2408529 (Refugee)

Case [2024] AATA 3353

2408529 (Refugee) [2024] AATA 3353 (10 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2408529

COUNTRY OF REFERENCE:                   India

MEMBER:Fraser Robertson

DATE:10 June 2024

PLACE OF DECISION:  Perth

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

Statement made on 10 June 2024 at 1:05pm

CATCHWORDS

REFUGEE – protection visa – India – particular social group – forced marriage – divorce – mixed caste relationship – fake dowry charges – physical assault – honour killing – return visits to India – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 46, 48, 65, 424AA, 499

Migration Regulations 1994, Schedule 2

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227

ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271

AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444

CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496

CSV15 v Minister for Immigration and Border Protection [2018] FCA 699

DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1

EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804

ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716

Fox v Percy [2003] HCA 22; 214 CLR 118

GLD18 v Minister for Home Affairs [2020] FCAFC 2

Mabo v Queensland [No 2] (1992) 175 CLR 1

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816

SZRSN v Minister for Immigration and Citizenship [2013] FCA 751

W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757

STATEMENT OF DECISION AND REASONS

INTRODUCTION

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

    BACKGROUND

  2. The applicant is [an age]-year-old male from India who came to Australia in May 2008 on a student visa. He has lived in Australia since then, apart from three trips in 2009, 2010, and 2011.

  3. The applicant's student visa was cancelled in 2011.

    First protection visa application

  4. The applicant first applied for a protection visa in 2014. A delegate of the Minister refused that application. The applicant applied to the…

Continue reading 2408529 (Refugee)

Sign in free to access the full text

Details
AGLC
2408529 (Refugee) [2024] AATA 3353
Case
[2024] AATA 3353
Decision Date

CaseChat Overview and Summary

This matter concerns an application for review of a decision by a delegate of the Minister for Home Affairs to refuse the applicant, a male from India, a protection visa. The applicant arrived in Australia in 2008 and has remained in the country since, apart from three return visits to India. His initial protection visa application in 2014 was refused, a decision affirmed by the Tribunal in 2016 and subsequently dismissed on judicial review in 2017. Following detention in 2020, the Minister lifted a bar on further applications, allowing the applicant to lodge the current application in December 2023.

The primary legal issue before the Tribunal was whether the applicant had established that he met the criteria for a protection visa, specifically whether there were substantial grounds for believing there was a real risk of significant harm upon return to India. This involved assessing the applicant's claims of persecution stemming from his marriage to a woman of a different caste and religion, and the alleged threats from her family, including potential involvement of Indian authorities. The Tribunal was required to consider the applicant's credibility and the evidence presented, including a divorce judgment from India.

The Tribunal considered the applicant's claims regarding his mixed-caste marriage and subsequent threats. It noted the applicant's evidence that his family arranged his marriage to Ms A, who was of the same Brahmin caste, but that he later left India for Australia without intending to marry. Upon his return for the wedding, he felt compelled to marry Ms A due to familial pressure. The Tribunal also considered a divorce judgment which detailed allegations by Ms A of mistreatment and assault by the applicant, particularly concerning dowry demands. The applicant's current fears centred on potential harm from Ms A's uncle and brother due to his marriage to Ms C, who is of a different religion and caste, and the alleged influence of a local official. The Tribunal applied the principles of assessing credibility, acknowledging the difficulties in such assessments, particularly when accounts are given through interpreters or in distressing circumstances, and noted the need to give the benefit of the doubt to generally credible applicants.

