2112867 (Refugee)

[2021] AATA 4973

2112867 (Refugee) [2021] AATA 4973 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2112867

COUNTRY OF REFERENCE:                   India

MEMBER:Roslyn Smidt

DATE:8 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 8 November 2021 at 11:53 AM

CATCHWORDS

REFUGEE – protection visa – India – particular social group – mixed religion marriage – member of the family unit – relationship ceased – credibility issues – physical assault – applicant arrested – application to vary apprehended violence order (AVO) – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994 (Cth), r 1.12; 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 September 2021 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant was included as a member of the family unit of his wife in a protection visa application lodged on 18 November 2019. He made no independent claims in this application. The delegate refused to grant the visa on the basis that he was no longer a member of the family unit of his wife.

3. The applicant appeared before the Tribunal on 22 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from his wife [named]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   THE RELEVANT LAW

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, 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.

6. The definition of a member of the family unit in relation to a protection visa application is set out in reg 1.12(4). It includes the spouse of an applicant. The definition of spouse is set out in s 5F which includes the following provisions relating to the visa applicant and their spouse:

   (a)  they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)  they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

   (c)  the relationship between them is genuine and continuing; and

   (d)  they:

   (i)  live together; or

   (ii)  do not live separately and apart on a permanent basis.

   CLAIMS AND EVIDENCE

7. The applicant and his wife were married in India [in] August 2018. The applicant is [an Occupation 1]. He lived and worked mostly abroad from about 2012 until shortly before their wedding.  The applicant’s wife obtained a Bachelors Degree in 2006. She speak, reads and writes English. She was employed as [an Occupation 2] prior to leaving India.

8. The applicant and his wife arrived in Australia most recently [in] September 2019. They have [number] children, [born] in Australia. No independent claims have been made on behalf of these children.

9. On 18 November 2019 the applicant’s wife applied for protection claiming that she had been threatened by customers of the [business] at which she worked because she had refused [specified actions]. This application has yet to be finalised by the Department.

10. [In] June 2020 the applicant was arrested by the police and charged with domestic violence related offences involving his wife. A provisional apprehended violence order [AVO] banning the applicant from contacting or approaching his wife and child was issued, and he was released on bail. He breached the AVO and committed a further act of violence on the same day and was arrested again. He remained in custody until [a day in] July 2020 when he was released on bail.

11. [In] November 2020 the applicant was found guilty of a number of offences including assault and contravening a DVO, and he received a [specified term] community correction order. He continued to be subject to a DVO which prevented him contacting his wife or child. At the hearing, it was established that he resided with his employer following his release from custody in 2020.

12. On 7 December 2020 the Department wrote to the applicant to invite him to comment on information that suggested he was no longer in a relationship with his wife and therefore no longer a member of her family unit. He was invited to provide his own claims for protection should he wish to do so. The letter was returned to sender.

13. [in] January 2021 the applicant was arrested after breaching the DVO and committing a further act of violence. He has remained in custody or migration detention since that time.

14. On 15 February 2021 the applicant attended an interview with the delegate at which he was invited to provide evidence regarding his relationship with his wife. He said that he was still in a relationship with his wife, but he was not in contact with her, did not know where she lived or her views on their relationship. He was advised that as he was in prison, facing charges of violence against his wife and the subject of a DVO preventing him from contacting his wife, it appeared that he was no longer in a relationship with her. He was given 7 days to provide further information regarding his relationship but failed to do so.

15. [In] March 2021 the applicant was sentenced to [a term] in prison with a 7‑month non parole period. He was released from custody [in] August 2021 and immediately placed in migration detention.

16. On 30 April 2021 the applicant lodged a protection visa application. His wife and child were not included as members of this family unit in this application. I was the presiding Member in this case.  The applicant claimed that he would be at risk of harm on return to India because he had been active in Hindu groups and because he was married to a Sikh woman. These claims were not mentioned in the application lodged in November 2019. The applicant claimed that their representative advised them not to include the claims and also said that they were omitted because he and his wife were having problems. I advised him that I found it difficult to accept these explanations. He maintained that he was telling the truth.  I refused the application on 28 October 2021 because I found the applicant’s claims lacked credibility.

