2118260 (Refugee)

[2023] AATA 2574

2118260 (Refugee) [2023] AATA 2574 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Amarjit Singh Anand

CASE NUMBER:  2118260

COUNTRY OF REFERENCE:                   India

MEMBER:Katherine Harvey

DATE:13 June 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 13 June 2023 at 2:56pm

CATCHWORDS

REFUGEE – Protection visa – India – victim of an honour killing – belongs to lower caste – offender history report – intervention order was still in place – domestic violence – claimed fear is not genuinely held or objectively well founded – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 46, 91, 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 dependant.

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 15 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   CLAIMS AND EVIDENCE

   Background

2. The applicant is a [age]-year-old man who claims to be a citizen of the Republic of India (India). He was born and lived in [Town 1], Haryana, India. He first arrived in Australia on a student visa on [date] July 2008. He returned to India five times between 2010 and 2017. On his trip to India in 2010–11, he married [Ms A] and his wife joined him in Australia in 2013. On [date] May 2016, she returned to India.

3. In his application, the applicant provided details about his wife, and his (now late) mother, [and siblings] who live in India.

4. The applicant applied for a protection visa on 18 August 2017.

   Protection visa application

5. In his application, the applicant made the following claims.

6. The applicant claimed that before coming to Australia in 2008, he developed relations with [Ms A]. They married on [date] December 2011. His wife is a Khatri by caste and he is a Jat by caste.

7. The applicant claimed that his wife’s parents were against the relationship from the beginning and encouraged his wife not to go ahead with the marriage. His in-laws are very strict, religious, orthodox and strongly believe in the caste system. In their family it is considered a taboo if the girl gets married to a boy outside their caste.

8. The applicant claimed that they married in 2011 against the wishes of his in-laws and his wife joined him in Australia in 2013. They were living happily until his wife decided to go back to India on [date] May 2016 to visit her parents and ask for forgiveness for marrying his against their wishes.

9. The applicant claimed that was the last time his saw her. Although she had a valid visa to return to Australia she has not returned and he does not know her whereabouts.

10. The applicant claimed that he complained to the police but his complaint has not yielded any results as his in-laws are very influential and the police in India are known to be corrupt.

11. The applicant claimed that he had written a detailed representation to the Senior Superintendent of Police of district in India however he has not received any response to date. The police in India are known to be corrupt and biased.

12. The applicant claimed that his in-laws threatened him with dire consequences if he make any attempt to contact or meet his wife. They have categorically told him that they will kill him if they have to, in case he tried to come to India to contact or meet his wife.

13. The applicant claimed that his mother and brother have also been threatened by his in-laws. They are so scared and have advised him not to come back.

14. The applicant claimed that his in-laws are forcing him to take divorce from his wife. He claimed that he is madly in love with his wife. However, he is aware of the honour killings in India and is really scared as one of his childhood friends was killed in similar circumstances by his in-laws. He thinks that he will also meet the same fate if he returned to India. His in-laws are very influential and they are staunch supporters of the caste system. They will locate him and then harm him.

15. The applicant claimed that he is certain that his wife is in the captivity of his in-laws.

16. With his application the applicant provided a copy of a letter to the Senior Superintendent of Police in [City 1] India dated 12 June 2016, referred to at [10]. In the letter he outlined his claims and asked the police to locate his wife and protect her, and to provide him with police protection when he returns to India to meet his wife. He asked that they provide a reply to his address in India and he also provided his Australian mobile number.

17. With his application he also provided media articles about honour killings in India.

    Submissions in support of the application

18. On 20 January 2021, the Department of Home Affairs wrote to the applicant advising that his claims lacked substantiating details and inviting him to provide more information about the claims he raised and any comments on whether it would be reasonable for him to relocate in India.

19. On 17 February 2021, the applicant provided a response that included the following claims.

20. On [date] January 2017, he went to India to meet his wife, mother and brother in Haryana. He went to Chandigarh on [date] February 2017 to meet his wife at her parent’s place. He was mercilessly beaten by her father, uncles and cousins who thrashed him with punches and kicks. He pleaded to be allowed to see his wife but to no avail. They threatened to kill him if he took her name and addressed her as his wife. They threatened him to go back to Australia and forget about [Ms A].

21. The applicant claimed that they said that if he tried to contact [Ms A] from Australia then his mother and brother would be eliminated.

