1416651 (Refugee)

1416651 (Refugee) [2016] AATA 4422 (8 September 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1416651
COUNTRY OF REFERENCE:                  India
MEMBER:Rachel Westaway
DATE:8 September 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act.
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

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Statement made on 08 September 2016 at 1:25pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of India, applied for the visas [in] May 2014 and the delegate refused to grant the visas [in] September 2014.
The applicants appeared before the Tribunal on 5 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], the applicant’s de facto partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include dependent children.
Country of Reference
The Tribunal accepts on the evidence before it, namely copies of the applicants’ passports that they are nationals of India and it has assessed their claims against India as their country of nationality for the purposes of the Convention and as their returning country for the purposes of s. 36(2)(aa).
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant as an unmarried Dalit woman and mother without family support in a fractious relationship with a man of another caste who has purportedly been responsible for domestic violence against her and who is in detention in Australia, on a separate protection visa application will face serious or significant harm now or in the reasonably foreseeable future if she returns to India. For the following reasons, the Tribunal has decided to remit the matter.
Migration History
The applicant and her dependent child lodged an application for protection [in] May 2014. The Tribunal notes that the primary applicant has since had another child however that child is not the subject of this review.
The applicant arrived in Australia [in] September 2009 to study. She was the holder of a subclass 572 visa.
In 2011, the applicant departed Australia for approximately one month. The applicant confirmed at hearing that she was in India during this period.
[In] 2012 the applicant had [Child 1]. [Child 1] is also on this review application. [Child 1] has not made separate claims.
[In] April 2014 the applicant’s de facto partner applied for a protection visa. The applicant and their [Child 1] were on this application. Her de facto partner then withdrew the application and the applicant and her [Child 1] made a separate application themselves and her de facto partner made his own application.
The applicant was engaged in casual work from October 2009 until November 2011.
Applicant’s Background
The primary applicant was born in Punjab in India on [date] and is Hindu. She claims to be a member of the ethnic group [name], a scheduled caste, or Dalit as it is also known. She has resided in Australia since September 2009. She has completed senior secondary, a [tertiary course] in India. She has completed further studies at [an] Institute in Australia from September 2009 to November 2011.
Applicant’s Claims
The applicant claims that Dalits are considered the lowest castes and Indian culture supports marrying within one’s own caste.
The applicant developed a relationship with an Indian man in Australia. His name is [Mr A] and he claims to be a [Caste 1]. The applicant is in a de facto relationship with [Mr A]. They did not marry. The applicant had a child with her partner. The child is a dependent on this application.
Her partner is currently in detention and had his own review of his protection visa application affirmed on 21 January 2016. He appealed the decision and it was remitted back to the Administrative Appeals Tribunal and is currently before another Member.
The applicant claims that she never realised either sets of parents or extended family would not accept the relationship. The applicant stated in her application that she thought that with time their family would accept the relationship.
She claims her partner’s parents and political leaders of the Akali Party have expressed their unhappiness with the couple.
The applicant stated that she fears retribution in any part of India and indicated she would not be safe anywhere in India.
The applicant stated that in her home area of India, Punjab, the ruling party is the Akali Party made up predominantly of Jatt Sikhs. The applicant referred to unlawful killings and discrimination from the political administration towards lower castes and as such she claims to ‘foresee her own death’. She claims to fear significant harm from community leaders supported by the ruling party.
The applicant stated that dummy laws exist and she won’t be protected because the likely perpetrators are members of the ruling party.
The applicant provided a copy of the delegate’s decision for the application under review and she also supplied a copy of the Administrative Appeal Tribunal decision pertaining to her de facto partner [Mr A].
Delegate’s Decision
The application was refused by the delegate [in] September 2014. The delegate was not satisfied that the applicant faced a real chance of being persecuted or a real chance of being subjected to significant harm.
The applicant supplied a birth certificate stating she and her husband were married [in] January 2011. However the delegate noted this and the applicant stated that it was fake because her husband did not believe in marriage and this is how they can show people in India they are married. The delegate accepted this and the de facto relationship.
The delegate found that people in inter caste relationships are part of a social group. However the delegate found the claims that they will be killed because they are in an inter caste relationship to be vague and unsubstantiated.
The delegate found it highly unlikely that the applicant’s family would have allowed her to return to Australia after she told them about her love for a man from a different caste. The delegate described the applicant’s mother’s response to her admission of the relationship as “disinterested”.
The delegate placed weight on the delay in the applicant lodging her protection visa application.
The delegate was satisfied that India has effective state protection.
Administrative Appeals Tribunal – Oral evidence at hearing
The applicant supplied a submission to the Tribunal dated 28 January 2015. In this submission, the applicant provided the following details.
The primary applicant provided a caste certificate for her husband indicting he is a [Caste 1] and that she is belongs to the [name] community as well as a 14 page statutory declaration by the primary applicant. The applicant provided some clarifications regarding answers in her visa application and those recorded for the department interview.
The Tribunal has had regard to the submission and notes that it contains articles on honour killings, inter caste marriages and a paper from the Home Office in England, titled Country Information and Guidance. India: Women fearing gender-based harm/violence. Whist the Tribunal has read the contents of the papers, it notes that not all aspects of the articles are relevant to the claims of the applicant.
The applicant provided further information regarding her education, work experience and also the suspicious death of her husband’s [sibling]. The applicant also stated why she did not agree with the original decision makers finding of ‘disinterest by the applicant’s family” as well as an explanation of her marital status. The applicant provided further information on why she believed she could not safely relocate claiming that her husband’s father is politically connected and would find them.
The primary applicant claimed in her submission that she has to look after her children, she would face unemployment, she does not think she will get a job and if her partner either does not return to India with her or they separate, she will be a single woman from a lower caste with two children facing homelessness. She states that the government and community will not help her.
The applicant provided an explanation as to her delay in applying for a protection visa claiming she was unaware of such a visa.
The applicant stated that the country information the decision maker relied upon was not true and were simply laws on paper only and she could not seek state protection.
The applicant provided her own country information detailing the risk of honour killings in Punjab State due to inter caste relationships and that caste based discrimination was still prevalent and that violence still occurs and that it is increasing.
The applicant further stated that as a Dalit woman she is afraid of violence against her and the state is unwilling to provide her with protection. The applicant stated that payments for inter caste marriage do not occur in her husband’s [area].
The applicant provided details of her health conditions and requests the opportunity to break during the hearing as required. The Tribunal ensured that applicant was afforded these opportunities.
The applicant provided a copy of the Administrative Appeal Tribunal decision made on her husband’s protection visa review dated 21 January 2016.
The Tribunal conducted a hearing on 5 February 2016. The primary [applicant] was in attendance and gave evidence. The secondary applicant is a dependent on the visa. [Child 1] is a minor and was in childcare. The primary applicant’s husband was a witness and provided evidence by phone.
She stated she came to Australia on a student visa to study [a course]. She did not complete her studies because she could not pay the fees.
She was born in Punjab India. She left there in 2009. The applicant returned in 2011. She was there for [number] days.
The applicant’s father lives [overseas], Mother in India and [sibling] in India and she has another [sibling] in [Country 1] and a [sibling] in India and another in [Country 2]. All are married.
[Some siblings] have children. Indian and same caste. The applicant stated that all family members have married within their caste except for [Sibling 1 who] is married to a [person] from [another] caste. [Sibling 1] lives in [Country 2].
She claims there was also a lot of trouble. Firstly they told [Sibling 1] that [(the applicant)] is in a relationship outside of their caste and they have disowned her and so they would disown [Sibling 1] too.
The applicant stated that her [Sibling 1] returned to India to marry [in] 2014. [The spouse] remained in India and lives with [the] parents. The applicant stated that her parents and her [Sibling 1’s parents-in-law] had agreed to that marriage which was different to hers where neither sets of parents approved.
The applicant’s mother is a home maker and father is in [work] [overseas]. He looks after the financial needs of the family.
The applicant stated her partner’s mother is a house wife and father is a [occupation]. They own their own [land]. [Details deleted]. The applicant’s family and her partner’s family have never been to Australia.
The applicant receives no financial support from her parents and stated that the Australian government helps her and her husband.