17. On 7 September 2021 the applicant applied for a bridging visa E in order to be released from detention. He was interviewed by a Department officer on 9 September 2021. According to the delegate’s decision on this application, he said that he was still in a relationship with his wife, but he did not know her address and they did not speak because an AVO was in place which prohibited this. He said that he did not know his wife’s views on their relationship. He said that he would live with a friend and rely on community support if he was released from detention. His application was refused and he appealed to the Tribunal. According to the decision of a differently constituted Tribunal, he stated that he was not in contact with his wife but believed that they were still in relationship because they were not divorced and she continued to speak to members of his family.

18. On 21 September 2021 a delegate of the Minister found the applicant was no longer a member of his wife’s family until and therefore not entitled to a protection visa in relation to the application lodged by his wife in November 2019.

19. On 13 October 2021 the applicant’s representative provided a submission in which he said that the applicant believed that his family relationship was continuing and he was needed to ensure the welfare of his children. He also advised that the applicant’s wife would provide evidence at the hearing scheduled for 22 October 2021. A copy of an application to vary or revoke an AVO made [in] July 2021 was provided. The application was lodged by the applicant’s wife on 5 October 2021 and requested the removal of clause 6 so that the applicant could see his children. According to the application, the AVO was police‑initiated and the application was listed for a hearing on [a day in] October 2021.

20. The applicant attended a hearing in relation to this application on 20 October 2021. I observed the delegate had refused his application because while he claimed to be in a continuing relationship with his wife they had not lived together since June 2020 and there was an AVO banning him from contacting her. I noted that he had confirmed this providing evidence to the delegate and the Tribunal in relation to an application relating to a bridging visa application in September 2021 and he had also stated that he would live with a friend and rely on the support of the community if he was released from detention. I observed that this appeared to suggest that he was not in a continuing relationship with his wife at that time. I also noted that he had provided an application by his wife to vary the DVO by removing the condition preventing him from contacting his child. I observed that this appeared to suggest that even if the application was granted, he would still be subject to a DVO banning him from contacting his wife which suggested that they would not live together if he was released from detention and that he was not a member of his wife’s family unit.

21. The applicant said that he spoke to his wife on a regular basis and she wanted to continue to live with him permanently. He said that they had been advised by a lawyer that they could only apply to remove the conditions banning him from contacting or living with his wife after he was released from detention. I observed that it seemed unlikely that the applicant’s wife would have applied to have the condition relating to contact with his children but not the condition relating to contact with him if she wished to live with him. He said that he thought his wife did not have much knowledge of how to have this condition removed but she needed him and wanted their relationship to continue.

22. I asked the applicant when he had first spoken to his wife following his arrest in June 2020. He said that they had spoken in December 2020 when the court gave them permission to do so. After that, they spoke to each other every day. I observed that this appeared to be at odds with his statement in September 2021 that he had not been in contact with his wife since June 2020. He said that they had not been in contact since he was arrested [in] January 2021.

23. After some confused discussion regarding the applicant’s whereabouts following his first arrest, I asked if he had lived with his wife at any time since his arrest in June 2020. He said that they had lived together for about 6 or 7 months since that time. I noted that this appeared to be at odds with information in the delegate’s decision on his current application which suggested [wrongly] that he had been in custody or detention since June 2020 and had not been in contact with his wife since June 2020. He said that in December 2021, he was given permission to live with his wife and had they lived together from then until [a day in] January 2021.

24. Later in the hearing, I advised that the applicant that his wife had stated that they had not lived together at any time after June 2020. He said that they could not live together because of the DVO but they had spent time together when the court order was changed to allow this. He said that they used to meet in public places like parks and he supported his family financially.

25. The applicant’s wife also gave evidence at the hearing. I noted that the applicant had been found not to be a member of her  family unit in relation to the application which she had lodged in November 2019. I advised her that to be considered a member of the family unit of another person, it was not sufficient that an applicant was married to that person or shared parental obligations with that person; they must also have a mutual commitment to a shared life which was genuine and continuing and must not live separately and apart from their spouse on a permanent basis.

