2217279 (Refugee)

[2024] AATA 2755

2217279 (Refugee) [2024] AATA 2755 (29 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2217279

COUNTRY OF REFERENCE:                   India

MEMBER:Louise Nicholls

DATE:29 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2024 at 5:18pm

CATCHWORDS

REFUGEE – protection visa – India – Federal Circuit and Family Court remittal – fear of harm from wife’s family and their associates – forced to marry and divorce one daughter then another, then remarry first – attacked, threatened and blamed for brother-in-law’s death – in-law’s influence in local area and links to ruling party – inconsistent evidence of forced or love marriages without in-law’s consent, and circumstances of divorces – late claim of caste differences – living close to in-laws, no evidence that attacks linked to them, and no harm or mistreatment over long period – return travel and extended stay – country information – police and court system – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

Administrative Appeals Tribunal Act (1975), ss 19A(1), 19D(4)

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

2. The applicant claims to be a citizen of India and is [Age] years old. He was born in the Punjab State, India. He last came to Australia as the holder of a visitor visa [in] June 2018.

3. The applicant applied for a protection visa on 18 July 2018. The applicant attended an interview at the Department of Home Affairs on 7 April 2021.

4. On 16 June 2021 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.

5. This is an application for review of that decision, and it was made on 13 May 2022.

6. On 26 July 2022, the Tribunal, differently constituted, found that the Tribunal did not have jurisdiction to review the matter because the applicant had not lodged the application for review within the relevant time limit.

7. On 22 November 2022 the Federal Circuit and Family Court of Australia (Division 2), by consent, quashed the Tribunal’s decision and directed the Tribunal to determine the application for review according to law. The court found that the notification of the delegate’s decision was defective and as a result the time for review had not commenced to run from the date the decision was said to have been notified to the applicant.

8. The matter is now before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

9. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[1] The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

   [1] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

10. The applicant appeared before the Tribunal on 9 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

11. The applicant gave evidence about his background, his migration history and his claims for protection.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Material before the Tribunal

13. The applicant provided several documents with his application for protection and review application, including:

    Departmental file no [Reference]

    • A copy of the biodata page of the applicant’s Indian passport and copies of passport pages with several departure and entry stamps.
    • Copies of Indian identity cards for members of the applicant’s family.
    • Divorce Petition [September] 2014 referring to the marriage of the applicant and [Ms A] on 15 December 2004.
    • Punjabi Marriage certificate- the applicant and [Ms B], dated [November] 2014 and date of registration [November] 2014.
    • Petition High Court of Punjab and Haryana dated [November] 2014 – the applicant and [Ms B] versus several parties.
    • Punjabi Marriage certificate- the applicant and [Ms A] - dated [April] 2018 and date of registration [May] 2018.
    • Affidavit of [Mr C] regarding the marriages of the applicant dated 26 October 2020.
    • Affidavit of [Mr D] regarding the marriages of the applicant 23 October 2020.
    • Letter from Office of Aam Aadmi Party stating that the applicant is a volunteer and block President of the party.
    • Donation receipts to various Australian charities.
    • List of responses to questions asked by delegate received 3 November 2020.

    Tribunal files 2206948 and 2217279

    • Delegate’s decision record dated 16 June 2021.
    • Letters concerning notification of the delegate’s decision record.

    CONSIDERATION

14. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.

15. The relevant law is set out in the attachment.

    Background

16. The applicant is [Age] years old and was born in [Village] village in the Hoshiarpur district of Punjab State, India. His family were engaged in rural farming work and are Sikhs.

17. He is married with [children] and his wife and children are living in [Village], Punjab State on a parcel of land owned by the applicant near the village. His [children] are [Ages] are going to school in the local area. He provides financial support for his wife and [children].

18. His mother lives with the applicant’s eldest brother near the village. He stated that the family home was outside the village and located on a farm. The applicant has [other brothers] living in [Country 1] where they operate a store there. He stated that the farm has been divided amongst the [brothers]; his eldest brother looks after his own and his [Country 2] brothers’ interests and his wife looks after the applicant’s interest. They employ someone to tend to the rice and wheat crops which are grown on the farm.