The applicant contacted her parents when [Child 2] was born. She stated that no pictures have been exchanged. Her Mother says that family don’t accept her [Child 1].and therefore how can they accept her [Child 2].
She did not tell her mother she was pregnant. She has spoken to her once or twice in twelve months. She doesn’t speak to her [siblings]. She claims they have also stopped speaking to [Sibling 1] who is in the relationship with the [person] from [another] caste. The rest of the family don’t speak to [Sibling 1].
The applicant has two children. The applicant’s [Child 2] was born on [date]. The applicant stated her baby is healthy. The doctor stated that the baby may have [medical condition] but when [Child 2] was born [Child 2] was healthy.
The applicant met her partner in [Australia]. The applicant’s partner arrived in 2008 in Australia and he has never returned. She didn’t know he was a different caste when they first entered into the relationship. She stated that she told her mother that she liked a [person from another caste] when she was in India. She did not say that she was living with him or that she was pregnant.
They met in 2009 and entered into the de facto relationship within 2 weeks of meeting. She told her parents when she came back from India and they came to know she was pregnant once she had returned to Australia. She told them over the phone. They were very angry.
She claims her partner told his parents that they were in a relationship before she went to India but he never said her name. They said they didn’t want him marrying a woman from a lower caste. They said we will not accept the relationship and if you continue you will lose your property inheritance. When she returned from India they all came to know she was pregnant and they disowned her partner and he lost his property inheritance. This was advertised in the newspaper.
The applicant stated that it was about 4-5 months after she returned to Australia from her visit to India when someone who lives in [a town] told her father-in-law she was pregnant.
Her partner’s father went to the applicant’s parent’s home and threw the newspaper ad regarding the disowning of his son into their property and then rang the applicant’s mother and said they were responsible for their daughter and they said she would not be accepted and she should not come to their house. This was the first the applicant’s family knew of the pregnancy.
Her parents called the applicant – first the mother and then [sibling] from [Country 1] and said “how dare you, he is not from the same caste”.
She said they said they will disown her if she does not get an abortion and return to India.
The Tribunal put to the applicant that the years have progressed and she has another child and her in-laws know where her parents live and have never attempted to harm them. The applicant confirmed this. She stated that her partner’s father always tells his son to leave her and children and return to India and he can marry and get a dowry.
The Tribunal put to the applicant that why would he be talking to his father if his father had disowned him and placed an ad in the paper? The applicant stated that this is because he is [a] son and other siblings are [relationship].
The applicant stated that her partner and his father speak rarely but her partner wants his father to accept the relationship. The father has said clearly he is not ready to accept the applicant or their children. He said that if anything happens to the applicant or her children he is not responsible.
The Tribunal asked for clarification and asked the applicant what she meant by this – she stated that her partner could only take her to his father’s property as they would have nowhere to go and if the community doesn’t accept them there could be an honour killing.
The Tribunal asked the applicant what makes her think that her husband’s family would engage in an honour killing.
She stated that in 2014 her partner came to know how his [sibling] came to die. The applicant stated that [the sibling] had a relationship with someone from another caste and killed his [sibling]. [The sibling] was [age] years old. That is why they are scared as he could do anything to her and her babies.
The Tribunal put to the applicant that he knows where her parents live and he has never done anything to them. She stated that they are looking for an opportunity to separate her from her partner and they could do anything.
The Tribunal put to the applicant that the man in [a town] that knows her partner’s family has never approached the applicant, threatened her or passed on threats. The applicant stated that she doesn’t see him and he doesn’t know where they are staying.
The applicant stated that if she goes back to her own family home she said her mother is scared that the applicant’s father will kick her mother out of the house.
She said that she called her partner’s father when her partner was put in detention and she said she wants to come back to India. He said that the son can come back but he said he will not accept her or the child.
He said if you come back with him he will not keep her in the house and that he or the community will kill them.
Country Information was put to the applicant and she was asked why she thinks she faces a real risk of harm. She stated that her father in law has political connections and travels and cares more about respect and less about them and her son.
The Tribunal stated that whilst considering the applicant’s evidence provided at hearing and country information supplied by the applicant in her submission, the Tribunal has its own country information which it relies on. The Tribunal has taken into consideration the country information listed below of which some elements of this were put to the applicant for comment.
COUNTRY INFORMATION
Whilst the Tribunal accepts that the caste system in India is an important and fundamental element of Indian society and economic and social discrimination exists, the Australian Department of Foreign Affairs and Trade (DFAT)[1] Article 15 of the Indian Constitution forbids discrimination on the grounds of caste[2] and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989[3] outlaws a range of atrocities against persons on the schedule of disadvantaged castes and tribes and includes enhanced penalties for serious crimes committed against members of schedules castes.
[1] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report, India, 15 July 2015.
[2] Constitution of India, 1950, Part lII, Article 15 (1,2).
[3] The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989.
