Application to the Tribunal
30 On 6 January 2017, the appellant applied to the Tribunal for a review on the merits of the delegate's decision.
31 On 6 February 2017, the appellant provided by email to the Tribunal a number of documents. They consisted of a medical report (which is essentially unreadable), a series of photographs of a number of women with bruises and an elderly woman with a bandage wrapped around her hand. The appellant also supplied a document in English and Punjabi entitled "FIR", which I understand stands for First Incident Report. These pieces of evidence are said by the appellant to demonstrate that her brother had attacked her sister and mother. The FIR and medical reports are difficult to decipher but appear to go to the same topic.
32 On 3 April 2017, the Tribunal invited the appellant to attend a hearing before it. On 5 April 2017, the appellant responded to that invitation and provided a contact number and confirmed that there were no health problems or disabilities that would prevent her from taking part in the hearing. In that response, the appellant also identified a friend as a witness whom she wished to give evidence at the hearing.
33 On 28 April 2017, the appellant again emailed the Tribunal with a message with the subject line "translation". Attached to that email was a document with the words "Translation Punjabi to English" of a "Transfer Deed" for a "Mother in favour of Son and Daughters". The document relates to the transfer of property of a certain address on 27 June 2016 to the appellant and 3 other people (the appellant's siblings) in "equal three share[s]".
34 Also on 28 April 2017, the appellant sent an email to the Tribunal with the subject line "documents". Attached to that email is a number of documents entitled "Register Mutation" in Punjabi dated 7 July 2016 with a certified English translation, a document entitled "Legal Notice" dated 6 October 2016 served on SM Bricks regarding payment for a lease of land.
35 In a further email of 28 April 2017, the appellant provided an affidavit of her mother dated 28 April 2017 that deposed to, among other things, that her daughter is in a "[loving] marriage" with her now husband; that there are "several conflicts" in the family home concerning the appellant's marriage; and that the appellant's brother "threatened" the appellant and her husband with death should they return to India. The affidavit also refers to the property matters and says that as a result of those issues, the appellant's brother had physically abused his mother and other sister. The appellant's mother also deposes that the incident report was lodged with the police and it is authentic. The appellant's mother also refers an incident that she alleges occurred in Australia when she and her other daughter were visiting the appellant.
36 On 28 April 2017, the appellant sent an email to the Tribunal enclosing a psychological report from Bernice Chong, a Brisbane-based Psychologist. Ms Chong notes that, in her professional opinion, the appellant and her husband evidence a genuine and continuing relationship and that each commented that they "could not live without each other" and that they have a "deep physical, mental and emotional attachment". Ms Chong concluded that the appellant and her husband have a genuine and continuing relationship and their separation through the appellant's return to India would have a "significant negative impact on their mental, emotional and functional wellbeing".
37 In a further email dated 28 April 2017, the appellant provided a Statutory Declaration of the appellant (although unsigned and undated), and a "Witness Statement" on Queensland Police Service ("QPS") letterhead, also unsigned and undated. In the Statutory Declaration, the appellant says that her mother and sister were assaulted in "[N]ovember" (which I assume to mean November 2016), and did not inform her (the appellant) to avoid "stress[ing]" her and the appellant says that her mother and sister have been subject to two previous attacks. The email also attaches the QPS Witness Statement concerning an alleged offence that occurred on 17 July 2016. In the QPS statement, the appellant says that she was assaulted on 17 July 2016 by a person she says she knows. The appellant says that the alleged offender punched her in the face and neck 10 or 15 times. She says that the alleged offender (and it is not necessary to name the offender in these reasons) made comments which led the appellant to believe that this person would cause harm to her sister and mother when the offender returned to India.
38 On 16 May 2017, the Tribunal notified the appellant that the Tribunal had decided to affirm the decision under review. The Tribunal annexed a decision record with a statement of reasons explanatory of its decision.
39 In its decision the Tribunal summarised the appellant's claims as follows:
Claims
17. The applicant's claims, sourced from her protection visa application and evidence at interview as set out in the delegate's decision record provided to the Tribunal by the applicant, can be summarised as follows:
• The applicant will be killed by extremist Sikhs if she returns to India.
• The applicant was previously married to a Sikh man and she claims she divorced her first husband and has since married a Christian man.