19. The applicant attended school in his local village and left school in Year 10. He worked with his father on the farm. From 2000 he also operated a [business] until 2013 and after that he [did a job task] for about a year.

20. The applicant speaks Punjabi, English and basic Hindi.

    Country of reference

21. The applicant claims he was born in, and is a citizen of, India. He provided a copy of his passport which was issued on [in] 2008 as well as other identity documents. He has consistently claimed that he is of Indian nationality, he spoke Punjabi fluently and he was familiar with the geography and culture of his home area in Punjabi State, India.

22. Taking into account the available evidence, and noting there is no issue as to identity or nationality, 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.

    What are the applicant’s claims?

23. The applicant’s claims are set out in the application for protection and in a written response to specific questions posed by the delegate.

24. The applicant discussed his claims for protection with the delegate at an interview on 7 April 2021.

25. The applicant gave oral evidence concerning his claims at the Tribunal hearing held on 9 May 2024.

26. Essentially the applicant claims if he returns to India, he faces serious harm from his wife’s family and their associates because of his marriage to their daughters. He claims the family blamed him for the respective marriages and divorces of their daughters and their subsequent humiliation. They also blame him for their son’s death in a motor vehicle accident. At the Tribunal hearing he also claimed that her parents objected to him for reasons of his caste.

    Evidence and claims

27. In the application for the visa the applicant claimed that

    ·He was pressured by his in-laws to marry both their daughters. He was forced to marry and divorce the older daughter, [Ms A]. He was later forced to marry and divorce their younger daughter, [Ms B]. He was then forced to remarry [Ms A].

    ·The constant pressure from his in-laws was unbearable. He was beaten by his brother in law.

    ·The local authorities refused to assist the applicant due to the influence of his in-laws. He fears being beaten to death upon return to India because he left his wife in India.

    ·Relocation is not option because his in-laws will find him.

28. The delegate requested further details of the claim on 6 October 2020. In response the applicant stated:

    Details of your forced marriage to both sisters;

    I have attached the divorce certificate which confirms that I was married to both the sisters and was divorced and was force to remarry again
    You claim that you were physically assaulted by your ex-wife’s brother. Please provide details or evidence of the assault;
    My friends has provided statement about the assault and the torture done on me by my in-law’s I have lost weight because of tension and harassment. I have provided some affidavit from my fiends confirming the torture.
    Why would you agree to marry your sister in law if you genuinely feared harm from your in-laws?
    What would I do if they threaten me to marry, hence I married her. I tried to move to different country too but they forced me to travel with my ex-wife. I have attached the visa grant letter and stamp pages of her passport which confirms her travel with me. I was forced to travel with her as they feared that I might not return back thus they send my ex-wife with me for travel.
    How did you come to know that your ex-wife’s family want to harm you after your departure from India? Please provide details or evidence of the threats of harm from your ex-wife’s family;
    They still try to call me or get in touch with me, they call my parents to ask about my where abouts here.
    Where do your ex-wife’s family live in India?
    Punjab India.
    No evidence has been provided that your ex-wife’s family are influential. Based on the information before me I may find that they will not be able to locate you anywhere in India. What do they do for work? Why are they influential? Why do you think that they will be able to locate you anywhere in India?
    They are linked to to people of current ruling party Congress Party and political people are very much influential in India. I am a member of AAM Admi party which is rival party of Congress Party. I have also attached my membership card for your reference thus you can see the evidence.
    They can easily locate me anywhere in India thus it is no point to go anywhere. I even tried to move to different country like [Countries 2 and 3] etc but they even sent my ex wife with me and as a result I was not able to move. I have attached my ex-wife’s visa grant letter and passport stamp copies to verify my claim.
    It appears this dispute has been longstanding, how have you and your family managed to remain safe? You have indicated in your application that your mother and father remain in India, how do they remain safe?  They only want to harm me but not my family but they keep threatening my family to know about my whereabouts.
    Details or evidence of continuing harassment or threats that would lead you to believe your harassment would continue upon your return to India.
    I have provide my friends statement to support my claims. They have seen my harassment and know that they may harm me.
    You claim that if you return to India you will be killed. It appears far-fetched that this would happen to you, when your mother, father and siblings have continued to avoid harm whilst living in India.
    They are not enemy of my family but of me. So they think of harming me not my family but they keep asking them about my location and whereabouts.
    You have indicated in your application that you have never been employed, how have you managed to support yourself in Australia?
    My family agriculture farming.
    What sort of work did you do in India after you completed high school?
    My family agriculture farming.