22. The applicant claimed that he was bleeding from my mouth and feared for his life. He immediately when to the police station [to] report the matter. Instead of writing his report, the police told him it was my fault and why did he marry [Ms A] against the wishes of her parents? They told him to go away. He understood that his in-laws had already approached the police. One of [Ms A]’s uncles is a senior police officer in New Delhi and police officers in India in every state oblige their counterparts and work in tandem with each other.

23. The applicant claimed that on 3 February 2017, he made a complaint in writing at the police station in [Town 1]. The police accepted his complaint and stamped it but no action was taken, presumably because his in-laws are very wealthy and influential and they must have managed the local police.

24. The applicant claimed that when he travelled to India in 2013, he did not suffer harm as they had not disclosed their marriage to [Ms A]’s parents and only his family knew. His life has been completely ruined as the whereabouts of his wife are not known.

25. The applicant claimed that his wife went to India in 2015 for her sister’s wedding and did not disclose their marriage. In 2016 she returned to India to break the news of their marriage and ask forgiveness for marrying a boy out of caste. He last saw her in 2016 and her whereabouts are unknown. He thinks she has been illegally confined by her parents against her wishes or has been killed.

26. The applicant claimed that his wife belongs to a [caste] who are Punjabi Khatris and he belongs to the caste Panghal and they are Jats from Haryana. They secretly got married in the court as [Ms A] had not informed anyone about their marriage. Only his family knew about it and later he told a few friends and other relatives and he threw a party and his family did a religious ceremony. His family always supported their marriage.

27. The applicant claimed that all this was done behind the backs of [Ms A]’s parents who are very orthodox and strongly believe in the caste system. They also strongly believe in honour killings. Their reputation in their caste is more important than their daughter’s happiness. They could never face the so-called embarrassment in their caste of their daughter having married a boy from a different caste. They consider his caste as much lower and inferior.

28. The applicant claimed that his wife’s delay in travelling to Australia was because she had not told her parents about their marriage and she had to apply for an independent student visa and her first application was refused.

29. The applicant claimed that his mother died in suspicious circumstances in March 2018 when she was hit by a truck. The hospital and police took no action. All pleas of foul play by him and his family fell on deaf ears.

30. The applicant claimed that his brother and one sister live in Kurukshetra and one sister lives in Sonepat. One sister used to live in Chandigarh but she was so harassed by his in-laws that she was forced to relocate. He is certain his in-laws are still torturing his wife as his brother and sisters have been threatened regularly that if he goes back to India he will meet the same fate as his mother.

31. The applicant claimed that his friend [Mr B] and his wife [Ms C], who belonged to a higher caste, married against her parents wishes and were murdered in cold blood by her family.

32. The applicant claimed that his father-in-law owns several businesses in Chandigarh and is a very wealthy man. One of his wife’s uncles named [name] is a ‘history-sheeter’ and a known criminal. He was involved in his beating in 2017 yet roams around freely and enjoys the patronage of the police officials and politicians. One of his wife’s uncles is [name], an [official] of Police in Delhi. He wields a lot of influence. He can easily dig him out from any corner of India with the help of his colleagues and counterparts.

33. The applicant claimed that he has not received a reply to date from the Senior Superintendent of Police or the Station House Officer against the complaints submitted in 2016 and 2017.

34. The applicant claimed that he has lost my mother and he is certain he will also be eliminated if he goes back to India. No protection whatsoever was ever provided.

35. The applicant claimed that he would rather die in Australia because he knows as a matter of fact that they will torture him gradually and not give him instant death. They told him in 2017 that if he comes back after his wife he will be eliminated without trace.

36. The applicant claimed that his wife’s first ‘cousin brother’ [Mr D] has confirmed and verified the barbaric nature of his in-laws and the threat to his life from them. They have informed him that the moment they know the applicant has returned to India they will hunt and kill him. They are agitated he has made complaints to police. They are apprehensive that if he comes back he will try to locate and meet his wife.

37. The applicant claimed that If he is not granted a complementary protection visa then he will be left with no alternative but to commit suicide and end his life in Australia. He has been in Australia for the last 13 years and has become part of the mainstream. Australia is his country for all intents and purposes as he is safe here and if he must die as part of his destiny then he would rather die here than in India.