• She claims that "inter religion marriages" are social taboo and many other people have been killed in the past and police or authorities didn't do anything about it.
• Even if she tried to move to another part of India, people would hunt her down and kill her, no one else in the community would ever dare marrying someone outside of their religion.
• The applicant claims it is easy for people to find her and kill her.
• The applicant stated at interview that she could not return to India because she married outside of her caste and also because her husband was from Sudanese background.
• She stated that her family approved of her marriage but her relatives and the society did not. She stated that she and her husband could be killed in India by relatives and/or the society.
• The applicant also stated at interview that her father passed away in March 2014 following which her mother divided the family property and the land equally amongst her, her sister and her brother. She stated that her brother was not happy that the property/land was divided equally. She stated that she feared that her brother would harm or kill her.
• The applicant stated that she completed a Bachelor of Arts in India and she also completed a Diploma in Aged Care in Australia.
• She stated that she is fluent in Punjabi and Hindi and also speaks good English.
• When asked how she found out about lodging PV, the applicant stated that when she was upset about her status in Australia, she discussed with her friends about how she could remain in Australia. She stated that she also did some online research. She stated that her friends suggested that she could lodge PV if she really did not want to go back to India because of the risks.
• The applicant stated that she has not experienced any harm in India.
40 The Tribunal was satisfied on the basis of information provided that the appellant is an Indian national.
41 Before the Tribunal, the appellant confirmed that her claims for protection relate to her marriage and a property dispute with her brother.
42 When asked by the Tribunal, the appellant confirmed that she feared returning to India because her relatives and society do not accept her marriage because it is "out of caste". The appellant said that her family accepted the marriage but in relation to her "relatives" they think she should marry a Sikh. The appellant clarified that by referring to "relatives" she was referring to her maternal aunt and uncle. The appellant gave evidence that she first developed her fear about returning because of her marriage in April 2012 when her mother told her that "[as] she was getting married 'out of caste' [she] should not come back to India". Upon questioning by the Tribunal, the appellant said her "relatives" had said that she should not return to India when asked if she had been threatened.
43 When asked by the Tribunal concerning what she meant by "caste" the appellant said that she was a Jat Sikh and that her husband was a Sudanese Christian. The Tribunal's reasons note that the appellant referred to her husband as a "black guy". The appellant said, in answer to a question about why she thought she and her husband would be targeted, that there were "a lot of cases" where Punjabi people married Hindus and were killed. The appellant said that her mother had told her that her parents had been told by "relatives" that they would kill her and her husband and, since the time of the marriage, they have also said that the appellant and her husband ought to get divorced, and, again, that they will kill her if she returns.
44 When asked by the Tribunal about threats to her safety, the appellant said that she had never received any threats from her relatives and had never been harmed by them. The Tribunal then asked the appellant why she had not told the delegate about threats made against her. She explained that she did mention, to the delegate, that she was afraid of her relatives and that threats made against her were relayed to her through her parents. The appellant said that she sometimes could not remember things because she is "under a lot of stress and she is depressed". She said she used to see a counsellor one to one and a half years ago. The Tribunal noted that the appellant would need to provide medical evidence to support her claim that she suffers from a condition that affects her memory.
45 The Tribunal then asked the appellant to address the question of why she did not include in her PV application claims of threats to kill her. The appellant said that she did not mention the conduct of her relatives because she had referred to "society" and thought that this included her relatives. The Tribunal also asked the appellant to explain why, if she was married in 2012 and her fear of returning to India hinged upon that date, it took her four years to apply for a PV. The Tribunal said that this delay could lead to doubts about the appellant's credibility. In answer to these concerns, the appellant said that she thought she would be able to stay in Australia and it was only when her other visa applications were declined that she knew that she could not go back to India.
46 The Tribunal also noted that, before a differently constituted Tribunal, the appellant had said in May 2015 that she had no problem returning to India. The Tribunal noted that this was inconsistent with the appellant's claims that she feared for her life should she be required to return to India. The appellant said that, in May 2015, she had thought her visa application would be accepted and that she would not have to return to India.
47 The Tribunal also noted that the appellant was contacted on a number of occasions by departmental compliance officers between June 2015 and December 2015 whilst her Ministerial intervention request was ongoing in order to alert her to the fact that she should be prepared for possible departure from Australia as it was "highly unlikely" the Minister wold intervene. However, the appellant did not raise any safety concerns with these officers. The appellant explained that she thought that her case would not be refused.