29. The applicant attended an interview with the delegate on 7 April 2021. The applicant provided the Tribunal with a copy of the delegate’s decision in which the delegate set out information provided to support the claims.

30. The applicant stated he could not return to India because his second marriage to his first wife's sister resulted in his in laws giving him trouble. The applicant stated that he wed his first wife [Ms A] in 2004. The applicant said his love marriage to [Ms A] was pleasant initially however they began to experience marital problems and the marriage ended in divorce.

31. The applicant stated he married his [Ms A]'s younger sister [Ms B] in 2014. The applicant explained that this was also a love marriage which ended in divorce several years later. The applicant said he remarried his first wife [Ms A] a short time later.

32. The applicant was asked to explain why he was threatened and coerced by his brother-in-law when this was not an inter-faith or inter-caste marriage. The applicant stated he was blamed for ruining [Ms B]'s life after their failed marriage because it is difficult for parents to marry their daughter for a second time.

33. The applicant was asked why his in-laws agreed for [Ms B] to marry him if he was deemed to have dishonoured the family after his first failed marriage to [Ms A]. The applicant said his marriage to [Ms B] was a love marriage. The applicant said his problems began after he married [Ms B] and after he lodged a court petition. The applicant said [Ms B] complained about the court petition.

34. The applicant said he was attacked on several occasions, and he felt constant danger from his in-laws. The applicant stated his life is ruined because of his in laws and he was worried that his in-laws will harm him. The applicant said his in-laws can do anything to him and their son passed away due to the stress the applicant caused them.

35. The applicant also stated that he fears harm because he had made a complaint about drugs to police in India but when questioned further was not able to provide any comprehensible explanation of this claim.

36. The delegate asked the applicant why, in his statutory declaration, he stated he was forced by his in-laws to wed then divorce both sisters, in contrast to the information he had given the delegate at the interview. The applicant stated he had instructed his first representative but later found out his first representative had cheated him. By way of explanation, he stated that his first representative did not take his evidence correctly and he does not know why the correct information was omitted from his statutory declaration.

37. The applicant was asked when he was last threatened or harmed by his in-laws on account of his relationships with [Ms A] and [Ms B]. The applicant said he was attacked once in 2015 and again in 2016.

38. He stated he was first assaulted by three or four people from the market and rescued by other people at the market. The applicant said the second incident occurred when he was returning home from the Sikh temple. The applicant was asked about the attackers. The applicant was unsure whether he was attacked by his in-laws or whether he was attacked by drug dealers. He escaped his attackers by running away. He stated this information was not included in his statutory declaration or earlier response because he had presumed his first representative had accurately prepared his application while gathering the required information.

39. The applicant stated that he did not relocate despite being threatened and attacked in 2015 and 2016 due to his family land and property.

40. The applicant stated he had not been threatened with harm by in-laws since travelling to Australia. The applicant said his wife had been attacked once and they sent threatening messages to his wife.

41. The applicant stated that both [Ms A] and [Ms B] are living with their family. The applicant stated that the family are powerful, influential and wealthy. He stated they have the financial capacity to do anything. He claimed his own family has not been harmed because they support his in laws. When the delegate noted that this conflicted with his earlier statement and response, he stated his representative had not provided the correct information.

42. At the Tribunal hearing held on 9 May 2024 the Tribunal asked the applicant about the countries he had visited before he came to Australia.

43. He gave evidence that he travelled to [Country 3] [in] July 2016 and spend 2-3 days there before returning to his home in India. He had intended to stay in [Country 3] but left because he had problems with the language. In April 2017 he travelled to [Country 2] with his wife [Ms B], and they stayed there for 6 to 7 days before returning to India. The purpose of that trip was to see if they could settle in [Country 2] but after a while they returned to India.

