1506016 (Refugee)

1506016 (Refugee) [2018] AATA 434 (30 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1506016
COUNTRY OF REFERENCE:                  India
MEMBER:Tania Flood
DATE:30 January 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(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.

Statement made on 30 January 2018 at 10:39am
CATCHWORDS
Refugee – Protection visa – India – Social group – Single Muslim woman with child born out of wedlock – Societal discrimination – Relocation not possible – No state protection in Nepal – Credibility – False and misleading information – Ill-explained inconsistencies – Cannot confidently be believed
LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 36(3), (4), (5) and (5A),
Migration Regulations 1994, Schedule 2, r 1.12
CASES
MIMAC v SZRHU [2013] FCAFC 91
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] June 2014 and the delegate refused to grant the visas [in] April 2015.
The applicants appeared before the Tribunal on 15 September 2017, 27 October 2017 and 12 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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’).
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.
MEMBERSHIP 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. The Tribunal is satisfied, on the evidence before it, including a copy of a New South Wales Marriage Birth Certificate, that the second named applicant is the daughter of the first named applicant.
ISSUE
The issue in this case is whether there is a real chance the applicants will suffer serious harm on return to India for reason of their race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether as a necessary and foreseeable consequence of them being removed from Australia to India there is a real risk they will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of claims and evidence
In her application for a protection visa the applicant claims:
She was born on [date] in [Town 1], Tamil Nadu, India.
She is a Shia Muslim.
She arrived to Australia [in] April 2014 as the holder of a visitor visa which was issued in New Delhi [in] March 2014.
After completing her [degree] she left her village and went to Chennai to study. At that time she met [her husband] and they fell in love. They married (without registering) and lived together. When their families learned about this they opposed it vehemently because she is Shia and he is Sunni.
Her father and brother beat her insisting that she should not have a connection with him and should not see him. They tortured her.
She was adamant that she wanted to continue studying and they gave her permission to go to Pondicherry on [date]/11/2013 to enrol in [a] course. Prior to that she had requested her husband to meet her there through a friend.
She was married [in] November 2013 in [Town 2]. She and her husband went to [Town 2] and registered their marriage in accordance with the Muslim system. After that they went back to their respective houses.
She and her husband had been exchanging messages through her friend and somehow this had leaked out and there was opposition from both families. As a result of this her father and brother beat her and her brother kicked her in the stomach. Her father beat her with his hand and a stick. They tried to force her to forget her husband and marry someone else but she refused. They threatened to kill her.
Her husband’s brother and uncle also beat him and asked him to forget about her. They threatened him that they would kill her.
[In] January 2014 the villagers became aware of this. Her husband’s brother and uncle had asked her family to summon the village committee and separate them. They said that if her parents failed to do that they would kill her.
[In] January 2014 she escaped and went to the police station. She made a complaint to the police stating that her family and the village people had decided to kill her and sought protection. The police officer had accepted bribes from the village people and told her that since this matter was concerning the village he could not offer her protection. He refused to accept her complaint and said that if she stayed there anymore they would charge her as a Muslim terrorist. Further, the other police officers present at the station scolded her on a sexual basis and harassed her.
Generally there is no protection for women in India, especially at the police station.
[In] January 2014 she and her husband both went to Chennai where they rented a house and lived.
[In] February 2014 a police officer from Chennai questioned her when her husband was out, threatened her and invited her to go with him with bad intention. When she refused he beat and dragged her. He got scared and shouted for help. The police officer told her that he would kill her and threatened that he would not spare her wherever she went. Then he threatened her with his gun and said he would come back.
That same day she went to the doctor and it was confirmed she was pregnant.
[In] March 2014 her father, mother and brother discovered her house and at the time her husband had gone out to attend to some business. When they found out she was pregnant they beat her. Then they dragged her out in order to take her to the village with the intention of killing her. While on the way she told them that she had to go to the bathroom and she escaped.