26. The applicant’s wife said that she was currently living in a refuge. I noted that there continued to be an AVO banning the applicant from contacting her and asked her what her intentions were in relation to the future of her marriage. She said that she had requested that the AVO be removed, but then there was another incident of domestic violence and the applicant had been arrested. She said that it was difficult for her because she had [number] children and they needed their father. I asked her to clarify her intentions with regard to her marriage. She said that she did not intend to divorce her husband and in the future they could live together. I asked why she continued to live in a refuge and why the AVO remained in place if she wished to live with her husband. She said that she applied for the DVO so the applicant could improve himself and their children would not have to observe his violent behaviour.

27. I advised the applicant’s wife that I wanted to discuss her contact with the applicant since June 2020. I asked how long he had remained in custody after he was arrested in June 2020. She could not recall when he was released but said that he had lived with his employer from the time he was released on bail until he was arrested [in] January 2021. She confirmed that they did not live together prior to his arrest. I advised her that the applicant had said that they had lived together for some months after he was released on bail. She said that they had never lived together but they were in contact by telephone and from December 2020 the court varied the order to allow him to come to her home to visit her and her children for up to 5 or 6 hours, although he was not allowed to remain overnight. He was arrested in January 2021 after being violent towards her again.

28. I noted that the applicant’s wife was currently living in a refuge and that a DVO was currently in place preventing the applicant from residing with her. I advised her that in these circumstances, I had difficulty accepting that she intended to live with him in future. She said that after the applicant was released on bail in 2020, he had continued to support her financially. She asked for the AVO to be removed completely but she was advised that it would only be possible to remove certain conditions and the condition relating to spending time with their children was removed.  

29. The applicant’s wife said that she had also asked that the DVO be removed completely more recently, but she was told there was no point because he was in detention. I asked her to confirm that the court had told her the DVO could not be removed while the applicant was in detention. She said that she had lodged an application with the court, but she had received a phone call from the police who told her that she could ask the detention centre for permission to talk to her husband but removing the DVO would not make any difference while he was in detention. I observed that the document which she had provided suggested that she had applied only to have the condition relating to the applicant’s ability to contact his children varied. The applicant’s wife said that this application had been closed because the police said that while the applicant was in detention nothing could be done.

30. I asked the applicant if there was anything he would like me to ask his wife. He said that he wanted to be released from detention so he could live with his family. I asked the applicant’s representative if there were any questions he would like me to ask the applicant’s wife. He said that he had no questions. He said that the applicant had been confused regarding several issues and he did not yet have a copy of the order relating to the recent application to vary the DVO against the applicant. I noted that the applicant’s wife had said the application had been closed and advised him that I would consider any evidence he wished to provide on the issue.

31. During the hearing, I noted that the applicant had claimed in his recent protection visa application that he and his wife had experienced serious problems before leaving in India because she was a Sikh while he was Hindu and such marriages were not accepted in their area. I asked the applicant’s wife why she had not said anything about these claimed problems in the application which she lodged in November 2019. She said that it was painful for her to talk about these matters. I advised her that the fact that she had stated only that she had problems relating to her work at a [business] in the 2019 application and neither she nor the applicant had mentioned any problems caused by the marriage at that time caused me to doubt that the latter claims were true. She said that the claims were very true and she could confirm the applicant’s claim that he had been attacked by Sikh men working for her family and his injuries required medical treatment. She said that she had now told the Department about the problems in India relating to her marriage. I advised her that I found it extremely difficult to understand why she would have failed to mention these problems in 2019. She maintained that her claims were true.

32. Following the hearing, the Tribunal wrote to the applicant to request copies of any AVOs or applications to vary an AVO in force since June 2020. In response, the applicant’s representative provided:

    ·     A copy of a provisional order for apprehended domestic violence dated [in] June 2020 which was issued by the police. It sets out alleged acts of violence by the applicant beginning in October 2019 and includes orders that the applicant must not approach or contact his wife and child. It states that the applicant’s wife was very fearful and did not want any contact with him. It includes an application to the court to impose these conditions for a period of 2 years.