44. [In] November 2017 he first came to Australia with his wife [Ms B] on a visitor visa. He stated there were some issues with his wife’s family so he thought things might settle down while they were away, but things did not change much so he went back to their home in Punjab after 10 days in Australia. [Ms B] left about two weeks later.

45. The applicant stated that he returned to Australia [in] June 2018 on his own. At the time of his second arrival his visitor visa had not ceased. He stated that his father-in-law had been giving him a hard time and he was hoping to seek information on ways to remain in Australia.

46. When he first arrived, he found accommodation through the Gumtree website and made friends with the people with whom he was sharing a house. He successfully set up a bank account and a mobile phone account. He found work in [job tasks] when he first arrived and since last year, he has worked in a [business 2] following about 3-4 months of training in [business 2 skills]. He currently lives in a rented share house.

47. When asked about his claims for protection he stated he first married [Ms A] [in] December 2004. He stated that she was from a different village, and he met her as she had been a [customer] in his [business]. He claimed she was from a different caste. The Tribunal put it to him that this was the first time he had mentioned that she was from a different caste. It noted he had many opportunities to mention this issue before the hearing but had not done so. He stated his English was poor, so he did not always understand things.

48. The Tribunal put it to him that he had an interview with the officer of the Department in 2021, and he had not made that claim. He stated that at the interview he had explained that his previous migration representative had not included all his claims in his original claims. He claimed his representative had not followed his instructions.

49. The applicant stated his wife’s family hated him because he is a [Caste 1] and his wife and her family are [Caste 2]. The Tribunal put it to him that it was difficult to understand why this was the first time in 6 years that he had mentioned this issue. He stated it was a mistake. In any event he claimed his wife’s family were opposed to the relationship.

50. He stated that he and [Ms A] decided to get married and went to the Sikh temple in Jalinder where they married. They returned to the family in the evening and informed them of the marriage.

51. He claimed after they married and returned to the applicant’s home his father-in-law came to attack them so they went to a friend’s house to save themselves. After a few days they went to an aunt’s house and stayed there about a week. Two people they knew got involved and sorted out the problem and the couple came back to live in his home in the village.

1. He and his wife [Ms A] were married for 10 years before their divorce, and they have two daughters. When they were first married his wife looked after the house and children and he continued to help with the family’s farming land as well as running his taxi business.

2. In 2014 he and [Ms A] divorced and she and the children went to live with her parents. Some months later the children returned to live with the applicant. He then married [Ms A]’s sister, [Ms B] and she then looked after the children. [Ms A] visited the children regularly. The marriage certificate provided by the applicant noted that the couple had previously been unmarried, but the applicant stated that errors in Indian documents were common.

3. He claimed he and [Ms B] married without the consent of her family and the family were upset with the marriage. When asked what [Ms A] thought about the marriage, he stated she did not show any reaction. He stated that he and [Ms B] were married in 2014. She travelled to [Country 2] and Australia with him. The children visited their mother [Ms A] regularly at his parent’s in law family home. The children also stayed with their mother while the applicant and [Ms B] travelled overseas. He claimed his father-in-law was unhappy with the situation but accepted that the children stayed with the family while the applicant and [Ms B] went overseas.

4. The applicant’s brother-in-law died in a motor vehicle accident and his wife’s family blamed him for their son’s death. When asked why they blamed him, he stated that their son had started drinking alcohol due to his humiliation and they blamed him for the accident.

5. The applicant stated he and [Ms B] divorced in 2018 because she did not want to look after the children. She wanted to go out and have fun.

6. The Tribunal asked the applicant to explain why he returned to India in December 2017 and stayed for six months when he had a visa for Australia if he was afraid. He claimed that he had to return to India to manage issues with the divorce. The applicant was asked if anything happened to him during those six months, and he stated he mainly stayed indoors and did not go out. The Tribunal put it to him that if he had been genuinely concerned about his safety, he could have returned to Australia. He stated that he wanted to finish the divorce arrangements which were expensive and difficult.

7. He remarried [Ms A] in April 2018 and returned to Australia in June 2018. The children returned to live with [Ms A] but in the six months he was living in India he claimed the children lived sometimes with him and sometimes with [Ms A]. When asked how he cared for the children when he did not leave the house, he stated there was a bus stop outside the house and the children caught the bus to school. He claimed he did not work or go out at all and supported himself and the children using his savings. He claimed he remarried mainly because of the children. He confirmed he was still married, and the children were living with [Ms A] in his home.