She contacted her husband and when she was on her way to meet him the Chennai police officer and some other people followed her. They threw stones at her when she managed to escape them. She was wounded.
After she met her husband and they stayed in hideouts, changing places every two days. In the meantime her friend informed her that her villagers, her family members and her husband’s family members had decided to kill her before she could give birth to her child.
She experienced torture from her villagers, family and police because she is a woman born in India where there is no protection for women and because she is a Shia Muslim.
Even if she goes to another part of India there is always Hindu-Muslim problems and there is no protection. Because they are Muslims there is no protection in the present circumstances.
They sought advice from her husband’s friends. They advised them to go to Australia. Her husband sent her to Australia because he could not go immediately due to problems and commitments.
She arrived in Australia [in] April 2014.
In an interview with the Delegate the applicant made the following additional claims:
[In] April 2014 her husband put her on a plane at Chennai airport. She has not seen or heard from him since then.
She fears that she and her daughter will be killed on return to India by her family and/or her husband’s family, her villagers or by the State as a Muslim woman. She also fears harm for herself and her daughter due to many acts of terrorism currently being committed in India.
Evidence to the Tribunal
The applicant appeared before the Tribunal on 15 September 2017 with her two young children. The hearing was adjourned shortly after commencement for logistical purposes but beforehand the applicant confirmed that the incidents and facts set out in her application form and statement are true and correct but that some of the dates might not be completely accurate.
On 20 September 2017 the Tribunal wrote to the applicant inviting her to comment on or respond to certain information which it considered would, subject to her comments or response, be the reason or a part of the reason for affirming the decision under review. The information which was put to the applicant is as follows:
That copies of incoming passenger cards, filled in and signed by her and a person bearing her husband’s name and signature, indicate that she arrived in Australia [in] April 2014 together with her husband.
That Department records indicate that her husband travelled in and out of Australia since their arrival together [in] April 2014 and was in Australia on the date on which she made her application for a Protection visa with his latest departure being as recent as [date] July 2017.
That copies of her children’s birth certificates reveal that she and her husband were both listed as informants on the certificate of her first child, and as residing at the same address.
In its letter of 20 September 2017 the Tribunal explained that the above information is relevant because it appears to undermine her claim that she last saw her husband when he farewelled her at the airport in Chennai and that she has no idea of his current whereabouts. The Tribunal pointed out that the information suggests that she and her husband travelled to Australia on the same flight and that at the very least he was living with her at the time when her first child’s birth was registered. The Tribunal suggested that her husband’s ongoing presence in Australia could also indicate that she is in a continuing relationship with him. The Tribunal advised the applicant that if it were to rely on this information it may find that her evidence is not truthful and reject her claims which may lead the Tribunal to affirm the Department’s decision.
On 3 October 2017 the applicant wrote to the Tribunal and provided the following comment on the above:
When asked at the first Tribunal hearing on 15 September 2017 whether she needed to change any of the information contained in her application she could not pay attention to the question and answer properly because of the annoyance caused by her children who were present at the interview.
The person who had been described as her husband did come with her to Australia. They left together from India.
While in transit at the airport in [Country 1] her husband’s friend told her that he was already married. She therefore became aware that the marriage between them was illegal. Because of this she fought with him and the relationship ended. Since they had already bought the tickets to [City 1 Australia] they came together and at [City 1] airport they separated. She saw him again after five or six months and since then she has seen him many times.
Since arriving from India she has been in a fearful and confused situation because she was betrayed and there is nobody to help her. She submitted her application while she was in a confused state of mind. At the first interview she was very scared and confused and responded to the questions while she was confused. She did not live with her husband after arriving in [City 1]. After a few months she met him once and talked with him.
The birth certificate mentions [applicant name] not the name of [name]. She mentioned this to the Delegate but her explanation was not accepted.
When she went to register the birth at the Registrar’s office she wrote the name of the father when she handed in the application but she was informed that the father had to be there and sign as well. She told them the father was no longer with her and they said they cannot write the father’s name and so wrote unknown in the father’s name column. If they had been living together why should they state the father’s name as unknown.