38. The applicant also submitted a copy of a letter to the Station House Officer, Police Station [Town 1] dated 3 February 2017 (discussed at [22]), a copy of a complaint to the Commonwealth Ombudsman about education certificates, an English translation of a death certificate extract for the applicant’s mother and a death certificate in Hindi, a statutory declaration from [Mr D] who claims to be the applicant’s wife’s first cousin, education certificates, and articles about honour killing in Haryana including ones that mention [Mr B] and [Ms C] being murdered.

    The delegate’s decision

39. On 15 November 2021, a delegate of the Minister refused the protection visa application.

    Application for review

40. On 3 December 2021, the applicant applied for a review of the delegate’s decision. He 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.

    Submissions

41. On 30 November 2022, the applicant’s representative provided a pre-hearing submission with a 10-page letter dated 28 November 2022 from the applicant, a statutory declaration from [Mr D] dated 28 November 2022, the US Department of State 2021 Country Reports on Human Rights Practices: India and newspaper and journal articles on honour killings in India.

    The hearing

42. The applicant appeared before the Tribunal on 7 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr D]. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Hindi and English languages. The applicant chose to provide most of his evidence in English. 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.

43. The applicant was represented in relation to the review and his representative attended the hearing.

    Post-hearing submissions

44. On 21 December 2022, the applicant’s representative provided a post-hearing submission that included:

    ·   A submission from the representative that addressed an intervention order issued against the applicant, resettling in other parts of India, and honour killings in India after sufficient time of marriage. The representative also included a decision by the Tribunal (differently constituted) in May 2016 and a report ‘India: police communication and collaboration between stations; police communications technology; reasons for a state-wide or national search, inter-state arrests’ from the Immigration and Refugee Board of Canada dated 13 May 2013.

    ·   The marriage registration certificate of the applicant and [Ms A] dated 31 January 2012

    ·   A statutory declaration from [Ms E] dated 20 December 2022 and a copy of her Australian passport biodata page

    ·   A statutory declaration from [Mr F] dated 21 December 2022 and a copy of his Indian passport biodata page

    ·   A statutory declaration from [Mr G] dated 20 December 2022 and a copy of his Indian passport biodata page

    ·   An undated statement from [Ms H] witnessed at [named] Police Station

    ·   A statutory declaration from [Mr I] dated 21 December 2022 and a copy of his South Australian driver’s licence.

    ·   A statutory declaration from [Mr J] dated 21 December 2022 and a copy of his Indian passport biodata page.

    ·   Photos of the applicant and [Ms A]’s wedding

    ·   A Backward Class Certificate in the applicant’s name saying that he belongs to Panghal caste which has been notified as Backward Class. The Tribunal notes that the date of the certificate is not legible, nor is the stamp of the signatory.

45. On 20 February 2023, the applicant’s representative provided a letter dated 18 February 2023 from [a] Dental Surgeon, who certified that the applicant had attended his clinic with bleeding gums and deep cuts on his gums on 3 February 2017 and [he] administered three stitches. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

46. 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.

47. 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.

48. 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).

49. 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.

50. 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

51. 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.

    Analysis, reasons and findings

52. The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or he is owed complementary protection, or he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.

53. For the following reasons has concluded that the decision under review should be affirmed.

    Country of reference

54. The applicant claims that he was born in [Town 1], Haryana, India and is a citizen of India. He provided a copy of the biodata page of his Indian passport with his application.

55. 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.

    Assessment of claims and evidence

56. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]

    His wife’s whereabouts

    [1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.

1. The Tribunal accepts that the applicant married [Ms A] and their marriage was registered on [date] January 2012.

2. Movement records from the Department of Home Affairs confirm that [Ms A] last departed Australia on [date] May 2016.

3. A report from the Australian Federal Police contains the applicant’s Offender History Report from the South Australian Police Department dated 17 May 2018, which records that on [date] July 2015, in [named court], there was a hearing following the issuance of an interim intervention order for domestic abuse related to an offence on 19 June 2015. The applicant was the defendant. The Court confirmed the order and issued an intervention order that stated:

   1)   The defendant must not assault, threaten, harass or intimidate the protected person(s).

   2)   The defendant must not damage or interfere with the premises where the protected person(s) is staying, residing or is employed

   3)   The defendant must not damage or take possession of personal property belonging to the protected person(s)

   4)   The defendant must not publish on the internet or by E-mail, SMS or other electronic means any material about the protected person(s)

   5)   Any firearm in the possession of the defendant or any licence or permit held by the defendant authorising possession of a firearm must be surrendered to the Registrar of Firearms forthwith.