8. He claims to fear he will be killed or seriously harmed if he returns to India and that his children will lose his financial support. He claims he will be killed by in laws or their associates because he married a girl from a different caste.  He stated they also hate him because their son felt insulted and consequently started drinking and then died in an accident.

9. The Tribunal put it to him that he had been married to both daughters. Over a long period of time he had not been harmed or mistreated as a result of his in law’s hostility.

10. He claimed he had been attacked in 2016. He was coming home from the temple and 3 or 4 men with covered faces stopped his car and beat and kicked him. People in the local area came running and saved him. He returned home and the family doctor checked him out. He had a few bruises but nothing serious. He brought a copy of a complaint made to police to the hearing but it had not been translated. He claimed he had not provided it prior to the hearing because he was unsure how to send it to the Tribunal. The applicant did not know whether the police would have a copy of the complaint at the police station. He stated that nothing happened because of the complaint.

11. The Tribunal asked the applicant if he wanted to rely on this document. If so, he should have it translated. In the end, as it was a short document, he read out the contents which were interpreted at the hearing.  

12. The document was addressed to the police in the local police station. His name and father’s name identified him as the complainant. It stated that he was returning from the temple on a motorbike [in] September 2016 when 5 to 6 people stopped the car in front of him and suddenly attacked him. They kicked and punched him until he ran away from that spot. He was hurt in the attack and asked for some action to be taken against the attackers.

13. He claimed he had also received many threats of harm on his mobile telephone. When asked how they are aware of his mobile telephone number he stated they found out from [Ms A]. He stated that although he was not harmed when he was in India he fears because of the divorce from [Ms B] and their son’s death he will be at risk of serious harm if he returns to India.

14. The Tribunal put it to him that if his in laws are upset, they are upset because of the family situation and not for any refugee related reason. The Tribunal discussed country information which indicated the generally he could seek assistance from the Punjabi police and an impartial court system. He claimed that his in laws had political influence and could influence the police. He stated he had lodged a petition with a court in 2014 and asked for protection, but the police did nothing.

15. The Tribunal asked him to explain the nature of the family’s power and influence. He claimed that they had a personal relationship with a local member of the legislative assembly. The Tribunal put it to him that country information indicated that police would follow up threats. He stated that is not always the case, giving an example of a prominent person killed in Punjab where the police have not been able to find the perpetrators.

16. The Tribunal asked him why he could not move somewhere else if he did not want to remain in his home area. He stated that taking care of his family would be difficult and that last time he was in India they found out where he was living. The Tribunal put it to him that it would not have been difficult to find him if he had been living in his own home. He claimed he could not move because he had no property or business. The Tribunal put it to him that he had found work in Australia and had been able to manage other aspects of his life, such as renting accommodation, opening a bank account and operating a telephone account. He stated it was harder to find work in Punjab than Australia and taking his family away was very difficult. The Tribunal put it to him his family could remain in the family home where they had lived for many years in a stable situation.

17. The Tribunal put it to him that it appeared he wanted to stay in Australia for economic reasons. He stated he wanted to protect his life and he can support his family if he lives in Australia.

18. The Tribunal asked the applicant about the claim he made when he spoke with the delegate regarding a complaint about drugs. He stated that he lodged a complaint about people who had supplied drugs in his village. The police let these people know that he had made a complaint. When asked how he knew this he stated he made the complaint in Chandigarh by telephone. The police in [Location] did not take any action and they came for those people who lodged the complaint. He thought it must have been the police. The Tribunal pointed out that nothing happened to him because of his complaint, and he agreed.

19. The Tribunal put it to him that he has given several different accounts of events and it had gone through his evidence and indicated where it had concerns. He stated the reason there were inconsistencies was due to his former representative. He stated the claims he had made at the hearing were those he wished to rely on.

20. The Tribunal put it to him that the fear he claimed from his in laws appeared to be a private family matter between him and his parents in law. He stated some of it had to do with the caste business but if your life was under threat, it does not matter the reason.