She may not have told the complete truth but she was in a life threatening situation and trying to protect herself.
The applicant appeared before the Tribunal again on 27 October 2017 and provided the following testimony:
She is a Shia Muslim. She grew up in a mixed Shia/Sunni Muslim community but Shia Muslims were the majority. She wasn’t aware of any significant religious problems in the community and the religious leaders generally resolved whatever differences arose.
She still has family in [Town 1] in Tamil Nadu including her parents; [composition of family]. The family lives together and they are all Shia Muslims.
She has had no contact with her family since leaving India because she is afraid of them. Initially she maintained contact with a friend but she has also lost touch the friend as well.
She completed a [degree] in [Town 1] and studied for entry to [deleted] for [number] months in Chennai. She commenced a [further tertiary course] through distance education but only completed one semester before she was forced to return home to her parents’ house after meeting her husband.
She has no work experience in India. She applied for [particular] positions in Australia but was unsuccessful in gaining employment because she lacks work experience. While she was pregnant she volunteered in a [certain] agency to gain some experience. Currently she is not working.
Her second child was conceived following a brief affair with a man she met contracting a sale on [the internet]. When she learnt she was pregnant she ceased having any contact with him because she knew she didn’t want a serious relationship with him. She did not list him as the father on the child’s birth certificate because she feels guilty about the situation.
She did not tell the Delegate and the Tribunal the truth about her arrival to Australia with her husband because she was upset and angry with him and didn’t want to talk about him.
As to her marriage she said she thought it was a legal marriage which took place in a [Town 2] in a marriage registry. She then said it was a religious ceremony and that according to Islamic law it will be considered a valid marriage but not according to Indian law.
When travelling to Australia they transited in [Country 1] for four days. One of her husband’s friends let slip that he was married to another woman and she and her husband had a heated argument. She said she was very angry but felt she had no choice but to continue to travel to Australia with him because she feared going home.
When asked if she has any contact with her husband now she said they live in the same community and she sometimes comes across him. She said that over time she has let him talk to his daughter on occasion. She said she last saw him about three or four months ago at the shopping centre. She said that they exchange polite greetings and she does not fear any harm from him. When asked if she has a contact phone number for her husband she said she does not.
The Tribunal put it to the applicant that her claims arise in part from the fact she claims to be a Shia Muslim married to a Sunni Muslim which was unacceptable to her family and community. The Tribunal put it to her that as the relationship is now over the circumstances which give rise to her fear of returning to India may no longer exist. She replied that if she takes her children back to India she and the children’s lives will be threatened. Her family will never accept her children and they think she has brought shame on the family. This has affected their standing in the community. She said she fears her own family will kill her for this reason. Even if she gets a divorce it will not make any difference.
She said she first met her husband when she was undergoing training in Chennai. She said she was living in a rented room at the time and over time her husband began visiting her there. She said that her family had arranged the room for her and the house owner informed them about the situation. Her family came to the property and assaulted her and took her back to her home.
Thereafter she said that she maintained contact with her husband through a friend who passed messages between them. She said that after some time she managed to convince her family to allow her to go to Pondicherry to register for further studies. She said she and her husband used that opportunity to get married because they thought that once they were married nobody would be able to separate them. After the marriage she returned home.

She said that after some time her family came to know that she was still continuing the relationship. She said that she had tried to call her husband using her father’s phone. She said the community also found out about it around this time. Thereafter she said the community stopped including her family in celebrations and tried to force them out of the village. Other family relatives also stopped socialising with them. Her elder brother and her father were very ashamed and they wanted to kill her.
When she realised her life was in danger she went to the [Town 1] police station but they said it was an issue for the Muslim community to resolve and asked her to leave. Afterwards she travelled to Chennai alone and went to live with her husband there. She said that her husband took her to a friend’s house and after that he rented a room in a house for them. She said they started living a normal life together and she became pregnant.