48 The Tribunal also referred to the appellant's description of her fear as a fear relating to religion rather than issues relating to "caste", and the Tribunal enquired whether she was also fearful of returning to India on the basis that she is Sikh and her husband is Christian. The appellant said she was concerned about this too and that, because of the colour of her husband's skin, she was fearful of harm to him as "people don't like black people".
49 The Tribunal then referred to DFAT Country Information for India dated 15 July 2015 from which the Member noted that India is officially a secular and multi-ethnic country and, whilst there is significant social pressure for individuals to marry within their own case and/or religion and that honour killings do occur, the Tribunal referred to five factors that would cause the Tribunal to conclude that the appellant does not face a real chance of serious harm or a real risk of significant harm on account of her marriage. These factors were:
• The applicant's family support the marriage.
• There does not appear to be any specific threats against the applicant.
• The applicant said she has held this fear since her marriage in 2012 but did not apply for a protection visa for almost 4 years.
• The applicant told the Tribunal in 2015 that she had no problem returning to India.
• The applicant had multiple opportunities to raise her concern about returning to India throughout her partner visa application process but did not do so.
50 In response, the appellant said that she thought that her partner visa application would not be refused and she thought that she would not be returned to India; that when she was told she would have to return to India, she did not have a problem with returning but would have to take her husband with her as he could not stay in Australia without her due to depression. The appellant emphasised that she cannot go back to India because if she does return, her husband will have to go with her and, in those circumstances, they both fear for their lives.
51 The Tribunal also asked the appellant why her husband was not attending the hearing. The appellant answered that she thought she had to come alone. The Tribunal said that it had difficulty accepting this answer having regard to the fact that she brought a friend with her (although, of course, the friend was going to be a witness).
52 The Tribunal then turned to the question of why the appellant feared returning to India having regard to the matters related to her brother and the property dispute. The appellant essentially said that her brother "wants everything" in his name and, as a result, her brother has fought with the appellant's sister and mother leading to the appellant's fear of harm should she return.
53 The Tribunal asked the appellant about the circumstances of the property dispute. In particular, the appellant explained that when her brother realised he would not get "everything", he attacked the appellant's mother and sister with a hockey stick. They lodged a police report. The appellant explained that her brother used to live in the house with her mother and sister but has since moved out of the house, although he continues to be threatening. The appellant said she had provided the Tribunal with all documents relating to the injuries to her mother and sister, the FIR, medical report and documentation concerning the division of property. The Tribunal noted that it had not received any document regarding the division of property. The appellant said she would provide documents relating to that issue by the day after the hearing.
54 The appellant informed the Tribunal that she was not sure when the property division occurred, but thought it "was around February or March 2016". The appellant said that "the issues" began in January 2016 and around 1 January to 2 January 2016, the appellant's brother "asked for someone to come over" to convince her mother not to divide the property but to give it all to him. The appellant said that arguments then continued over the subsequent months.
55 The appellant explained to the Tribunal that her brother moved out of the home in which her mother and sister lived after he attacked them and because of the FIR. The appellant said that her sister-in-law convinced him to move out of the house and although she did not know why he did so, the appellant thought it might have been so that his mother would convince him to stay by agreeing to his demands.
56 The Tribunal then explained that it had asked the appellant what she fears in relation to her brother. The appellant said that her brother wants her to give "him her share [of the property]" and that he "could attack her" (on the basis of his alleged conduct against her mother and sister). The appellant explained that it is "normal" in India for family members to be killed for property and that "sons kill their fathers". The appellant informed the Tribunal that she last spoke to her brother in January 2016, when he asked her for her share of the inherited property and she refused.
57 The Tribunal clarified with the appellant the following timeline with respect to the appellant's claims:
• In January 2016, she last spoke to her brother, he asked for the land and she said no.
• In February or March 2016, the house was divided and there was talk of dividing the land and her brother said it should not be divided that way but the land was actually divided later. The income they used to receive from the land should have gone to her mother but her brother kept it.
• The applicant was not sure when the land was actually divided as she had just received the paperwork. Before her interview with the department, she found out about the land but she did not receive the paperwork until after.