The Tribunal has had regard to the same DFAT Country Report noting arranged marriages make up the majority of marriages in India and parents feel it is a right to choose who their children marry and see it as a right and duty. DFAT advises that there is significant social pressure for individuals to marry within their own caste and/or religion and cites an India Human Development Survey ‘November 2014’ stating five per cent of Indian women marry outside of their caste. According to a 2011 paper[4], 10.1 per cent of Sikh women interviewed for a 2005 Indian Human Development Survey indicated that they had married outside their caste, and Punjab has the highest rate of inter-caste marriage in all of India (12 per cent), more than twice the national average. This paper also found that more woman marry outside of their caste in urban areas and amongst those with higher education or economic status.
[4] Singh, D & Goli S 2011, ‘Exploring the concept of Mixed Marriages in Indian and Selected States: First Time Evidences from Large Scale Survey’, Population Association of America 2011 Annual Meeting Program, Princeton University website, >
The report estimates approximately 1,000 reported honour killings each year in India and these are more prevalent in villages and small towns in north India.
It advises that India is officially a secular and multi-ethnic country, and as such inter-faith and inter-caste marriages are legal. The Special Marriage Act 1954 is an alternative to various religious personal laws and is available to all citizens who choose to marry outside their faith and the religion of the parties to an intended marriage is immaterial under the Act. Inter-caste marriages are recognised and protected under the Arya Marriage Validation Act 1937[5].
[5] Law Commission of India 2008, Laws on Registration of Marriage and Divorce – A Proposal for Consolidation and Reform, p. 11 , of india.nic.in/reports/report211.pdf>
The Tribunal put to the applicant, (although it notes the applicant has stated in her submission that this does not occur in Punjab) a 2006 report from the Immigration and Refugee Board (IRB) of Canada[6] which confirms the Indian government offers financial incentives to promote inter-caste marriage where at least one person is a member of a scheduled caste.
[6] Immigration and Refugee Board of Canada 2006, India: The situation of couples in inter-caste and inter-religious marriages, including societal attitudes, treatment by government authorities and the situation of children resulting from such marriages (2000-2005), IND100661.EX, 9 January.
The Tribunal put to the applicant that she is an educated bi-lingual woman and her partner is bi-lingual and they could relocate to a larger city in India. DFAT advice from May 2011[7] indicates that many inter-faith couples from rural areas relocate to the more liberal cities for protection. The Tribunal notes that there is support for couples as press reports[8] indicate that a Delhi-based volunteer group ‘Love Commandos’ help inter-caste couples who fear retribution from family members or village councils.
[7] Department of Foreign Affairs and Trade 2011, DFAT Report No. 1285 – India: RRT Information Request: IND38682, 30 May.
[8] ‘Honour killings: Saved from India’s caste system by the Love Commandos’ 2010, The Observer, 10 October.
The 2012 research report from the IRB[9] submitted by the applicant indicates that while legally there is no bar to inter-caste marriages and the state makes provision for them, marriages continue to be arranged largely within caste and sub-caste. Societal attitudes vary depending on region and class.
[9] Research Directorate, Immigration and Refugee Board of Canada 2012, India: Situation of inter-caste couples, particularly those involving Dalits, from both urban and rural locations, including societal attitudes, treatment by government authorities and the treatment of their children (2005-April 2012), IND104061.E, 11 May.
The report also comments on the prevalence of honour killings, reporting that at least 900 honour killings, in which people are killed for marrying outside their caste or religion, or within their kinship group, occur each year in Haryana, Punjab and Uttar Pradesh states. However, the report cites the professor of sociology at Jawaharal Nehru University as expressing a personal opinion in April 2012 that, although inter-caste couples initially face resistance from their families, particularly the woman’s family, most cases of inter-caste marriage are eventually accepted. The professor is also reported to have commented that he is not aware of cases where children born to inter-caste couples faced serious problems.
The report cites the Executive Director of Navsarjan (a Dalit human rights organisation) as commenting that Dalit brides marrying higher caste men in inter-caste marriages are mostly not accepted by their husband’s family and are later deserted by their husbands, making their lives pitiable as they are not accepted by their parents and relatives. The Executive Director of Navsarjan commented that the caste identity of the children relates to that of the father and the child faces less problems if it is the mother who is Dalit.
The report refers to the Haryana government operating protection homes for runaway couples and reporting that police reports were filed against 113 people in 21 cases in relation to threats against and mistreatment of couples. It also reports on the Punjab and Haryana High Court ordering police not to register cases of abduction against couples who marry against their parent’s wishes. The report makes reference to the work of the Love Commandos and also refers to support services available in the city of Dehradun (the capital city of the northern Indian state of Uttarakhand (formerly Uttaranchal)) which include shelter, medical facilities, legal facilities, implementation of court orders and emotional back-up to the couple. It notes a case referred to the police to ensure a couple was provided with protection.
In relation to the situation in rural areas, the IRB report cites a Human Rights Watch report of 18 July 2010 which commented that khap panchayats (unofficial village councils) in the northern states of Haryana, Punjab and Uttar Pradesh, issue edicts forbidding inter-caste marriage and media sources report that these khaps order honour crimes, including those motivated by inter-caste marriages (The Guardian 24 June 2010; BBC 16 Nov. 2011) and often ‘unleash violence’ on those who do not follow their orders (The Times of India 3 June 2010).
The IRB report comments that the Navsarjan Executive Director noted that mobility is restricted in rural areas and that the chance of inter-caste couples "being identified and targeted is much higher than in the urban areas" (20 Apr. 2012).
Country Information on Single and/or unwed mothers and illegitimate children