21. The Tribunal told the applicant that if he wished to have the police report translated it would give him 7 days to do so. The Tribunal told the applicant who would help him if he wished to have the translation lodged with the Tribunal. He stated if the Tribunal was aware of the contents that was sufficient for him. 

22. At the end of the hearing, he stated he had been law abiding, was working and paying tax and had given donations to several charities.

    Assessment of evidence and claims

23. The Tribunal accepts that the applicant was born and grew up in a rural area of Punjab State, India and that he is a Sikh.

24. The Tribunal accepts that the applicant has been married three times. He was first married to [Ms A] in 2004 and then divorced in September 2014, then married to her sister [Ms B] in November 2014 and then divorced in 2018 before he remarried [Ms A] in 2018. He is currently married and his wife and [children] are living in his family home.

25. The Tribunal does not accept that the applicant has given truthful or reliable evidence to support his claims.

26. Firstly, the applicant’s evidence has changed quite significantly between the time he made his application and gave a written response to the delegate, to the information he provided to the delegate in his interview and in the evidence he gave at the Tribunal hearing.

27. Initially he claimed that he was pressured by his in-laws to marry both their daughters. He claimed he was forced to marry and divorce the older daughter [Ms A], later forced to marry and divorce their younger daughter, [Ms B] and then forced to re marry [Ms A]. In support of this claim he provided affidavits said to be from two of his friends, [Mr D] and [Mr C]. In those affidavits both deponents stated they had known the applicant for over 12 years, that he had been harassed by his brother-in-law and forced to marry [Ms A] and [Ms B]. They both claimed he had been threatened by his brother-in-law who was influential.

28. However, when he attended the delegate’s interview, he claimed he feared his in laws because he had married [Ms A], then divorced her and married her younger sister, Gurpreet and then divorced her and remarried [Ms A]. He claimed both marriages had been love marriages and the family were humiliated when he divorced his second wife because it was difficult for her to remarry. At the Tribunal hearing he also claimed that his in laws had not approved of his marriage to either [Ms A] or to [Ms B] but now claimed it was due to inter-caste issues.

29. At the interview he claimed that he had been attacked many times. In particular he claimed he had been attacked twice; once in 2015 and once in 2016. He claimed he was first attacked from the market and was saved by other people at the market who came to his aid. He was attacked on the way home from the temple in 2016. He told the Tribunal he had been attacked once in 2016 when he had been ambushed by unknown attackers in his motor vehicle. He claimed that when he was returning from the temple that he was saved by people in the local area who came to his assistance. He then went home, sought medical assistance and later made a complaint to police. In the complaint to police, it noted that he had ran away and escaped. He also claimed that he had been threatened with harm many times.

30. The Tribunal does not accept the applicant’s explanation for the inconsistency in his evidence. He did not seek to rectify the evidence he gave in his initial application and written response until he was interviewed in April 2021. Further he could not satisfactorily explain why his representative would put forward claims which were so significantly different to the later claims in both his application and in the later response.

31. The Tribunal does not accept the applicant’s claims that his parent’s in law objected to his marriages because he was of a different caste to their family. This claim had not been mentioned at any time before the Tribunal held a hearing in May 2024. At the hearing he could not satisfactorily explain why he had not raised the claim prior to May 2024. He claimed that his first representative had not accurately recounted his claims. However, it was put to him by during the interview with the delegate that his marriage was not an inter-faith or inter-caste marriage. He did not reject this assertion, nor did he use this opportunity to claim that his parents in law’s objected to the marriages for reasons of caste.

32. The Tribunal does not accept that his parents in law orchestrated an attack on him in either 2015 or in 2016. The evidence regarding these claimed attacks is inconsistent. Further it does not clearly link the claimed attack with his parents in law. In his evidence at the Tribunal hearing, he only mentioned one attack in 2016 and he could not identify the attackers and he speculated that the reason for the attack was the hostility of his parents in law. He claimed at the hearing that bystanders helped him at the time of the attack whereas in the police complaint it noted that he had escaped from the attackers. Further he had not mentioned any attacks in his application for protection or in his written response. He claimed that the police report he provided at the hearing supported his evidence. The police report appeared to be a complaint made by the applicant about an attack which could not identify the alleged perpetrators or the reason for the claimed attack. The applicant stated he did not know whether the police still held a copy of the report. He chose not to have the report translated and provided to the Tribunal.