58 The appellant explained to the Tribunal that she was not sure whether she sent evidence to the Department about her property ownership after the delegate's decision to refuse her visa because she sent it to the Tribunal. The Tribunal put to the appellant that her account is "vague and confusing" and that the Tribunal "did not understand" why the appellant last spoke to her brother in January 2016 regarding the land division when the division did not occur until February or March 2016. In answer, the appellant said that the land was to be divided in four names and that her brother did not know their mother had already divided the house in three names.
59 The Tribunal also put to the appellant that her account of the property dispute provided to the Tribunal is inconsistent with that provided to the delegate. It is said to be inconsistent because the delegate's decision record notes that the appellant says that she became aware of the property division in July or August 2016, whereas she informed the Tribunal that she became aware of it in January 2016. The appellant explained that she struggled to remember dates. The Tribunal accepted that it can be difficult, but said it had concerns about her inability to remember "general timeframes" for "recent history".
60 The appellant explained to the Tribunal that she did not include details of the dispute in her PV application because she did not know that "it would get so out of control".
61 The Tribunal asked the appellant about the document relating to the property distribution, which the appellant had not provided. The appellant said that the document shows that the house was divided into three names and the land was distributed into four names. It was said to be a document issued through the courts and it is an official land register. The appellant was not able to say how much land she owns (although she said the total amount of land divided was six of seven "kille", which the Tribunal researched to be about six to seven acres). The appellant also could not say how much her share of the income generated from the land amounted to, but said that she was happy for the income to go to her mother.
62 The Tribunal raised, in respect of this document, further concerns about the inconsistencies in the appellant's account. The appellant said that it was the stress of her mother and sister being attacked and due to "all the stress and the depression" that meant she had difficulty remembering events. The Tribunal noted that it required medical evidence to that effect to assist in establishing whether that claim was credible.
63 The appellant said that after the FIR was lodged with police, the police told her mother and sister to "be alert". When the Tribunal referred to the FIR and said that it was hand written and not on any official police letterhead, the appellant said that the Tribunal could call the police station to confirm that she had provided all the evidence about the incident and that the document is not false or manufactured. The Tribunal referred to DFAT country information that states that the manufacture and use of fraudulent documents is prevalent in India. The Tribunal explained to the appellant that having regard to the Tribunal's concerns regarding her claim; the unofficial nature of the FIR document; and the country information considered by the Tribunal, the Tribunal would need to consider how much weight to attribute to the document.
64 The Tribunal said that it had "some concerns" about the plausibility of the appellant's brother moving out of the house as a way to change her mother's mind about the property distribution. The appellant said that her sister-in-law convinced her brother to move out because the police were coming to the house. The Tribunal noted that the police appeared to have acted quickly with respect to the matters the subject of the FIR. The Tribunal noted that it had to consider whether the appellant faces a real chance of serious harm of a real risk of significant harm, which is not satisfied by a remote chance.
65 The Tribunal then considered the evidence of a witness who accompanied the appellant to the hearing. The witness told the Tribunal that she had visited India on 22 October 2016 and that, during her stay, she visited the appellant's family and was present on the day that the appellant's brother attacked the appellant's mother and sister with a hockey stick. The witness said that she thought this attack occurred on 2 November or 3 November 2016 in the morning and the witness visited the house at around 3.30pm that afternoon.
66 The witness said that she was in India for five weeks and the appellant's brother attacked the appellant's mother and sister twice during that time. The second time was approximately one week prior to the witness leaving India. The appellant's sister told the witness about this attack and said that her brother had hit her "badly". The appellant's sister told the witness that she could not travel in order to avoid revealing her bruises. The witness said that the appellant's mother and sister then went to the police after the third attack.
67 The witness explained that she did not believe that the appellant wanted to remain in Australia "for the money" as she had property in India. The witness said that because the appellant's husband is Sudanese, the appellant could not leave her husband in Australia and, should he accompany her to India, he would experience racism.
68 Pursuant to s 424AA of the Act, the Tribunal put the following particulars to the appellant:
• Ms Dabra claimed that the applicant's mother and sister were first attacked by the applicant's brother around 2 or 3 November 2016 and there was a second attack a couple of weeks later.
• It would appear that both of these attacks occurred prior to the applicant's interview with the delegate on 24 November 2016 but the applicant did not mention either of these incidents to the delegate.
