems within the family, they were unlikely to cause problems in the broader community. As noted above, I also advised him that it was my understanding that the majority of the population of Jalandhar was Hindu and while Sikh extremist organisations had been involved in acts of violence in some parts of India in the past, this was no longer the case. I observed that in these circumstances it appeared unlikely that he would be at risk of harm from Sikh extremists or other Sikhs in Jalandhar because of his religion. He said that some families are dangerous and acts of violence sometimes happen. He said his wife’s family was wealthy and influential. He also said that someone was killed recently, so he could not return to India where he was at risk of being shot at the airport.
I noted that it appeared that the applicant and his wife had not mentioned the problems relating to their marriage in the application lodged in September 2019. He said that he had not mentioned these problems because he and his wife were having many problems and they were not thinking straight. He also said that they had told their representative about these problems, but he told them not to include this in the application. I advised him that I had difficulty accepting that any representative would have advised him not to include such an important claim. He maintained that he was telling the truth.
I advised the applicant that I had significant doubts about his claims, but even if I accepted them at face value it appeared that he could avoid future problems by relocating elsewhere in India, for example New Delhi or Mumbai. I noted that the vast majority of the population are Hindu. The applicant said that he would not be safe anywhere in India because his wife’s family could trace him and because Hindus were being persecuted by Sikh extremists who supported Khalistan throughout the country. I advised him that this was at odds with my understanding of the situation. He maintained that his claims were true.
I noted that the applicant had provided a medical certificate related to the claim that he was attacked in December 2019. I advised him that it was my understanding that it was relatively easy to obtain fraudulent documents in India and that in any event the documents he had provided could have been produced by anyone with access to a computer and printer. I advised him that in light of my problems with the credibility of his claims I had concerns regarding the genuineness of this document. I also noted that even if the document was genuine it merely stated that he had been injured and said nothing about how he received those injuries. He maintained that the document was genuine and said that because the police would not help him the hospital could not include this information on the certificate.
On 13 October 2021 the applicant asked that evidence be taken from his wife who could confirm his evidence regarding the January 2019 attack.
A second hearing was held on 22 October 2021. By that time I had had the opportunity to review the application lodged in November 2021 which confirmed that there was no mention of the claims he was now making regarding the problems he and his wife had faced because they followed different faiths. I advised him that this caused me to doubt that these claims were true and invited him to comment. He maintained that his claims were true and said that he had not included this information because he and his wife had both lost their jobs and had a lot of problems.
The applicant’s wife also gave evidence at the hearing. When asked why she had not mentioned the problems allegedly caused by her marriage to the applicant in the application lodged in November 2019 she said that she had not explained everything in that application but she had now provided those claims to the Department. Her application is yet to be finalised by the delegate. She said that she could confirm that the applicant was attacked by a group from the Sikh community when they visited a temple on 1 January 2019. She added that the village where her family lived was predominantly Sikh and claimed that her family was powerful and would have them jailed if they returned.
Country Information
According to DFAT’s 2020 Country Information report, 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 and only about 2 per cent of marriages are inter-faith. Marrying someone of a different faith can cause significant problems within families, ranging from a break in social relations to acts of violence. One reason for this is that inter-faith marriage generally takes place after one of the parties converts to the other’s religion, despite this being unnecessary under Indian law. Overall, 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). In most cases, couples in mixed unions will experience some form of societal and official discrimination. DFAT also notes a growing intolerance in relation to these issues in India.
Other sources paint a somewhat different picture, particularly in cases involving Sikhs and Hindus in Punjab. According to a 2013 article entitled Exploring the Myth of Mixed Marriage in India cited by the delegate, Sikhs and Hindus in Punjab often marry because of somewhat similar religious practices and customs. A May 2012 report from the Canadian IRBC also cited by the delegate quotes the legal council for the World Sikh Organisation of Canada who also stated that marriage between Hindus and Sikhs was not uncommon, especially among urban Sikhs from the same Khatri caste where intermarriage occurred frequently. In many cases couples do not face problems, but the situation can be different in cases where a couple marries against the wishes of their family.
Findings of fact in relation to the applicant’s marriage
I accept that the applicant is Hindu and his wife is Sikh. However, I do not accept that the applicant’s in-laws disapproved of their marriage or that they were threatened or harmed by members of the Sikh community because of their marriage or because it was wrongly believed that the applicant’s wife had converted to Hinduism. If these claims were true, I have no doubt that they would have been mentioned in the application lodged by the applicant’s wife in November 2019.