The Tribunal affirmed the delegate's decision to refuse the protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').BACKGROUND The applicant is [an age]-year-old male from India who came to Australia in May 2008 on a student visa. He has lived in Australia since then, apart from three trips in 2009, 2010, and 2011. The applicant's student visa was cancelled in 2011.First protection visa application The applicant first applied for a protection visa in 2014. A delegate of the Minister refused that application. The applicant applied to the Tribunal for review of that refusal. In March 2016, the Tribunal (differently constituted) affirmed the decision to refuse to grant him a protection visa.[1][1] See 1504601 (Refugee) [2016] AATA 3674 (Member Findson). An application for judicial review of the Tribunal's decision was dismissed by the Federal Circuit Court of Australia (as it then was) [in] June 2017.[2] Following the dismissal of his judicial review application, the applicant sought Ministerial intervention and attempted to apply for several substantive visas, most of which were barred by s 46 of the Act. [2] See AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 (Judge Lucev). The applicant was detained as an unlawful non-citizen in March 2020.Second (and current) protection visa application As the applicant had applied for and been refused a protection visa, he was barred from making any further application for one by s 48A of the Act. [In] December 2023, the Minister lifted the s 48A bar for 7 days.[3] The applicant applied for a protection visa on 11 December 2023. The applicant was interviewed on 7 March 2024 regarding that application. I have listened to that interview. Having done so, I am satisfied that the delegate's decision record fairly summarises the content of the applicant's responses at the interview. [3] Migration Act 1958 (Cth), s 48B. The delegate refused to grant the applicant a protection visa on 11 April 2024.Review application The applicant applied to the Tribunal for review on 17 April 2024. The applicant has provided a copy of the delegate's decision to the Tribunal. The applicant attended a hearing before the Tribunal on 24 May 2024 to give evidence and present arguments. The applicant sought, and was granted, until 7 June 2024 to provide further submissions following the conclusion of the hearing. He provided further material on [date]. As the applicant is presently detained, I have endeavoured to prioritise the finalisation of this decision such that he is not detained any longer than is necessary to enable his application to be determined.CLAIMS AND EVIDENCEPersonal background The applicant was born in [specified year] in Ludhiana, Punjab, India. He is Punjabi, Hindu, and of the Brahmin caste. The applicant completed primary and secondary school. While living in India, he claims he was never required or expected to work because his father was wealthy.Life in India before departure to Australia

Evidence

Evidence Before The Court

As the applicant is presently detained, I have endeavoured to prioritise the finalisation of this decision such that he is not detained any longer than is necessary to enable his application to be determined.CLAIMS AND EVIDENCEPersonal background The applicant was born in [specified year] in Ludhiana, Punjab, India. He is Punjabi, Hindu, and of the Brahmin caste. The applicant completed primary and secondary school. While living in India, he claims he was never required or expected to work because his father was wealthy.Life in India before departure to Australia The applicant claims to come from a strict family. His family are also of Brahmin caste. The Brahmin caste is the highest in India's caste system. At the hearing, the applicant claimed he got engaged to [Ms A] when he was around [age] years old. He claimed [Ms A] lived over 100 kilometres away, and his parents selected him. Other than that, [Ms A] was also of Brahmin caste; the applicant claims he did not know how or why [Ms A] was selected. His evidence was that when he got engaged, he had agreed with his family that his wedding with [Ms A] would only happen when he "felt happy with it". The applicant commenced a bachelor's degree in India in [specified year].[4] However, the applicant's evidence was that he wanted to travel to Australia for his education and that his parents supported that decision. After that, the applicant withdrew from his bachelor’s degree in May 2008 and travelled to Australia as a student visa holder.[5] At the hearing, the applicant's evidence was that when he left, the applicant claimed that he made no promise to return to India to get married. [4] Protection visa application, p 34. [5] Protection visa application, p 34; Delegate's decision, p 1.First period in Australia The applicant enrolled in [Course 1] in Australia and commenced employment as [two specified occupations].[6][6] Protection visa application, p 32. The applicant's evidence was that his father telephoned him while living in Perth and decided it was time for him to marry [Ms A]. The applicant's evidence was that he told his father he did not want to get married and started getting upset. His evidence was that he lived with two or three friends at the time, and those friends sought to discuss the matter with his father on his behalf to explain that the applicant did not want to get married. The applicant's evidence was that his father said, “If you don't come, then don't ever come back." When asked why he returned to India to be married, he explained that he was unsure about returning. He explained that he was still young and had never lived outside his parents' house in India. He explained that everything was provided for him in India, and his father made good money, so he never had to work. He explained that his father claimed he would be insulted if he didn't return, so he felt he had no option other than to return. He claimed he was upset at the prospect of marrying someone he did not want to marry. First return trip to India (2009)