• The applicant did not raise either of these incidents with the Tribunal during the hearing despite having spoken at length about the claim and the applicant had also referred to the one incident she had discussed as being "unexpected".
• The FIR provided by the applicant which provides an account of the incident the applicant had referred to does not mention anything about two previous attacks.
69 The Tribunal said that it outlined the inconsistencies in the appellant's claims because the inconsistencies could cause the Tribunal to doubt the credibility of the claim that the appellant fears her brother due to a property dispute or that her sister and mother had been attacked by her brother.
70 The appellant did not seek additional time to respond and said that she was only made aware of the previous attacks on her sister and mother when the witness told the Tribunal. Otherwise, she said she was only aware of the third attack and that when the other attacks had been mentioned by the witness she had felt dizzy and an adjournment of the hearing was needed. The appellant said that the witness knew her family well which is why she knew about the other attacks.
71 The Tribunal explained that it may have difficulty accepting that the witness knew the appellant's family well when the appellant was unaware of two previous attacks. The appellant explained that "they" (presumably, the witness and the appellant's family) had not told her about the other assaults because they were worried she would be stressed.
72 The Tribunal, following the hearing, listened to the appellant's interview with the Department on 24 November 2016 and was satisfied that the delegate's account of the appellant's interview is accurate.
73 From paras 57-61 of the Tribunal's reasons, the Tribunal sets out its approach to assessing whether it can be satisfied about factual contentions made by the appellant. Those paras are set out below.
57. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
… care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
58. The Tribunal also accepts that "if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt" (The United Nationals High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
59. When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
60. The Tribunal must bear in mind that if it 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 (see MIMA v Rajalingam (1999) 93 FCR 220).
61. 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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
74 At paras 62 and 66 the Tribunal sets out its findings on credibility. Paragraph 62 is set out below and para 66 is set out at [75] of these reasons.
62. The Tribunal does not accept that the applicant is a witness of truth and does not accept her evidence about her problems in India, or her fear of returning to India as credible for the following reasons:
• There are significant differences between what the applicant claimed in writing, what she told the Department and what she told the Tribunal (including a differently constituted Tribunal) which causes the Tribunal to consider her evidence lacking in credibility and unreliable.
• The applicant's evidence was vague and confusing and at times, her evidence evolved throughout the course of the Tribunal hearing.
• In addition to the above concerns, the applicant's witness provided contradictory evidence regarding attacks on the applicant's family in India which contributes to the Tribunal's finding that the applicant is not genuine in her claims.
75 At paras 64-71 (introduced by para 63) the Tribunal sets out the detail of the considerations leading to the views expressed at para 62. As to the appellant's fear of returning to India due to factors related to her marriage, the Tribunal expressed the following considerations and conclusions at paras 64-66.
63. The detail of the Tribunal's findings and reasons are outlined below.
Fear of returning to India due to her marriage
64. While the Tribunal has some doubts about the genuineness of the applicant's marriage and whether they are still together, for the purposes of this review, it is prepared to accept that the applicant is married to an Australian citizen of Sudanese background.
65. The Tribunal acknowledges country information that outlines significant social pressure for individuals to marry within their own caste and/or religion and that "honour killings" do occur in India. However, the Tribunal also notes that inter-caste and inter-religious marriages are legal in India and it does not accept the applicant's claim that she (and her husband) will be killed or face a real chance of serious or significant harm if the applicant (or the couple) returns to India on the basis of this marriage as credible, for the following reasons:
• The applicant has consistently said that her family supports the marriage. The Tribunal finds it difficult to accept that the applicant or her husband face a real chance of harm in India when the applicant's immediate family accept the marriage. However, the Tribunal asked the applicant on a number of occasions who she feared in relation to her marriage and the applicant's response was vague, generalised and inconsistent referring to "relatives", and then a maternal aunt and uncle and society generally. The Tribunal also put to the applicant that in her protection visa application, she said she feared Sikh extremists and society but not relatives. The Tribunal does not accept he applicant's explanation for this inconsistency that when she said "society", she thought this included "relatives" and the Tribunal notes that the applicant never again mentioned Sikh extremists. The Tribunal is of the view that if the applicant had genuinely been threatened and/or held a genuine fear of named relatives, she would have said so in her protection visa application and she would have been able to articulate this with greater detail to the Tribunal. The Tribunal finds these accounts contradictory and lacking in credibility. In addition, the Tribunal is not satisfied that country information supports a conclusion that society generally will harm the applicant or her husband on account of their marriage and finds the risk of harm from society to be remote.