In these circumstances and in light of my findings on the credibility of the applicant’s claims regarding his involvement with Hindu groups and the problems he faced because of his religion, I do not accept that he was threatened or harmed by his wife’s family or Sikh extremists or other members of the Sikh community on 1 January 2019 or at any time prior to his final departure from India because he married a Sikh woman. Nor do I accept that he fears harm from anyone on return to India because of his marriage or the belief that he converted his wife to Hinduism. I believe he concocted these claims to support his application for protection.
In reaching this conclusion I have considered the applicant’s claim that information regarding his marriage was not included in the application lodged in November because he and his wife were facing difficulties and because his representative advised him to omit this information. However, I find both of these explanations implausible and I do not accept them. I believe that the applicant and his wife failed to mention problems caused by their marriage in November 2019 because these claims are untrue.
While this alone would be sufficient for me to reject the applicant’s claims regarding problems caused by his marriage, it is not the only problem with his evidence regarding this issue. For example, he has given differing accounts of his movements following the claimed attack on 1 January 2021. He told the delegate that his wife ceased working at the bank in December 2018 and they moved to Shimla and then Amritsar for some two or three weeks then lived in another part for Jalandhar. He initially repeated these claims at the hearing, but when I noted that it appeared that his wife had continued to work at her job after that time [as stated in her 2019 application] he said that they had moved to somewhere near her job. Not only is this at odds with his earlier evidence, it suggests that his wife could have been easily located by her family or others in the Sikh community which does not sit well with the claim that these people were actively looking for them in order to harm them.
Finally, I note the evidence regarding marriages between Sikhs and Hindus in Punjab set out above which suggests that while there may be problems within families because of mixed marriages, it is not likely to be viewed as so shocking or unacceptable that members of the broader community would seek to harm the couple involved. While this alone would not have caused me to reject the applicant’s claims regarding his marriage, I find it to be a further indication that he has not provided an accurate account of these problems.
In reaching the conclusion that the applicant’s claims regarding problems associated with his marriage lack credibility I have considered the medical certificate which he provided. However, as pointed out at the hearing, fraudulent documents can be easily obtained in India and the document provided by the applicant could have been manufactured by anyone with a computer and a printer. In any event, even if I accept it at face value it merely states that he was treated for injuries. It provides no information on how he was injured or by whom. In these circumstances and in light of my findings on his credibility regarding these and other claims, I have given it little weight.
I have also considered the evidence provided by the applicant’s wife regarding problems caused by their marriage and the claimed attack in January 2019. However, she is not a disinterested observer. At the hearing she spoke about her need to have the applicant’s financial support and assistance with her children. More, significantly, she failed to mention these problems in the November 2019 but has since included them in her own application. She has not provided a plausible explanation for her failure to mention these problems in her initial application which in my view suggests that she is not a credible witness. I have given very little weight to her evidence.
Consideration of claims relating to the applicant’s marriage to a Sikh

As discussed above, I do not accept that the applicant was threatened or harmed by his in-laws or anyone else because he is a Hindu married to a Sikh or because of a mistaken belief that his wife has converted to Hinduism. Nor do I accept that he genuinely fears that he would face serious or significant harm on return to India for any reasons associated with his marriage. This accords with the independent country information which indicates that while many married couples from different religions face problems with their family members or members of the broader community, this is often not the case for urban middle-class Hindus and Sikhs in Punjab.
After considering all of the relevant evidence I am not satisfied that the applicant faces a real chance of suffering serious or significant harm if he returns to Jalandhar in India within the reasonably foreseeable future for any reason associated with his marriage to a Sikh woman.
The applicant’s wife’s problems at the bank
According to the application lodged by the wife’s application in November 2019 she was employed by [a bank] from 2008 until the time she lodged that application. She said that she had been threatened, tortured and harassed by political leaders, bank officials, loan sharks, local goondas and finance brokers in Punjab because she failed to approve their fraudulent loan applications. The situation worsened after the Congress Party formed the government of Punjab in March 2017 and directed certain people to lodge fraudulent applications at her branch. Because of this her life was threatened and she left India.