   6)   For so long as this intervention order remains in force, any licence or permit held by the defendant authorising possession of a firearm is suspended and the defendant is disqualified from holding or obtaining a licence or permit authorising possession of a firearm including in the course of his or her employment.

4. This information was put to the applicant at the hearing. The applicant was invited to comment or respond to the information that the Tribunal considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained that the information was relevant to the review because it indicates that [Ms A] may have returned to India in May 2016 and not returned to Australia because she wanted to leave the marriage, and that she has not contacted the applicant of her own free will.

5. The applicant was advised that, if the Tribunal relied on this information in making its decision, it may find, on the information before it, that he did not meet the criteria for the grant of a protection visa and affirm the decision under review. The applicant was invited to comment or respond to the information and advised that he could seek additional time to respond if desired.

6. At the hearing, the applicant said that it was true that it happened and that it was ‘just normal husband–wife things’ and ‘she realised afterwards like that she took the wrong step’, that ‘she call the cops for no reason’. The applicant said that his wife had ‘given a statement to the police as well afterwards that nothing happened between me and her and that’s why the court released me. After that we were living happily.’

7. At the hearing, the applicant claimed that ‘the court case was dismissed’. As clarified at the hearing, in the [court] on 1 July 2015 one charge of aggravated assault (no weapon) against child or spouse on 18 June 2015 was dismissed for want of prosecution however the intervention order was confirmed on 1 July 2015.

8. On 22 December 2022, the applicant’s representative submitted a letter dated 20 December 2022 with the following information provided about the intervention order.

   An intervention order was issued against the applicant

   It is correct that an intervention order was issued against the applicant because of the misunderstanding and argument between the applicant and his wife. There was absolutely no physical assault whatsoever and like any other married couple, the applicant and his wife had a heated argument that unfortunately resulted in the intervention order. The applicant never objected to the intervention order as it was not his motive right from day one to harm or hurt his wife in any manner.

   However, this is also a fact that the applicant and his wife stayed apart for only a week and his wife had realised that she had overreacted and the complaint to the police was a mistake on her part. She then moved an application before the police and court to withdraw the complaint and not press the charges against the applicant. This fact has been corroborated by many of [Ms A]’s friends who were close to both applicant and his wife. Some of the statutory declarations executed by the friends are attached herewith. The friends have categorically added on the basis of their personal knowledge that the applicant’s wife was very happy when she left for India as both were living happily. In any case, the applicant’s wife left for India several months after the alleged incident. Therefore, the apprehension that the applicant’s wife left for India because of the intervention order or the alleged incident between the applicant and his wife is not well founded. Had it been so, then the applicant’s wife would have left for India immediately after the alleged incident.

9. The representative also submitted five statutory declarations and one statement from friends of the applicant. The text of the statutory declarations and statement follow:

   [Ms E]:
   I know [Ms A] very well. She filed a complaint against her husband [the applicant]  few years ago due to heated argument between them. [Ms A] was with me during that time and police questioned her in my presence. During questioning she realise it was a mistake and regrets her decisions. Both [Ms A] and [the applicant] was parted for 3–4 days. During 3–4 days [Ms A] was staying me at my place [and] then she decided to withdraw the case and put an application for withdraw when she left for India in Oct 2016 both were living happily together before and she always mentioned to me that she has no issues. [Two lines of the handwritten statutory declaration have been obscured with correction tape on the scanned copy provided to the Tribunal.] Both [Ms A] and [the applicant] were staying happily together. 

   [Mr F]:
   I am acquainted with [the applicant]  and his wife [Ms A] . They make excellent couple [Ms A] filled a case against [the applicant] in 2015, but later with draw her complaint after realising her error. After that, the couple lived ever after. I never heard a disagreement between them. [Ms A] travelled to India to reassure her parents about her relationship with [the applicant] that everything was fine and she was very happy at that time.

   [Mr G]:
   I know [the applicant] from [number] years and his wife from long time too. [Ms A] filed a complaint against [the applicant] in 2015. [Ms A] realised after very short time that was her aggressive reaction towards a minor issue. I never heard any rift after that in their relation and found them very happy.