• It follows that the Tribunal finds the applicant's claim during the Tribunal hearing that she has been threatened by relatives to be lacking in credibility. The Tribunal is of the view that the applicant's evidence in this regard evolved throughout the Tribunal hearing. As outlined in the delegate's decision, when asked specifically by the department whether relatives (which the applicant had said were her mother's sisters and cousins) had caused the applicant any harm or threats, the applicant said no, because she had not spoken to them since she was married when she was aware that they did not accept it. In addition, the affidavit from the applicant's mother dated 28 April 2017, the day after the Tribunal hearing states that the applicant's brother threatened the applicant and her husband that if they come to India he will kill them which was not mentioned by the applicant. The Tribunal finds these significant inconsistencies lacking in credibility and the Tribunal places no weight on the affidavit of Parmjit Kaur dated 28 April 2017.
• The applicant was vague and confusing when referring to her fear based on her "out of caste" marriage. When the Tribunal asked the applicant what she meant by "out of caste", the applicant said that she was Jat Sikh and her husband was Sudanese Christian. At other times throughout the Tribunal hearing, the applicant referred to her husband as a "black guy" and when the Tribunal raised its concern regarding the applicant's reference to caste yet her description often related to their different religions, the applicant still referred to her husband being a "black guy" and that she is "Sikh Punjabi". The applicant's witness also referred to the applicant's husband as Sudanese and raised associated racism in India. When considered alongside the Tribunal's concern regarding the lack of any credible or plausible threat, the applicant's inability to articulate the reason for why there is a risk of harm to her and her husband (inter-caste, inter-religion and inter-racial marriage) the Tribunal finds that the overall claim is lacking in credibility.
• The applicant claimed to have held the fear of returning to India on the basis of her marriage since she was married in April 2012. However, the applicant told the Tribunal (differently constituted) in May 2015 that she had no problem returning to India. The applicant was also counselled by compliance officers at the department regarding her need to prepare to return to Indian between June-December 2015 and the applicant never raised any concern about returning to India. The Tribunal does not accept the applicant's explanation that she was being positive that she would be able to remain in Australia given her partner visa application. The Tribunal is of the view that if the applicant held genuine fear for her life or the life of her husband, and had done for more than three years, that she would have raised this with the Tribunal or the department when provided with multiple opportunities to do so.
• Similarly, the applicant did not apply for a protection visa for almost four years after she claims to have feared returning to India following her marriage in April 2012. If the applicant genuinely held the fears claimed, the Tribunal would have expected her to have lodged a protection visa application, or to have at least made enquiries of the department, shortly after her marriage and, as noted above, when provided with multiple opportunities to do so when discussing the possibility of returning to India with the department and the Tribunal.
66. When these factors are considered together, the Tribunal finds the applicant's claims in relation to her fear regarding her marriage to be completely lacking in credibility. Accordingly, the Tribunal finds that the applicant has not been threatened by any relatives, society or Sikh extremists regarding her marriage and neither she, nor her husband, face a real chance of serious harm or a real risk of significant harm in India on account of their inter-religious or inter-racial marriage.
76 As to the appellant's fear of returning to India due to tension and fears relating to the property dispute , the Tribunal expressed the following reasons and conclusions at paras 67-71:
Fear of returning to India due to family property dispute
67. The Tribunal does not accept the applicant's claim that she faces a real chance of serious or significant harm if she returns to India on the basis of a property dispute with her brother as credible, for the following reasons:
• The applicant's account of the issues relating to the property division and her brother were vague, confusing and inconsistent with the account the applicant provided to the delegate as set out in the delegate's decision record. Firstly, the Tribunal is not persuaded that the applicant and her brother were talking about her giving him her share of either or both the property or the land prior to any property division. It does not follow that the applicant and her brother spoke for the last time over her refusal to give him "her share" of something she did not have. Secondly, the applicant told the Tribunal that the house was divided in February or March but the land was not divided until sometime after although the applicant could not remember when which adds further weight to the Tribunal's finding that it is not plausible that the applicant and her brother spoke for the last time about the applicant's share of something she did not have and was not decided for some time following. This account is also inconsistent with the account provided to the delegate that records the applicant as being told by her mother about the property division in July or August 2016. While the Tribunal notes that it can sometime[s] be difficult for applicants to remember exact dates or details, in this case, the events occurred in the relatively recent past 12-18 months and the Tribunal was only discussing general timeframes with the applicant rather than specific dates. On this basis, the Tribunal expects that the applicant would be able to recall whether the property division occurred in February or March 2016 or July or August 2016. The Tribunal finds these two accounts contradictory and lacking in credibility.