    ·     A copy of a provisional order for apprehended domestic violence which appears to relate to the first order but has a different court date.

    ·     A copy of an order dated [in] December 2020 which varies an apprehended domestic violence order made [in] September 2020 to allow the applicant contact with their children if this is agreed to in writing by his wife.

    ·     A copy of an agreement dated [in] December 2020 signed by the applicant’s wife which states that she agrees that the applicant can contact her by text solely for the purpose of arranging contact with their older child. It states that the applicant’s wife could vary the agreement in writing.

    ·     A copy of an application to vary or revoke a Final AVO made [in] July 2021 referred to above.

    CONSIDERATION OF CLAIMS AND EVIDENCE

33. I accept that the applicant wishes to continue his relationship with his wife. I also accept that the applicant’s wife wants him to have a relationship with their children and that she would like him to provide financial support for her and their children. However, I am not satisfied that she wishes or intends to live with him on a permanent basis.

34. In the first place, the applicant’s wife’s evidence at the hearing regarding her contact with the applicant and her attempts to varying of the AVO issued after his arrest in June 2020 was confused and at odds with the information provided following the hearing. She claims that she asked to have the AVO issued in 2020 removed. No evidence has been provided which suggests that she lodged an application asking that the AVO be revoked, although it is possible that she contemplated doing so but was advised not to. More significantly, her evidence regarding the conditions AVO after it was varied in December 2020 is significantly different from the information on the AVO and written agreement provided to the Tribunal following the hearing. I do not accept that the applicant’s wife has provided an honest or accurate account of her contact with the applicant in December 2020 and January 2021.

1. Secondly, I found the applicant’s wife’s evidence regarding her recent application to vary the AVO against the applicant confused and unpersuasive. She initially suggested that she had lodged an application to revoke the AVO with court but had been advised by the police that it would not succeed while the applicant was in detention. No evidence of this application has been provided. The application to vary the AVO provided to the Tribunal states only that the applicant’s wife wanted the applicant to see his children. In the absence of any documentary evidence of an application to revoke the AVO, I do not accept that the applicant’s wife sought to have the AVO revoked because she intended to reside with him and continue their marriage if he is released for detention or at any time in the future.

2. Thirdly, as noted above in her application lodged in November 2019 applicant’s wife claimed she would be at risk of harm if she returned to India because of problems related to her employment at a [business], but said nothing about any problems caused by the fact that she and the applicant were followers of different religions.  She now claims that they were threatened and the applicant was attacked an injured in early 2019 because they follow different faiths and that she did not mention these problems because it was too painful to talk about. This is at odds with the applicant’s evidence which indicates that the problems were discussed with their representative. I do not accept that the applicant’s wife failed to mention any problems caused by her marriage to a Sikh man in her 2019 because she found it too painful to talk about.  I believe that there were not mentioned because they are not true. I believe that the applicant concocted this claim to support the protection visa application lodged in 2021 and that his wife repeated this false claim to assist him to obtain a visa to remain in Australia. While this has no direct relevance to the issue under consideration in this application, it clearly indicates that she is not a credible witness and is prepared to provide false evidence if she believes it will assist her achieve her goals.

3. In considering the evidence given by the applicant’s wife regarding her attempts to vary or revoke an AVO I have considered the applicant’s evidence that his wife did not have much knowledge of how to have conditions removed. I accept that the applicant’s wife may not have a full understanding of the processes relating to the varying or revoking of an AVO. However, I note that she is a well-educated professional woman who speaks English reasonably well and I do not accept that the problems set out above are the result of a lack of knowledge or understanding of the requirements or processes relating to varying an AVO.

4. After considering all of the evidence, I do not accept that the applicant’s wife has provided an entirely honest or accurate account of her attempts to have the AVO against her husband removed or varied to allow him to live with her since it was first imposed in June 2020. I am not satisfied that she ever intended to have these orders revoked or varied so that she and the applicant can live together in a genuine and continuing relationship as a married couple.

5. After considering all of the relevant evidence, I am not satisfied that the applicant is currently a member of his wife’s family unit. I am therefore not satisfied 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

6. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Roslyn Smidt
   Member