There is no mention of any problems relating to the applicant’s wife’s employment in his application lodged on 30 April 2021. According to the delegate’s decision during an interview on 20 May 2021 the applicant stated that his wife was asked to fraudulently approve loans for an influential customer at the [bank]. She refused and the customer threatened to kill her and her family. She ceased working at the bank in December 2018 and he did not know whether she had received any threats following that time. The delegate asked why the applicant had not mentioned these problems in his initial application. He said that he was in jail and not in contact with his wife and he had forgotten a number of things. After the interview he said that his wife had been threatened and she would be killed by loan sharks if she returned to India.
At the hearing on 7 October 2021, I asked the applicant about the claims made by his wife in the application lodged in November 2019. He said that they related to her work at the bank and an illegal loan. I noted that he had not mentioned these problems when he lodged his current application and observed that he did not appear to fear harm because of problems related to his wife’s employment. He said that his life had also been threatened because of the problems faced by his wife. I asked him for more information. He said he was not sure who was involved or when the problems began because he was in [Country 1] at the time. His wife told him that she had been threatened by people who wanted her to approve a loan when he returned to India in December 2018. She did not give him many details, but he believed the threats had started several weeks earlier. The loan was for a large amount and his wife was threatened repeatedly while they were living anonymously before coming to Australia. His wife was never personally approached or attacked by anyone because she left her job, but the people involved were looking for them. I observed that as his wife no longer worked for the bank it seemed unlikely that they would be at risk of harm if they returned. He said that they would be in danger because the would-be borrowers would want revenge.
I do not accept that the applicant’s life was threatened by a customer at the bank where his wife worked because she refused to issue a loan which did not meet the relevant legal requirements.
First, and most significantly, if he genuinely feared harm for this reason, I believe he would have mentioned this claim when he lodged his current application.
Secondly, I found his evidence regarding the problems associated with his wife’s loan vague and unconvincing. He was able to provide almost no information regarding when his wife first had problems and who was threatening her. In my view it is not plausible that someone who believed that their life was threatened would not seek and obtain an understanding of the reason for this and who was making the threats. In addition, he has provided different accounts of the threats his wife received after December 2018. He told the delegate that he was not aware of any threats after that time but claimed at the hearing that the threats continued when they were living anonymously following that time.
After considering all of the relevant evidence I do not accept that the applicant’s life was threatened because his wife had refused to approve a fraudulent loan.
Consideration of claims relating to the applicant’s wife’s employment
As discussed above, I do not accept that the applicant was threatened by anyone because his wife refused to issue a fraudulent loan to a customer at the bank at which she worked.
I strongly doubt that the applicant’s wife was threatened by anyone for refusing to issue a fraudulent loan. As noted above, I found the evidence which she provided at the hearing regarding problems caused by her marriage to be lacking in credibility, which causes me to question the veracity of other claims which she has made. However, even if I accept this claim at face value, there is no suggestion that she was harmed by anyone despite refusing their requests for loans in 2017 and 2018 and it is now nearly three years since she ceased working at the [bank]. In these circumstances I do not accept that she would be of continuing interest to the people who sought to pressure her into issuing fraudulent loans if she returned to India.
I am not satisfied that there is a real chance that the applicant would face serious or significant harm from people who threatened his wife while she worked at the [bank] in order to obtain fraudulent loans.
Concerns relating to COVID-19
In his submissions to the Tribunal the applicant said that he would be in danger if he returned to India because of the COVID-19 pandemic. At the hearing I asked if he had been vaccinated against COVID-19. He said that he had received his first shot and was waiting for the second. I observed that it appeared that he would be reasonably well protected if he returned to India and that in any event problems related to the pandemic did not appear to be relevant to his protection application. He was invited to comment but provided no further information or submissions.
The COVID-19 pandemic has clearly had a significant impact in India. However, the applicant would be returning as a fully vaccinated person, which should provide him with significant protection. In any event, the pandemic is a medical emergency which affects the general population. No evidence or submissions have been provided which suggest that the applicant would face a real chance of suffering serious or significant harm for any reason associated with the spread of the virus if he returned to India.
I am not satisfied that there is a real chance that the applicant would face serious or significant harm on return to India for any reason associated with the COVID-19 pandemic.
Does the applicant meet the refugee CriteriON?
After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm for any reason if he returns to India now or in the reasonably foreseeable future. Therefore, I am not satisfied that he has a well-founded fear of persecution in India.
Does the applicant meet the complementary protection criteriON?
After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to India for any reason. Therefore, I am 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 there is a real risk that he will suffer significant harm.
CONCLUsions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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.
…

[2021] AATA 5599

28 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Natural Justice