   [Ms H]:
   Myself [Ms H] [address]. I know [Ms A] , as she is my close friend. I remember few years ago her husband [the applicant] and [Ms A] had an argument and [Ms A] filled complaint against [the applicant]. After Filing complaint she realised that it was her mistake and she admitted it was just her aggressive reaction to the situation. After that incident I never heard about any other issues.

   [Mr I]:
   I know [the applicant] , resident of [address] having an SA Drivers Licence [number] since 2010. I also know his wife [Ms A]  after their marriage. They both were a lovely couple and appeared to be living happily with each other. In 2015, they had some argument and [Ms A] made a police complaint against [the applicant] but later, [Ms A] realised that she wasn’t going ahead with her police complaint and withdrew her police complaint. Being a friend, I never heard of any further issues between them after this incident.

   [Mr J]:
   I know [the applicant]  (pass no: [deleted]) and his wife [Ms A] since 2015. They are very good couples. Once in 2015 [Ms A] file case against [the applicant] and has been withdraw by her after realisation of her mistake. Moreover after that I never heard any issues in between them and [Ms A] was very happy and excited when she went to India she is going to disclose her marriage with [the applicant] to her parents.

10. The information in the Offender History Report records that the Intervention Order made by the [Court] on[date] July 2015 remained in place while [Ms A] was in Australia and was still in force at the time the report was prepared, at [time] on [date] May 2018. The Tribunal gives greater weight to the offender history report and the court record and finds that the intervention order was still in place on 17 May 2018.

11. The Tribunal does not accept that an interim intervention order is issued and then confirmed in court for ‘just normal husband–wife things’, as claimed by the applicant. The Tribunal does not accept that [Ms A] realised that she took a wrong step or that she called the police for no reason when she sought the intervention order. Nor does the Tribunal accept that [Ms A] had to leave for India immediately after the incident with the applicant to demonstrate that she was concerned by his behaviour. The Tribunal accepts that [Ms A] was aware that she had the protection of an intervention order preventing the applicant from assaulting, threatening, harassing or intimidating her amongst other things.

12. The Tribunal has carefully considered the statutory declarations and statement provided. The Tribunal notes that the statutory declarations were made on 20 December or 21 December 2022, seven-and-a-half years after the offence on 19 June 2015 for which the interim intervention order was issued. The Tribunal is concerned that the similarity of the wording used in the statutory declarations suggests that they are not independent, spontaneous recollections of events seven-and-a-half years later but the coming together of minds to create the statements. The Tribunal has considered the evidence before it and gives greater weight to the offender history report and the court record than to the statutory declarations and statement.

13. The evidence before the Tribunal is consistent with [Ms A] wanting to leave the applicant and voluntarily leave the marriage. Based on the information before it, the Tribunal does not accept that [Ms A] is being prevented from returning to Australia by her family. The Tribunal does not accept that [Ms A] is being held in captivity by the applicant’s in-laws, or that she is being illegally confined, or that she is being tortured or that she has been killed. The Tribunal finds that [Ms A] returned to India in May 2016 and that she has willingly remained there as she wanted to leave the marriage and that she has not contacted the applicant of her own free will.

    His wife’s family

14. In his application, the applicant claimed that he went to Chandigarh on [date] February 2017 to his wife’s parents’ home. He claimed that he was mercilessly beaten by her father, uncles and cousins who thrashed him with punches and kicks and threatened to kill him.

15. The applicant provided two statutory declarations from [Mr D]. In the first statutory declaration dated 11 February 2021, [Mr D] declared that the applicant’s wife is his first cousin and she lives in India at the moment. He declared that since the applicant married, his in-laws were not happy with the marriage and were always wanting to break it and that the applicant was getting regular threat calls from them. He declared that the applicant ‘was always scared going back to India as he would have been killed. Even now that threat is very much there.’

16. In the second statutory declaration dated 28 November 2022, he declared that he is aware that the applicant was ‘beaten badly in 2017’ and this fact was confirmed to him by the applicant’s in-laws. He declared the in-laws said that next time the applicant will not be spared if he comes back. [Mr D] also declared that the applicant belongs to a lower caste than his in-laws and that he is ‘pretty confident’ that if the applicant returns to India ‘he will be eliminated or will be badly harmed’ and that he can confirm that, looking at the in-laws background.

17. At the hearing, [Mr D] said that the applicant had called him from India and claimed that he was beaten badly and that they are threatening his family. He also claimed that the applicant had told him he was receiving calls in Australia that he can be eliminated if he returns to India and to just forget [Ms A]. [Mr D] said that he was not aware of any honour killings in the family.