• The applicant told the Tribunal that the issues with her brother began from January 2016 but the applicant did not include anything regarding the property dispute in her protection visa application which was not lodged until 16 March 2016. The Tribunal also notes that the applicant said that these kinds of disputes were "normal" in India and people kill family members for property and sons kill their fathers. On this basis, the Tribunal is not satisfied of the applicant's explanation for not raising these concerns in her protection visa application that she did not know the situation would get so out of control. The Tribunal is of the view that the two explanations are contradictory. If such issues are common place in India then the Tribunal would expect that the applicant would raise this concern in her protection visa application given that according to her evidence, there had been a couple of months of arguments prior to her protection visa application and she had not spoken with her brother in more than two months prior to lodgement of her protection visa application. The fact that the applicant did not mention this claim in her application contributes to the Tribunal's finding that the claim is lacking in credibility.
• The applicant was vague and evasive when asked to detail the document regarding property distribution (which the Tribunal had not received prior to the hearing) and she was unable to articulate or quantify her ownership in either the land or the property beyond a one-third or one-quarter share (which the Tribunal also notes is inconsistent with the delegate's decision record that states that the applicant said the property and land was distributed equally among her, her sister and her brother). The applicant was also unable to detail the value of the income derived from her share of the ownership of the land. Given the claims resulting from this property, land and income distribution, the Tribunal expects that the applicant would be able to provide the Tribunal with greater detail regarding the applicant's shareholding.
• The Tribunal notes that the applicant provided documents titled "Legal Notice", "Register Mutation" and "Transfer of Property" the day after the Tribunal hearing. However, these documents are dated 6 October, 7 July 2016 and 27 June 2016 respectively and the "Register Mutation" and "Transfer of Property" are dated with a certification stamp on 25 November 2016. The applicant was interviewed by the department on 24 November 2016 and was provided time following the hearing to produce these documents but they were not received by the department prior to decision and they do not appear on the department file following decision. Given the concerns outlined above in relation to the credibility of the applicant's claim and country information regarding document fraud in India, the Tribunal places no weight on these documents.
• The applicant told the Tribunal that her mother and sister were attacked by her brother and she provided photos, an FIR dated 31 December 2016 and medico legal reports as evidence of the attack on 31 December 2016. The applicant also told the Tribunal that this attack was "unexpected". However, the applicant's witness told the Tribunal that the applicant's mother and sister were attacked on two prior occasions when she had visited India and that both of these attacks were prior to the applicant's interview with the department in relation to her protection visa application in November 2016. The applicant did not tell the department or the Tribunal about either of these earlier attacks and the Tribunal does not accept the applicant's explanation for this inconsistency that she was unaware of these incidents and her mother, sister and her witness kept this information from her until the Tribunal hearing due to her claimed stress and/or depression. As set out below, in the absence of any medical evidence, the Tribunal is not satisfied that the applicant suffers from any medical condition.
• The applicant told the Tribunal that her brother had not threatened her but her mother and sister told her that she should not come back to India because her brother had attacked them and he could do the same to her. The Tribunal finds this account implausible for two reasons. Firstly, the applicant's mother and sister advised the applicant not to return to India on the basis that they were attacked on 31 December 2016 yet the applicant raised the fear for her life during her interview with the delegate on 24 November 2016, more than one month prior to the attack. Secondly, if the applicant's mother and sister provided this advice to the applicant following the attack on 31 December 2016, it does not make sense that they did not similarly advise the applicant following two earlier attacks in November. The Tribunal finds it implausible that the applicant's mother, sister and witness withheld information from her that could be important to consideration of her protection visa application when, according to the applicant, they were the ones advising her not to return to India.