She said that somehow the police came to know where she was and came to the house and forcibly tried to remove her. When she screamed and shouted the neighbours came around and the police left. She said she thinks her family asked the police to look for her but she doesn’t know how they managed to find her.
After this incident she and her husband decided to come to Australia. They vacated that house and went to stay with friends in various places to avoid being found again.
She last saw her family when they came to Chennai and tried to forcibly take her back home. She managed to escape them when they stopped for a meal along the way. She fled through the bathroom and took a bus back to Chennai.
She said that all the time she was with her husband in India she was unaware he was married to someone else. She said that sometimes he went away for a day or two claiming he had to work. She said she never met his family and did not find it strange she did not.
When asked why she cannot relocate to another part of India to avoid any harm from her family and/or the community she said she will never be safe as a woman living alone with her children in India. She said her neighbours and others will ask her where her husband is and who is the father of the children. If they know she is a single woman the men will try to enter her home by force and the authorities will not protect her. She said that sexual assaults on women and girls are commonplace in India and especially for Muslim women.
Furthermore the applicant said that it will be very difficult for her to find employment in India. She said that she will be harassed and it will also be very difficult to find housing as a single mother.
The applicant appeared by the Tribunal again on 12 January 2018. At this interview the applicant testified the following:
Before arriving to Australia she previously travelled to [Country 1] and [Country 2] with the man she married. She was uncertain of the dates but thought it was before they married. When asked how she was able to conduct that travel without being married she said she managed to convince her parents that she was going a tour with a friend.
As to where her husband was between the date of their marriage and when they reunited in Chennai she said she didn’t know whether he was at his home or moving around. She said she couldn’t remember whether he was outside the country during that period.
As to where they lived in Chennai she said they moved around between friends’ homes. She said her husband wasn’t living with her all the time but he came to see her frequently. When asked if he was in India that whole time she said she thought he was because he visited her regularly.
During the third interview, and pursuant to the requirements at s.424AA of the Act, the Tribunal discussed with the applicant information that would, subject to her comments on, or response to it, be the reason or part of a reason for affirming the decision that is under review. Specifically, the Tribunal informed the applicant that information contained on the Department file and in other records of the Department indicates that her husband may have been living in [Country 2] from 2012 through to 2014 with another family. In his application for a [temporary] visa he stated that he was residing in [Country 2] from [date] July 2012 to [date] August 2014. On his application for a Visitor Visa to Australia he lists a residential address in [Country 2] as well as a [Country 2] business address. He also provided evidence of a bank account held in [Country 2]. The Tribunal advised that at or around the time she claims to have been threatened by her family and community it appears likely her husband was in [Country 2] where he applied [in] December 2013 for Visitor visas for him and his family to come to Australia which were granted [in] December 2013. Further, the Tribunal advised the applicant that contrary to her claim that she and her husband met up [in] January 2014 and rented a house in Chennai and commenced living together normally the information before the Tribunal indicates that he was in Australia [in] January 2014 when he then flew to [Country 3]. Also, [in] February 2014 it appears he was back in [Country 2] where he was issued with a new passport.
The Tribunal explained to the applicant that this information is relevant because it appears her husband may not even have been in India when she claims to have married or at the time she claims they were experiencing problems with their families and her community as a result of the marriage. The Tribunal explained that certainly it doesn’t appear possible that he was with her in Chennai [in] January 2014 as claimed in her written statement. Also it was noted that her previous oral evidence to the Tribunal makes no mention of the fact her husband was travelling abroad extensively and for significant periods of time during this time.
The Tribunal explained that if it relied on the information, it may find that her evidence is not credible and reject her claims, which may lead to the decision being affirmed. The applicant was invited to comment on or respond to this information and advised that she could seek more time to do so if required.
The applicant chose to respond verbally to the information at hearing. She said that when she wrote her statement she was advised to provide specific dates and she had done the best she could but could not be certain they were accurate. She said that between 2012 and 2014 her husband was not continuously in [Country 2]. She said he came to India and they were together often. She reiterated her claim that the circumstances she has described are true. She said her mistake was to have lied about travelling together with her husband to Australia but as she was very angry about the situation she did not mention this fact.