100. Country information indicates that single women and divorced women face significant social stigma, abuse and violence. They are also at risk of so-called honour killings[i].
101. May 2015 Immigration and Refugee Board of Canada refers to quote in a February 2015 article by Orissa Diary, a website about Odisha state, who ‘reports that single women are marginalized in Indian society and that there are existing social stratifications designed to “take away single women from the mainstream”’. This is supported in the same report by an associate professor from Carleton University, who noted that there was ‘a stigma regarding single women’ and ‘the media has reported on this in major cities including Mumbai, Delhi, Chennai and Kolkata’.
102. According to the 2016 article published in the Sanglap: Journal of Literary and Cultural Inquiry, the July 2015 the situation of working class mothers is decidedly much worse. Working-class single mothers can neither afford elite education for their children nor do they have reliable childcare support. These single mothers may have to leave behind their children unsupervised in the house for long hours’.
103. May 2015 Immigration and Refugee Board of Canada indicate that only widows, or widows and divorcees, were recognised as single women for access to government programmes. The sources included a 2014 Press Trust of India article, which ‘quotes a member of the National Forum for Single Women’s Rights as stating that “‘or the government, only widowed women qualify as single women leaving out the vast number of separated, abandoned, single mothers or older women who never married [from access to government programs]”
104. A January 2013 report on separated and divorced women in India by Kirti Singh, a lawyer working and practising on women’s issues in Delhi, indicates that there is no recognition of the other categories of single women. Practically, no government schemes exist to support these women. Yet, separated/divorced women and households headed by women tend to be among the poorest of the poor and perpetuate the cycle of poverty in the next generation. Our survey has also shown that in-laws rarely support the abandoned family. The woman’s natal family may take her in but usually treat her as an outsider and a burden.
105. Health is a major neglected area for all these categories of single women, besides access to property rights and violence.
106. The most recent US Department of State report on trafficking in persons in India does not make reference to illegitimate children of single mothers, but does indicate that ‘India is a source, destination, and transit country for men, women, and children subjected to forced labor and sex trafficking’ and that ‘those from the most disadvantaged social strata – lowest caste Dalits, members of tribal communities, religious minorities, and women and girls from excluded groups – are most vulnerable’. India’s largest trafficking problem is forced labour, with men, women, and children in debt bondage.
107. July 2015 DFAT country information report on India refers to single women or women with children facing difficulties relocating within India. The report notes that ‘Single women, women with children or victims of familial crime may find relocating within India difficult due to the need to provide details of their husband’s or father’s name in order to access government services and accommodation’.
108. An April 2015 UK Home Office country information and guidance paper on women fearing gender-based harm/violence includes information on whether women are able to internally relocate within India to escape harm.32 The paper notes that ‘Internal relocation to avoid risk of gender based persecution will be viable in many cases but internal relocation may, in some cases, be unduly harsh for women with dependent children, if they are unable to access accommodation, have no support networks and have no real prospect of securing access to a livelihood’.
109. India: Right To Maintenance Under Section 125 Of Criminal Procedure Code, 1973, Article by Sumeet Anand and Rahul Bansal, 26 January 2015 summarised a Supreme Court case which they described as a”path breaking judgment Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha” which determined that "Where partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock case”. In essence, this case determined that a de facto relationship would be considered as a valid marriage in the context of maintenance, and as such a woman will be entitled to maintenance if she is deserted. “The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations”.
The Applicant’s response to country information and further evidence
110. The country information was put to the applicant at hearing whereby she stated that “when they can kill their own [child] then they can kill anyone”. She said that her family cannot accept her in their house.
111. She said that the Punjab government is made up of a Sikh community and protection simply doesn’t happen. She said that even in other states such as Haryana and Punjab there are honour killings. She claims that right from the beginning [they] don’t like her community and it has been going for a long time. She stated it is entrenched and her family don’t accept their [grandchild]. She said it is laws on paper only and they don’t follow the law.
112. Police corruption is high in Punjab. She said that she doesn’t trust the police to protect her or her partner and anything could happen.
113. She said she has nowhere to live.
114. The Tribunal asked the applicant how she knew her father-in-law killed his [child]. She said that her partner said his father was violent and would beat him and the [other] children don’t love him. They are kept as servants in the house.
115. She said that he said that her partner was the same as his [sibling] and her partner contacted his [relative] and she said the [relative] told him that because of a relationship with someone from another caste the father killed [his child]. [Ages of parties deleted].
116. The Tribunal asked if there is any evidence to show [the child] was murdered. She said that a post mortem was not done because [the child] had to be buried by the evening. Due to his political connections no one tried to investigate. They said it was a [medical condition].