• The Tribunal also notes that it would appear that the applicant's mother and sister did not mention any previous attacks to the police given there is no reference to two earlier attacks in the FIR document provided by the applicant which reported the 31 December 2016 attack. The FIR document is not on any official letterhead and in light of the Tribunal's concerns outlined above regarding the credibility of the claim that the applicant's mother and sister have been attacked as well as country information regarding the prevalence of document fraud, the Tribunal finds the FIR document dated 31 December 2016 to be fraudulent.
• In addition, the Tribunal also finds it implausible that the applicant, when given the opportunity to invite any witness she thought relevant to the Tribunal hearing, did not discuss with her witness what she intended on telling the Tribunal. On this basis, the Tribunal does not accept that the applicant's mother or sister have ever been attacked by the applicant's brother due to a property dispute. In addition to the Tribunal's finding that the FIR document is fraudulent and given the Tribunal does not accept that the applicant's mother and sister were attacked by the applicant's brother the Tribunal does not place any weight on the photos of the applicant's mother and sister (showing bruises) or the medico-legal report for Amritpal Kaur which the applicant claims relates to the attack because there is no corroborative evidence that either the photos or the [medico-legal] report relate to any attack.
68. Again, when these factors are considered together, the Tribunal finds the applicant's claims in relation to her fear regarding a property dispute with her brother to be completely lacking in credibility. Accordingly, the Tribunal is not satisfied that the applicant is a part-owner of any house or land in India and finds that the applicant has not been threatened by her brother or anyone else regarding any land or property. In addition, the Tribunal does not accept that the applicant's mother or sister have been attacked by the applicant's brother over any property dispute. It follows that the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm in India on account of any property dispute.
69. The Tribunal notes the applicant's claim that she suffers from stress and depression and she was unable to remember details in the relatively recent past due to stress. She also claimed that this is also the reason why her mother, sister and her witness did not tell her about two previous attacks by her brother on her mother and sister. Following the Tribunal hearing, the applicant provided a statement from Bernice Chong, Psychologist, dated 26 February 2016 relating to the nature of the applicant's relationship with her husband. The Tribunal notes that Ms Chong states that the applicant and her husband requested the "support letter with comments on the nature of their relationship" and that "both David and Amanpreet presented with current significant distress" which was attributed to Amanpreet's visa situation and their pending physical separation. The Tribunal also notes that Ms Chong stated that "David has also mentioned their facing difficulties from his family accepting Amanpreet due to differences in culture and religion" but Ms Chong makes no reference to any reciprocal concern for Amanpreet in relation to any non-acceptance of her husband.
70. While the Tribunal accepts that the applicant was distressed about her visa situation more than one year ago following her partner visa refusal, the applicant did not provide the Tribunal with any evidence to support her claim of depression and stress or that she suffers any medical condition that compromised her evidence to the department or the Tribunal. In addition, the applicant told the Tribunal that it is one or one and a half years since she saw a counsellor and she is not on any medication. The applicant also told the Tribunal at the start of the Tribunal hearing that she was not aware of anything that would impact her ability to give evidence and answer the Tribunal's questions. In her response to the Tribunal's invitation to a hearing dated 5 April 2017, the applicant also answered "no" to the question of whether there was any issue that may affect her ability [to] take part in the hearing (including health problem or disability). On this basis, the Tribunal does not accept that the applicant suffers from any condition that compromised her evidence to the Tribunal. As outlined above, the Tribunal does not accept that the applicant's mother, sister and witness did not tell the applicant information relating to attacks on her sister and mother due to the applicant's stress.
71. The Tribunal also notes the QPS witness statement dated 20 July 2016 provided by the applicant following the Tribunal hearing which the applicant relies on as further evidence of her stress. However, as the document is unsworn and unsigned, the Tribunal places no weight on this document.
[Emphasis added]
77 On the basis of those matters, the Tribunal concluded that in considering the appellant's individual circumstances on a cumulative basis, the appellant's fear of persecution is not well-founded as required by s 5J of the Act and therefore the appellant is not a refugee within the meaning of s 5H of the Act.
78 On the basis of a consideration of the appellant's individual circumstances and country information, the Tribunal found that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to India, there is a real risk that she will suffer significant harm.
79 The Tribunal was accordingly not satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. The Tribunal also considered the alternative criterion in s 36(2)(aa) and was also not satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
80 The Tribunal affirmed the decision under review.