18. At the hearing, the applicant claimed that he last spoke with [Ms A] on 30 May 2016. He claimed that [Ms A] said that she had told the family that they were married, and the family was not really happy at the moment and that he said to keep calm and try to come back as soon as possible. Later in the hearing, he claimed that he last spoke with her on 27 November 2016, to give good wishes on her birthday and they spoke for ‘like 40 seconds’. He said that he called on her old number that is now disconnected, and he said he subsequently tried every single person and no friends are in contact with her and no one knows where she is. The Tribunal does not accept that the applicant last spoke to [Ms A] on 30 May 2016. The Tribunal accepts that he called [Ms A] for her birthday, that she spoke briefly to him and that has she subsequently and voluntarily avoided all contact with him.

19. The applicant claimed that when he went to [Ms A]’s house and her family did not give him permission to enter the house. He said they asked him why he was trying to find her and said that they did not have any room in the house for him. He said that he kept requesting [Ms A]. The Tribunal accepts that the applicant’s evidence that he went to their home and they did not let him in and they did not let him see [Ms A], which is consistent with [Ms A] voluntarily leaving the marriage and not wanting to speak with the applicant and her family wanting them to divorce.

20. At the hearing, the applicant claimed that he was beaten by her father, uncles and cousins and they broke his finger, beat his thumb and he had blood coming from his face. He said he ran away from there because they were going mad. He said that he went to the medical first aid and then went home by bus, which is a three-hour journey to a different state, and then presented at the Police Station in [Town 1]. When asked if he had evidence to support his claim that his finger had been broken or that he had received first aid treatment, the applicant said ‘no one gives you a first aid report in India’. The Tribunal explained that it was concerned that the applicant did not have corroborative evidence, such as photographs or a hospital report, to support his claims that he was beaten.

21. On 20 February 2023, the applicant’s representative submitted a letter dated 18 February 2023 from [a] Dental [Surgeon].

    After checking my clinic records of Feb 2017, where we keep details of every patient who visits us for treatment. This is to certify that [the applicant] , resident of [address], India (as per his information that otherwise he is residing in Australia.)

    He came to my clinic with bleeding gums and deep cuts on his gums on the 3^rd of February 2017.

    He stated that he sustained injuries after having been beaten by his in-laws. He was provided first aid and the injury being of such nature, that I administered three stitches on his gums.

    He was observed for about 30–40 minutes.

    I advised him to consult me in case of any medical problem.

22. In his letter to the Station House Officer, Police Station [Town 1] dated 3 February 2017, the applicant wrote, in part, ‘[t]oday, I went to Chandigarh to meet my wife [Ms A] at my in-laws house but the abovementioned people did not allow me to meet my wife and also beat me up badly’.

23. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]

    [2] MIMA v Rajalingam (1999) 93 FCR 220.

    [3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

24. The Tribunal notes that the date that the applicant claimed he visited his wife’s family home was 2 February 2017 in his application and 3 February 2017 at the hearing. Based on the information provided by the applicant at the hearing, the letter to the Station House Officer, Police Station [Town 1] and the dental surgeon’s letter, the Tribunal accepts that the applicant visited his wife’s family home on 3 February. 

25. Based on the information before it, the Tribunal also accepts that the applicant received treatment for bleeding and cut gums on 3 February 2017 after a physical altercation with a member or members of his wife’s family on 3 February 2017.

26. The Tribunal notes that the dental surgeon reported that the applicant presented with bleeding gums and deep cuts on his gums that required three stitches. He did not report any other injuries. If the applicant had been ‘mercilessly beaten’, ‘thrashed with punches and kicks’, ‘beaten with a stick’ or ‘suffered a broken finger’, the Tribunal would have expected the applicant to have presented with more extensive injuries and the dental surgeon to have noted them. The Tribunal notes that the evidence from [Mr D] is a second-hand account of the applicant’s injuries. Based on the evidence before it, the Tribunal finds that the applicant exaggerated the physical altercation and embellished his injuries to support his application for protection.