117. She claims that her husband’s father is politically connected with MPs in the district such as [an official] of Punjab, [name].
118. The Tribunal put to the applicant the question of relocation and asked the applicant why she could not relocate to another city in India. She stated that she has no support from either sets of parents and she claims she left India 7 years ago. She stated how she can work she has 7 year old work experience. She said that in India they do not provide childcare or Centrelink benefits and she won’t have a job and she worries for her children’s health and safety. She said that in Australia, community help exists but it doesn’t India.
119. The Tribunal asked why she would find it difficult to obtain employment in India? The Tribunal stated that whilst it accepts standard of living is lower there is childcare. The applicant stated that women cannot work on farms like in Australia and have childcare. She stated that she has no savings. She said that her partner has no savings in Australia as well.
120. The Tribunal invited the applicant to consider if she relocated whether her partner’s father could find her.
121. She said that there is such a high unemployment rate in India and people commit suicide. She said her father-in-law is in [occupation] and he travels to other states. He could find her.
122. The Tribunal put more internal relocation information to the applicant and asked her why her partner could not support her. She said he wasn’t very educated [and] cannot feed her.
123. She said that Punjabis live everywhere and honour killings occur.
124. The applicant stated that they are not married and they have put a fake date on the children’s birth certificate. Because she is not married and she has children they will want to kill her. She said that both families do not realise they are not married. She said that she has no marriage certificate. The Tribunal asked the applicant why she didn’t get married and she said that her husband doesn’t believe in it although she would like to.
125. He said that after marriage there are divorces but she stated that he said he was committed to her.
126. The Tribunal asked the applicant if she would like to add anything further and she said no.
Evidence from Witness, [Mr A]
127. The applicant then took evidence from [Mr A], the applicant’s de facto partner via telephone.
128. He confirmed that he met the applicant in 2009 in [Australia] and then their relationship commenced within 2-3 weeks. He told his family in 2011 about the relationship. She told her parents also in 2011 but she did not provide any great detail.
129. He confirmed that they were not happy and wanted her married. She was pregnant and he was worried she would be killed or marries someone else. He said that the pregnancy was a surprise. He stated though that he does not want to get married and has no intention of marrying.
130. The applicant stated that his family want other things for him. They want him to be married over there and be a political person or [occupation]. They want him in the political system. However [Mr A] said that he doesn’t want dowries or that way of living. He believes in two souls meeting together. It’s just his parents want it.
131. He is worried if he isn’t at home in India with the applicant she will be killed. He is also worried about his children’s safety. He stated that he has a [relative] and she will not support this.
132. [Mr A] said his father sent him a letter with a newspaper cutting not accepting the relationship and he thought it might be a gift from the father but it wasn’t. In 2014 he spoke to his father when he was put in detention and he said you can come home but not with his partner and children.
133. The applicant has no work experience. [Details of work experience deleted]. He claims that he has only completed a two to three month course and there are people in India with MBA who are unemployed. He said he has no degree or diploma. He could not get a job. He said suicide rates are high because of the unemployment. He said bribery is required to get a job.
134. He said his father wants him to marry someone else. He said that his partner, the applicant is the cause a stain on the family.
135. He confirmed that his father killed his [sibling] because he did not approve of [the] relationship but he is unable to provide a death certificate.
136. The witness explained that he was told recently by his [relative] that his [sibling] was killed by his father and they hid the body. He wasn’t even able to hug his [sibling] or prepare [the] body.
137. He said that a call was made to a member of the legislative assembly to report it and they said it was a personal matter and the police did not get involved and his family were told don’t get involved.
138. He claims they have no political influence. It is about status and respect of your family.
139. He confirmed that his partner’s family also received a copy of the newspaper cutting. He stated that his father knows where they live and he is not sure if they contacted them by phone. He simply wants nothing to do with them. He confirmed that his father has not targeted her family in spite of the fact that they know where they all live.
Domestic violence within the relationship
140. The Tribunal is in receipt of the applicant’s partner’s decision record from the Administrative Appeals Tribunal provided by the applicant. Of interest to the Tribunal is that the applicant has been a victim of domestic violence. The Tribunal has considered the following details provided in the decision record for case number [deleted], paragraph 30 and 32.
141. The Tribunal also asked [Ms B] about an Intervention Order taken out on her behalf against the applicant. She indicated that this happened because the applicant was in stress as his father used to upset him a lot telling him to leave [Ms B] so that they could marry him in his own caste and get dowry. On one occasion their [child] became lost in the market and she called the applicant to help her look for him. When they found their [child] and returned home they argued, he started to harm her physically, [details deleted]. She called the police and an Intervention Order was put in place requiring that the applicant not live with them and to have no contact with them. At a subsequent court hearing the order was amended to state that the applicant can’t damage property or commit any family violence. [Ms B] commented that she understood that the applicant was angry because he was ‘leaving the drugs’ (she explained that he was trying to give up [substance]).
