They can leave Punjab and relocate to Delhi, the Court says
Melbourne: In a decision which was utterly disappointing for a Punjabi couple who, after going through various levels of Australian courts, have been refused Subclass 866 permanent protection visa by the Federal Court. This visa is granted to refugees or people who deserve protection meeting all requirements to engage Australia’s Protection Obligations. To put it simply, in layman’s terms, the couple were seeking a Refugee Visa. Being a refugee claim story, the names of the couple cannot be revealed.
Their story is intriguing as it involves “dob-ins” and “tip-offs” and an ignorant and “ill-advised” but a very novel basis of refugee claim which had little chance of success.
The Facts:
First the husband came to Australia on 7 August 2014. He left Australia voluntarily and went to India on 2 November 2014. He got married on 10 December 2014. Sponsored by the husband’s brother who is permanent resident in Australia, the couple arrived in Australia on 25 May 2015, on Sponsored Family 3 months’ visas.
Despite their visas expiring on 25 August 2015, they stayed on and became illegal or unlawful citizens in Australia. Perhaps acting on a tip-off, on 1 January 2016, they were taken into detention by authorities. On 5 January 2016, they applied for Bridging visas, claiming that they wished to return to India. The idea would have been – not to be subjected to the ‘Exclusion period” applied to people who overstay their visas.
On 7 January 2016, their applications for Bridging visas were refused.
Then they made applications for subclass 866 protection visas claiming, mainly the husband, harm and well-founded fear of persecution if they were to return to India. The application for Subclass 866 visa requires the applicant to meet the following conditions:
1. Have arrived in Australia legally on a valid visa and be immigration cleared on arrival
If you are an unauthorised maritime arrival, you can’t make a valid application for this visa.
- Be a refugee or engage Australia’s complementary protection criteria
Australia must not return people to their home country where there is a risk that the person may suffer harm because they engage Australia’s protection obligations. To engage in Australia’s protection obligations you need to be a refugee.
The meaning of a ‘refugee’ in the Migration Act 1958 (the Act) is a person in Australia who is:
- outside their country of nationality or former habitual residence (their home country) and
- owing to a ‘well-founded fear of persecution’, is unable or unwilling to return to their home country or to seek the protection of that country
The Act makes it clear that the “well-founded fear “should be based on fear of persecution which relates to all areas of their home country. And the persecution could be by reason of the claimant being of certain:
- race
- religion
- nationality
- membership of a particular social group or
- political opinion.
The Act also clarifies reason 4 above – being member of a particular social group as below:
Particular social group
There are two types of particular social groups described in the Act. One provides criteria to be met if a person claims to have a well-founded fear of persecution because they are a member of a particular social group that consists of their family. The other type provides that a person is to be treated as a member of a particular social group if:
- each member of the group shares a characteristic
- the person shares, or is perceived as sharing, the characteristic
- any of the following apply:
- the characteristic is innate or immutable (cannot be changed)
- the characteristic is so fundamental to a person’s identity or conscience, they should not be forced to renounce it (go against it); or
- the characteristic distinguishes the group from the rest of society; and
- the characteristic is not a fear of persecution.
Looking at the law (as above), one would wonder how could a newly married couple from Punjab, claim to be refugees, that too in 2016.
If their story, which they told the Department of Immigration, was genuine, the husband did have fear of personal harm but that – without some stretching by the lawyers – would not strictly meet the requirements of the Australian Protection Obligations as outlined above. The couple claimed as follows:
A friend of the husband married a woman from the same village in which the friend lived. The husband was involved in the wedding. That was, in the eyes of some, wrong. The relatives of the bride killed the groom and then decided to pursue him (the applicant husband), intending to harm him. He feared harm because of that circumstance. He based his case on that fear and claimed that he met the definition of refugee, or otherwise deserved protection under Australia’s Protection Obligations.
Dob-in emails:
Around the same time or in close proximity to the couple making their refugee claim applications, the Department received two “dob‑in” emails. The first dated 5 January 2016 claimed that the couple had a criminal history in India and which was why they were living illegally in Australia. The second email dated 22 January 2016 asserted that the couple had been using fake documents and a medical condition to “get more visa” and are “needed” by the Indian police in “Mudrer” case and that they are criminals and should be handed over to the Punjabi police. The email also mentioned their passport numbers.
The couple had not made any application on medical grounds. Australian government had not been contacted by India’s Punjab Police looking for the applicant husband. Thus first the Tribunal and then the Federal Court placed no weight on those emails.
It is very strange that someone who had access to their passport numbers, would send in “Dob-in” emails AFTER the subject couple had been removed by the authorities.
Were those emails engineered to add to their claim of fear and persecution?
For the Department and later confirmed by the Tribunal and Courts, the couple did not meet the legal definition of a refugee or the person deserving of Australia’s protection.
The Tribunal did not believe their story except the fact that there had been an “honour killing” in which a Gulab Singh was killed by his wife’s family. It also believed that Gulab Singh was the applicant husband’s friend. The Tribunal said it did not believe the applicant husband was involved in that “wrong” wedding nor was he facing any real harm if he were to return.
The Tribunal did not accept that the couple had to move away from their village in order to avoid harm. The Tribunal found that neither the husband nor the wife, were of any adverse interest to anybody in their home village or anybody else anywhere in India. Thus the Tribunal rejected their claim to be refugees with a well‑founded fear of persecution and as persons within the complementary protection provisions of the Act.
The Tribunal, as the law requires, had to examine if the fear of persecution extended to “all areas of the country” and took the view that even if there were fear of harm, it would not extend beyond their village or community. The Tribunal suggested that the couple should relocate or shift to Delhi and if they so did, there would be very little chance of them ever being found. Any claim that the bride’s family can locate the couple in Delhi and harm them is far-fetched.
Responding to the couple’s claim that the bride’s family would find them in Delhi and harm them, the Tribunal said:
As noted above, the Tribunal does not accept that proposition. The Tribunal finds that it would not be unreasonable for the applicants to relocate to Delhi — if they must — and that there is less than a real chance that they will be found in Delhi by anybody who may wish to inflict harm on them.
The couple then quickly organized two letters from India – one from his village Panchayat and the other from the mother of the deceased Gulab Singh both letters, purporting to suggest harm to the couple if they returned to India. The Tribunal remained unswayed and refused to overturn decision of the Department not to grant the couple the permanent protection visas.
In the Federal Court, the couple was ordered to pay legal costs of the Department’s lawyers.