27. At the hearing, the applicant claimed that the threats to kill him and his family started in 2016 after [Ms A] returned to India and told her family that they were married. In his 11 February 2021 statutory declaration, [Mr D] declared that the applicant ‘was always scared going back to India as he would have been killed.’ At the hearing, the applicant said that he had travelled on his own to his wife’s family home in February 2017. The Tribunal asked the applicant why he had travelled there on his own, given he claimed that the family had threatened to kill him. He said that he thought he would be okay, and he thought he would explain it to them and that they would accept him. He said if he had known what would happen, he would have taken his uncle or brother or friends or someone. The Tribunal questioned why, given it is known that honour killings happen in India, the applicant would have gone on his own to someone’s house who had threatened to kill him. The applicant said that he thought he could change their minds. The Tribunal does not find the applicant’s evidence convincing. The Tribunal does not accept that someone who genuinely feared for his life or his wellbeing would act in the way the applicant acted. The Tribunal does not accept that, if [Ms A]’s family had made threats to kill the applicant or his family, he would have visited their house alone. The Tribunal finds that [Ms A]’s family had not made threats to kill the applicant or his family before his visit in February 2017.

28. Based on the evidence before it, the Tribunal accepts that the applicant travelled to his wife’s family home where there was a physical altercation. The Tribunal accepts the applicant’s and [Mr D]’s evidence that [Ms A]’s parents wanted the applicant to divorce his wife. The Tribunal does not accept that [Ms A]’s family had threatened the applicant or his family. The Tribunal does not accept that the applicant feared that his wife’s family would kill him, or seriously or significantly harm him, or that he would be the victim of an honour killing because he belongs to a lower caste.

1. The Tribunal then considered the applicant’s claim that he fears harm from [Ms A]’s family if he returns to India. At the hearing, the applicant claimed that her family will kill him if he returns to India and that her uncle in the police force can easily find him anywhere. At the hearing, [Mr D] said that the family did not want their daughter to marry someone from a lower caste and they do not want the applicant around them anymore because he might try to look for his wife and contact her. [Mr D] said that [Ms A]’s uncle is a wrestler who has a bad reputation in terms of hitting. He also said that the applicant told him that he is getting phone calls, mainly from [Ms A]’s father and uncle, telling him that he can be eliminated if he comes back and to just forget [Ms A].

2. The Tribunal accepts the evidence from [Mr D] that [Ms A]’s family do not want the applicant around their daughter, which is consistent with their behaviour when the applicant visited their home in February 2017 and they would not let him inside. It is also consistent with [Ms A] voluntarily leaving the marriage and not wanting further contact with the applicant. However, not wanting the applicant around their daughter and [Ms A] not wanting further contact with the applicant does not demonstrate a willingness and ability on the part of [Ms A]’s family to seriously or significantly harm the applicant. There is insufficient evidence before the Tribunal to accept that [Ms A]’s family have the motivation or means to find him in India and ‘eliminate’ or ‘badly harm’ him. The Tribunal does not accept that the applicant fears that he may be a victim of honour killing because he belongs to a lower caste than [Ms A]. The Tribunal does not accept that his claimed fear is genuinely held or objectively well founded. The Tribunal does not accept that there is a real chance or a real risk that the applicant would experience significant harm or suffer serious harm from [Ms A]’s family now or in the foreseeable future.

   The applicant’s mother

3. The applicant claimed that his wife’s family threatened to harm his mother or brother. He also claimed that his mother died in suspicious circumstances as she had been hit by a truck while she was going to the market. At the hearing, the Tribunal discussed that his mother’s death certificate did not support his claim that she had died in suspicious circumstances and that there was no evidence before the Tribunal other than his claim. The applicant said that his family asked for a post mortem but one was not done. The death of the applicant’s mother after being hit by a truck is tragic however, on the information before it, the Tribunal does not accept that the applicant’s mother died in suspicious circumstances. The Tribunal finds that the applicant’s mother death was the result of an accident.

   The applicant’s sister

4. At the hearing, the applicant claimed that one of his sisters had received threats from his wife’s parents and uncle. He claimed that they told her they would kill her brother (the applicant) and them all if the applicant comes to India. He also claimed that his in-laws said to his sister’s husband that the husband will not be spared any more. The applicant claimed that these threats started in 2016 and continued in 2017, until his sister left Chandigah with her two sons.

5. The Tribunal does not accept that the applicant’s sister and her sons left their husband and father and moved to a different town because of threats from the applicant’s in-laws. The Tribunal does not accept that the applicant’s in-laws threatened to harm or kill the applicant or the applicant’s family members.