142. The applicant commented that his mental health was really bad at the moment and that he was seeing a psychologist. He said that his wife is [number] week’s pregnant and the baby has [medical condition]. He wants a visa so he can help his wife who lacks community support. He feels guilty that he cannot assist her and regrets his [other behaviour] and acts that resulted from stress caused by his father.
143. Whilst the Tribunal notes that the applicant did not refer specifically to domestic violence concerns within the hearing, the Tribunal received from the applicant her partner’s decision record from the AAT and accepts that domestic violence has occurred within the relationship and the fact that the applicant has sought help in Australia with police support and an intervention order. Given this, the Tribunal has referred to independent country information regarding relationships in India and domestic violence.
144. The Tribunal has also considered [Mr A]’s health and substance abuse details in the context of his ability to support the applicant if she was to return to India with or without him. The following is taken from his decision record supplied by the applicant. It states “The Tribunal has also considered the applicant’s comments regarding his mental health in considering the reasonableness of the applicant relocating within India. At the hearing the applicant indicated that he had seen a psychologist and the Tribunal gave him two weeks from the date of the hearing to provide any documents he wished to provide from his psychologist. The applicant subsequently provided a letter dated [October] 2014 from Clinical Psychologist, [name], to referring doctor Dr [name], indicating that he has made a provisional diagnosis in relation to the applicant of ‘harmful use of [substance]’ and ‘[medical condition]’, reporting scores recorded on the self-administered Depression, Anxiety and Stress Scale (DASS) instrument, and indicating that the applicant may benefit from drug and alcohol counselling and motivation enhancement and Cognitive Behaviour Therapy (CBT) strategies. The letter indicates that the applicant started using [substance] and alcohol since 2011, smokes regularly due to craving and wants to learn strategies to deal with his [substance] use.
Country Information on Domestic Violence and support for women
145. In an article titled “Protection of Women against Domestic Violence’, 31 October 2015, by Flavia Agnes and Audrey D'Mello, they stated that changes to laws regarding the definition of “domestic violence” would be made broader to include all types of family relationships because the invalidity of a marriage had previously been used as defence by men to deny maintenance to this vulnerable section of women.
146. Many factors make it difficult for women to seek help in India. Foremost among them is that women are socialised early on to submit to unfair treatment and even violence. "It's ingrained with them from the beginning that they have to 'adjust' to whatever their lot is, because marriage is a must, marriage is for life, that your husband is akin to a god to you, and that without him you're nothing," says Flavia Agnes, a lawyer whose experience of domestic violence inspired her to fight for women's rights.
147. The National Family Health Survey-III (NFHS-III), published in 2005, found that while 37.2 per cent of women who had ever been married had faced spousal abuse, only 2 per cent sought help from the police. According to the same survey, about half of these women ended up in hospital at some point owing to the violence they experienced.
148. In a recent article available to the Tribunal, "Halting the blow of domestic violence in India", Aljazeera, 05 August 2016, it stated that recent research showed that a higher proportion of women, compared with men, find wife-beating justifiable under some circumstances, according to the NHFS-III. Beatings are considered acceptable by more than 50 per cent of both sexes. The extenuating circumstances include failing at one's domestic duties, such as not cooking food properly, neglecting one's household and children, and disrespecting one's in-laws.
149. Defence Language Institute paper titled ‘Hindi Cultural Orientation’, March 2015 made the following observations: “Though a wife usually lives with her husband’s relatives, she continues to keep the bond with her birth family. Children live at home until they are married. If the husband dies, the widow usually stays with her in-laws unless or until she remarries. Gender roles in India are fairly specific and well understood. Customarily, a woman is expected to be submissive and to devote herself to keeping her husband happy. Men are expected to take care of the family financially. Once married, women take care of family needs including cooking, general household tasks, and children. Women have historically been precluded from taking part in business or working outside the home. Women also suffer from domestic violence. Data show that as many as 40% of women have experienced violence from an intimate partner. As much as 38% of all men admit to abusing their wives. Domestic violence is on the rise in India. Marriage is regarded as a necessity in Indian life and is seen as a relationship between families rather than a relationship between individuals. Most marriages in the northern regions of the country are still arranged within caste divisions”.
FINDINGS AND REASONS
150. The issues in this case are whether there is a real chance that, if the applicant returns to India, she will face serious harm now or in the reasonably foreseeable future.
151. For the following cumulative reasons, the Tribunal has concluded that the decision under review should be remitted.
152. The Tribunal finds that the applicant is a Hindu woman from India and a member of the [name] caste, a grouping that falls within the Dalit or scheduled castes grouping of disadvantaged castes. The Tribunal is in receipt of a scheduled caste certificate for the applicant which supports this claim. The Tribunal accepts that the applicant’s de fact partner is a member of [Caste 1] based on the information provided by the applicant in her submission to the Tribunal.
153. The Tribunal accepts that the applicant and [Mr A] are in a de facto relationship but have no intention to marry on the bases of the oral evidence provided by [Mr A] and the applicant at hearing.
154. The Tribunal has relied on country information regarding the makeup of Indian society and castes as well as oral evidence provided at hearing and finds that the applicant’s family and her partner’s family do not accept the relationship because the applicant and [Mr A] are from different castes.
155. The Tribunal finds that the applicant will receive no support of any kind from her own family or her partner’s family if she was to return to India because she has gone against their wishes in choosing a partner of her choice and from a different caste and having children. Country Research and oral evidence from the applicant supports this.