33. The Tribunal does not accept that his parents in law have threatened to harm him if he returns to India. The evidence before the Tribunal is that the applicant was not harmed by his parents in law during the period of time he lived in his home in Punjab and before he came to Australia. Further he obtained and travelled on a visitor visa to Australia in 2017 stayed for about 10 days and then returned to his home in Punjab in 2017. He stayed in his home in Punjab for six months before he returned to Australia on that visitor visa. If he had been afraid of his parents in law and if they were seriously threatening him, it considers he would have returned to Australia at the earliest opportunity. It does not accept his explanation that he stayed at home to avoid them. If he had been sharing care of his [children] with [Ms A], as he claimed, his parents in law would have been aware of his residence in his home. The Tribunal does not accept he remained for so long because he was arranging his divorce from [Ms B]. The Tribunal notes that he also married [Ms A] during this period of residence in Punjab. If he was genuinely fearful it does not accept he would have remained in his home when he still had the right to return to Australia on his visitor visa which ceased after his return to Australia.

34. The Tribunal accepts that the applicant’s parents in law may have been unhappy with his decision to divorce [Ms A] and marry [Ms B] in 2014. He provided a copy of a petition he and [Ms B] made in the High Court in Punjab and Haryana seeking protection from any actions of his parents in law which supports evidence of there was some hostility in 2014. However, since the marriage in 2014 he continued to live in his home in Punjab without coming to harm from his parents in law, his [children] lived with his parents in law while he and [Ms B] travelled overseas in 2027, they accommodated [Ms A] while he was living with [Ms B] and his [children] visited [Ms A] and his parents in law at their home on a regular basis.

35. The Tribunal does not accept that his parents in law wish to harm him because they blame him for their son’s death in an accident. The applicant told the delegate that one of the reasons he returned to Punjab for six months in 2017/2018 was to pay his respects after his brother in law’s death. If he believed that he was blamed for his death the Tribunal does not accept he would have returned. If he had been threatened for this reason it does not accept he would have remained for six months when he could have returned to Australia.

36. As the Tribunal does not accept that the applicant’s parents in law are seeking to harm him if he returns to India, it does not accept that they will use their influence with police or political friends to interfere in the administration of justice.

37. He gave evidence that he now provides financial support for [Ms A] and his [children] while they live in his family home and the Tribunal accepts this evidence.

38. The Tribunal does not accept that the applicant faces harm from unidentified persons who were supplying drugs in his village. The evidence the applicant gave was unsatisfactory and did not clearly state the identity of these persons and whether he had been threatened; the evidence was somewhat confused. In any event, he stated he had not been harmed by these unidentified persons.

39. The Tribunal sought evidence from the applicant regarding the prospects of relocation and whether he could access state protection. Given the findings made above it is not necessary to make findings on these matters.

    Does the applicant meet the refugee criterion?

40. Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to India now or in the foreseeable future he faces a real chance of persecution for reasons of family hostility or threats of harm.

41. Putting aside the question of whether the claim has any connection to one of the reasons in s.5J(1)(a) of the Act, the Tribunal does not accept that the applicant faces a real chance of serious harm at the hands of his parents in law or their associates for the reasons set out above. Further it does not accept that he faces harm from unidentified drug suppliers.

42. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in section 5J(1)(a) of the Act.

    Does the applicant meet the complementary protection criterion?

43. Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.

44. The Tribunal has taken into account its findings on material questions of fact and its view of the applicant’s future conduct. It does not accept that the applicant faces harm from his parents in law or drug suppliers if he returns to India.

45. The Tribunal considers that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life, or the death penalty.

46. Thus, having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that that there is a real risk the applicant will suffer significant harm.

    Conclusion

1. 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).

2. 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).

3. 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

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

Louise Nicholls
Senior Member

ATTACHMENT

Criteria for a protection visa

102.   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.

103.   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.

1. 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).

105.   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.

1. 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

107.   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.

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.

…