   Police

6. The applicant claimed that the police in India are corrupt and biased and that no action was taken on his complaint in writing at the police station in [Town 1] as his in-laws are very wealthy and influential and [Ms A] has an uncle who is senior police officer in New Delhi.

7. The country information says that India’s 1.9 million police officers ‘do not enjoy a good reputation’ and that police effectiveness is hampered by a lack of resourcing and infrastructure and a lack of ‘boots on the ground’.[4] The country information also reports:

   In India, for the police to investigate a case and commence the criminal justice process, they must prepare a First Information Report (FIR). According to 2018 NCRB data, where and how a person reports a complaint can influence their access to justice: 99 per cent of complaints routed through a court were registered as FIRs; 72 per cent of written complaints to the officer-in-charge of the police station were converted into FIRs; 53 per cent of written complaints were converted into FIRs; and only 5 per cent of oral complaints (where the duty officer takes down the details) were converted into FIRs. Only 3 per cent of complaints filed online (a new initiative in some states including Delhi and Uttar Pradesh) and 1 per cent of complaints taken by Emergency Telephone lines were converted to FIRs in the same period.[5]

   [4] Department of Foreign Affairs and Trade Country Information Report – India 10 December 2020 p 60.

   [5] Ibid 61.

8. The Tribunal accepts that the applicant’s complaint did not progress to a FIR. The applicant did not provide any corroborative evidence to support his claim that his in-laws are very wealthy and influential or his claim that [Ms A]’s uncle is a senior police officer. Based on the country information, the Tribunal accepts that the applicant’s complaint was one of the 18 per cent of complaints in writing to the officer-in-charge of a police station that are not converted into FIRs.  

9. The Tribunal notes the information provided by the representative about progress made in India to create, maintain and disseminate a secure national database for law enforcement agencies, to electronically integrate police stations and to provide a communication network that links the state capitals with New Delhi. Having found that there is no real chance and no real risk that the applicant will experience serious harm or suffer significant harm, the Tribunal has not considered whether the applicant would need to seek effective protection measures or to relocate within India. As discussed at the hearing, the applicant is an educated and skilled [age] year old man who speaks English, Punjabi and Hindi and has work experience in Australia.

   Suicide

10. In his response to the Department dated 17 February 2021, the applicant wrote that, if he is not granted complementary protection, he would be left with no alternative but to commit suicide. As discussed at the hearing, the Federal Circuit Court held that a decision-maker must be satisfied that another actor is intent on dispossessing someone of their life in a despotic or tyrannical fashion or otherwise subject to whim or caprice.[6] A person committing suicide is not being arbitrarily deprived of their life because there is not a separate actor, they are doing it to themselves. The applicant said that he understood.

    [6] EZC18 v MHA [2019] FCCA 464 at [74]. However, the Department’s Complementary Protection Guidelines state that although intention can be a relevant indicator of arbitrary deprivation of life, it is not a necessary element: Department of Home Affairs, Complementary Protection Guidelines, section 3.4.1.1, as re-issued 29 February 2020. This is despite the fact that the Guidelines were re-issued after both the EZC18 judgments at first instance and on appeal were delivered.

11. The Tribunal considered this claim in light of the Federal Court’s finding that it does not consider that self-inflicted harm constitutes ‘harm’ for the purpose of s 36(2)(aa) and s 36(2A). The Tribunal finds that voluntary suicide is not serious harm for a Convention reason for the purpose of s 36(2)(a) nor significant harm for the purpose of s 36(2)(aa) or s 36(2A). The Tribunal understands that the applicant would prefer to remain in Australia but, based on the evidence before it, the Tribunal is not satisfied that the applicant’s mental health will so impact his ability to work and care for himself as to amount to a real chance of serious harm or a real risk of significant harm if he returned to India now or in the foreseeable future. 

12. The Tribunal is not satisfied that the applicant will face a real chance of serious harm or a real risk of significant harm from [Ms A]’s family or the Indian police if he returns to India now or in the foreseeable future. The Tribunal finds that the applicant has manufactured his claims about his in-laws because he wishes to stay in Australia.

13. The applicant has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal. The applicant has not claimed, and there is nothing to suggest, that he has a well-founded fear of persecution for any other reason listed in s 5J(1) of the Act.

14. Therefore, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there is a real risk that the applicant will suffer significant harm.

    Conclusion

15. 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).

16. 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).

17. 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

102.   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.

…