156. The Tribunal finds that [name deleted] is the [child] of the applicant and her de facto partner [Mr A] on the basis of the information before the Tribunal. Medical evidence has been supplied regarding the pregnancy of the second child however this child is not on the application.
157. The Tribunal accepts that [Mr A] is in detention and as such he is not currently residing with the applicant.
158. The Tribunal finds that the applicant’s partner’s family have threatened him with no heritance or financial support unless he ends the relationship with the applicant.
159. The Tribunal finds that the relationship between [Mr A] and his father was not good prior to coming to Australia. Oral evidence from the applicant and her partner have provided context to this.
160. The Tribunal has considered the applicant’s claim that her partner’s father is so violent and unpredictable and politically connected that he murdered his own [child] because [the child] had a relationship with a [certain person] and [got] away with it. The Tribunal notes that the applicants have confirmed they have no evidence to support this claim and the Tribunal is unable to verifying it. The Tribunal does not accept that the father’s [relative] would know about this and tell [Mr A] or that he is so powerful and politically connected that he managed to be immune to an investigation of a murder. The Tribunal does not accept that the applicant’s partner’s father killed his [child].
161. The Tribunal does not accept that [Mr A]’s father and [spouse] are so violent that they will harm or kill the applicant, her children or her partner. The Tribunal does not accept this because they know the location of the applicant’s parents in India and have never tried to obtain retribution by threatening or harming them. Furthermore the preparedness of [Mr A] to engage with his father whom he claims was violent towards him and murdered his [sibling] is behaviour that does not support the claim. The Tribunal does not accept that a father would engage and ring every few months his own father simply for inheritance if he felt his father would kill or harm his children or spouse. The Tribunal also notes that [Mr A]’s father has a contact in Australia in [a town] who reported they were in a relationship and pregnant. This contact has never contacted the applicant or [Mr A] again. If [Mr A]’s family was likely to try and harm the applicant, the Tribunal believes that he would have used contacts in Australia to pass on threats or monitor the applicants. On the available evidence, the Tribunal does not accept that there is a real chance that [Mr A]’s family will harm the applicant and her children for reasons of the inter-caste relationship.
162. The Tribunal accepts the applicant’s claims that [Mr A]’s father is a man who is politically powerful and connected but for the same reasons as those stated above, the Tribunal does not accept that [Mr A]’s father would seek to pursue the applicant if she returned to India.
163. Based on available country information the Tribunal accepts that inter caste relationships make up a small percentage of marriages in India and go against societal norms and can attract violence from some parts of the community and extremist political parties. However, the Tribunal notes that there is a growing number of inter caste relationships particularly in metropolitan cities and in some instances are encouraged with the offer of financial incentives. However, the applicant is in a de facto relationship with [Mr A] and not legally married. Whilst it is not necessary that neither she nor [Mr A] disclose this information, the Tribunal cannot compel the applicant to disclose or not disclose. The Tribunal notes that for housing, health and education of their children evidence of relationship status may be required. A de facto relationship whilst only recently recognised under the law will still attract condemnation and discrimination as detailed in country research. The Tribunal also acknowledges that honour killings do occur. Whilst the Tribunal notes that there is very little country information on de facto relationships it accepts by way of what is available that such a relationship goes against societal norms and are considered by some to erode society’s values and morals.
164. Whilst accepting that the applicant’s family have disowned her, the Tribunal finds that there is no evidence to support the claim that they will go out of their way to harm the applicant because of her inter caste relationship.
165. The Tribunal finds that the applicant will return to India by herself with her children. [Mr A], her de facto partner, is in detention and has been proactive in his appeals. He has demonstrated his commitment, willingness and determination to remain in Australia based on his migration history and recent appeals. His most recent appeal to the AAT was based on a remittal from the Federal Court and is currently with a Member for decision. If he decides to further pursue avenues for review, he could remain in Australia for at least a further twelve months given the current delays in the system. He has also spoken of his intention to remain in Australia to argue his case. The Tribunal accepts that the applicant and [Mr A] have stated they are committed to each other, the Tribunal also notes that there has been a history of family violence and drug abuse by [Mr A] and he has stated that he does not intend to return to India. Based on the information before the Tribunal, it is the most likely and logical situation that the applicant will return to India without a male companion and she will be considered a single mother.
166. The Tribunal therefore accept that the applicant will face the same stigma on return to India as that of other single, separated or divorced women in India. The Tribunal finds that they are distinguishable by a characteristic or attribute common to all members of the group, namely that they have separated or are divorced from their partner and are no longer in a married relationship. This is not the shared fear of persecution, but rather visible, by way of them being single or divorced and not having a husband, indicator of their status. This characteristic distinguishes them from society at large; they are clearly identified as a distinct group in India in the country information, and are distinct from other women, such as married or not yet married women. Therefore, separated/divorced women form a particular social group. The Tribunal finds that the applicant is a member of this particular social group.