Decision

Reasons for decision

The applicant has provided a copy of a judgment from the Family Court sitting in Jalandhar dated [in] May 2017 concerning a divorce petition filed by [Ms A] against the applicant ('Divorce Judgment').[24][24] Divorce Judgment, p 1. I am conscious that the Divorce Judgment is a product of proceedings that were heard ex parte without the applicant being heard. Nevertheless, the applicant has provided the document and it must be considered. The evidence of [Ms A] is that the applicant and his family mistreated her. She claims that the applicant would beat her when he was intoxicated "for want of dowry".[25] She claims she was turned out of the marital home about one month after their marriage; however, she was later permitted to return.[26][25] Divorce Judgment, p 4.[26] Divorce Judgment, p 2. She claims the applicant then travelled abroad without informing or providing his address. She claims that the applicant did not contact her when he was overseas.[27][27] Divorce Judgment, p 2. The Divorce Judgment does not refer to the applicant returning to India in 2010 or 2011. It records findings that in the first week of January 2016, the applicant's parents turned [Ms A] out of the marital home.[28] The Divorce Judgment makes findings that immediately after marriage, the applicant and his family members started taunting, harassing, maltreating and demanding dowry from [Ms A]. It finds that the applicant used to "abuse, assault and beat" [Ms A] under the influence of alcohol. [28] Divorce Judgment, p 2. I am not aware of the reason [Ms A] would have had to lie in her evidence. Besides obtaining a divorce, [Ms A] did not appear to gain any particular financial or other advantage. [Ms A] does not seem to have been seeking the payment of money, an order to occupy a property or any other relief ancillary to the divorce. The applicant did not claim that she was seeking payment. However, when weighing the Divorce Judgment, I have adopted a cautious approach because it is not inconceivable [Ms A] may have succumbed to the temptation of embellishing her evidence, particularly if expecting it unlikely to be contested.Current fears The applicant claims as a Brahmin Hindu, he is "strictly" not allowed to marry a Christian or marry outside his caste.[29] He fears harm, having done so in Australia.[29] Protection visa application, p 41. When I inquired why [Ms A’s] uncle might still wish to harm the applicant, he stated it was because he left [Ms A] for [Ms C] and now has a child with her. He explained that [Ms C] belonged to a different religion and caste, noting that she is not part of the caste system and is originally from [Country 3]. The applicant also mentioned that his brother attended a wedding in India about a year and a half ago, where people remarked, "We can't wait for [the applicant] to come back." Subsequently, his brother moved overseas. The applicant claims that he was last threatened in June 2023.[30][30] Protection visa application, p 6. The applicant also claimed that the [Official 1 in] Punjab, [detail deleted], is a close acquaintance or associate of [Ms A’s] uncle, claiming that while ordinary people wait weeks for an appointment with the [Official 1], [Ms A’s] uncle can enter his office without an appointment. The applicant asserted that the [Official 1] would show deference to [Ms A’s] uncle, including by sitting on the feet of [Ms A’s] uncle and offering the chair at his desk to [Ms A’s] uncle. He could not explain how he knew this. Additionally, the applicant claimed that of the [number] attendees at his wedding, around [number] were police officers. He stated that [Ms A’s] uncle had threatened his family in India and asked if anyone other than members of [Ms A’s] family had threatened his family. The applicant responded that there had been no other threats, only from her uncle and occasionally her brother. I later reminded the applicant that he had previously claimed in his protection visa application that Indian authorities had made threats against his family's lives. The applicant said that had occurred.

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.[43] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[44] Circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.[43] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[44] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).Mandatory considerations As directed[45], I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the DFAT Country Information Report.[46][45] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.[46] 'DFAT Country Information Report India ', Department of Foreign Affairs and Trade, 29 September 2023, 20230929154911 ('2023 DFAT Report').Credibility In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The task of fact-finding may involve an assessment of an applicant’s credibility. Assessment of credibility is an inherently difficult task.[47] [47] See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited. The assessment of the credibility and reliability of evidence given by asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.[48] Caution is required when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country that they fled to avoid persecution.[49] Inconsistencies in an applicant’s account may or may not be significant.[50] I should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims.[51]COUNTRY INFORMATION[48] See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ).[49] See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).[50] ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).[51] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].Caste