167. The Tribunal finds that the applicant on return to India will face serious harm on the bases that she will not have the capacity to earn a livelihood of any kind and as such will not have the capacity to subsist. She claims she and [Mr A] rely on government support in Australia and she has no money and he cannot support her from detention. The Tribunal accepts this. There are limited organisations that support women in this situation in India and no government support. She will have two young children to support. Whilst the Tribunal acknowledges that applicant is educated and has work experience, she is a Dalit and a single woman. Country information states that health care is a major neglected area for single women (for whatever reason they are single), besides access to property rights and violence. Upon arriving, she will struggle to find accommodation and employment. Whilst childcare is available in India, the applicant will have no means in which to pay for it. The Tribunal finds that the applicant meets s. 91R(2) of the Act because she will be denied a capacity to exist which amounts to serious harm.
168. Based on the available country evidence, the Tribunal concludes that there is a real chance that the applicant and her children (of which the eldest is the subject of this review) will face discrimination from society at large amounting to persecution for reasons of the fact that the applicant is a member of a particular social group (an unmarried, single parent) who is also a Dalit and has no family support.
169. Having considered all the relevant issues in this case, the Tribunal concludes that the applicant will face a real chance of persecution amounting to serious harm if she returned to India, now or in the foreseeable future.
170. The Tribunal has considered state protection and has relied on country information which highlights that this particular social group faces discrimination across India from society but also from government. This is evident in country research which details the lack of support victims of domestic violence obtain from police and generally the lack of government resources set up to support single women and mothers.
171. The Tribunal has considered the option of relocation and finds that the applicant will face the same social stigma in any area of India. The Tribunal is cognisant of the Treaty with Nepal but, for the same reasons finds that this is not an option. Having considered the totality of the applicant’s circumstances, the Tribunal concludes that internal relocation is not a reasonable option for the applicant.
CONCLUSION
172. Having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, the tribunal is satisfied that Applicant one has a well-founded fear of persecution for a Convention reason if she was to return to India now or in the reasonably foreseeable future, and therefore she meets the criterion in s.36(2)(a).
173. The Tribunal is satisfied that the second named applicant is a dependent child of applicant one and as such is a member of the same family unit as the first named applicant for the purposes of s. 36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that he will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
174. The Tribunal remits the matter for reconsideration with the directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act.
(ii) that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Rachel Westaway
Member

[i] US DoS Reports on Human Rights Practices for 2013 – India , Indian Council for Social Science Research(ICSSR) March 7, 2014

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1416651 (Refugee) [2016] AATA 4422

Cases Citing This Decision

Cases Cited

Statutory Material Cited

[2016] AATA 4422

8 September 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Jurisdiction

Remedies

Natural Justice