When discussing her experiences as a Muslim woman more generally the applicant said that she had to fight for the right to study and to travel. She said that when she went to study in Chennai her parents made the arrangements for her to live in a hostel but later she moved out to a room where she lived with her husband. The Tribunal pointed out that this is a different account to what she had earlier told the Tribunal. Namely, that her parents paid for the room where she was living and spending time with her husband and that the owner of the property informed her parents of this. She maintained that her parents paid for her to live at the hostel but she later moved out without their knowledge.
Country information
Treatment of women in India, including Muslim women, single, divorced and widowed women
The country information generally indicates a high prevalence of violence against women in India. For example, in 2015, the Immigration and Refugee Board of Canada (IRBC) provided the following overview of violence against women in India:
Sources report that violence against women in India has increased (Ghosh 2013, 409; UN 26 Aug 2013). According to Crime in India 2013, a report published by India’s National Crime Records Bureau (NCRB), which is part of the Ministry of Home Affairs (MHA), 309,546 crimes against women were reported in 2013, including 33,707 rapes and 51,881 cases of kidnapping and abduction (India 2013a, 81). There was an increase of 26.7 percent in crimes against women from 2012 (ibid, 79). The same source reports that in 2013, more than 8,000 women were killed in dowry-related crimes, and more than 100,000 were victims of cruelty by their husbands or male relatives (ibid.). A 30 September 2014 article published by Inter Press Service (IPS), citing “the latest records published by the …NCRB, “reports that 92 women are raped every day in India. Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
Sources report that under-reporting of violence against women is common (Al 2015, 182; CNN 15 Dec 2013). Similarly, a 19 December 2014 article by the Hindu, an English-language daily newspaper, states that the rate of unreported sexual violence in India is “far higher” than statistics indicate. Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.[1]
[1] Canada: Immigration and Refugee Board of Canada, India: Violence against women, including domestic violence, homelessness, workplace violence; information on legislation, state protection, services, and legal recourse available to women who are victims of violence (2013-April 2015), 15 May 2015, IND105130E
In the case of violence against homeless women, the IRBC reports that:
…In a telephone interview with the Research Directorate, an associate professor of political science at Carleton University, whose research interests include South Asian politics and who has co-authored a book on domestic violence in Mumbai, noted that “violence against homeless women in India is rampant” (Associate Professor 27 Apr 2015). According to the same source, homeless women are “open to all kinds of abuse including sexual and physical abuse” and they face daily violence by “just about anyone” including the police (ibid). According to SAM:BKS, violence against homeless women includes verbal, physical and sexual abuse as well as economic and social “exploitation by police, employers, local goons, and even passers-by” (SAM:BKS Jan 2014). The report on violence against homeless women in Delhi similarly states that homeless women commonly face “rape, theft, murder, kidnapping, sexual exploitation and gender-based violence” (Chaudhry et al Mar 2014). Sources indicate that a lack of access to essential services and public facilities is one of the major issues encountered by homeless women (ibid, Satija and Datta 28 Feb 2015, UN 20 Feb 2013).
According to SAM:BKS, women who are affected by homelessness “have no recourse to legal remedy, aid or redress” (Jan 2014). The report on violence against homeless women in Delhi similarly reports that “homeless women have no access to government schemes” (Chaudhry et al Mar 2014). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.[2]
[2] Canada: Immigration and Refugee Board of Canada, 15 May 2015, IND105130E
A 2015 report on the Status of Women by the High Level Committee on the Status on women, which is constituted by government of India acknowledges that women from all classes, religions, castes and ethnic backgrounds are marginalised in multiple ways, but identifies Dali, Muslim and Adivasi women, in addition to single women including widows and elderly women, differently abled women, transgender persons and women in sex work as at particular risk of discrimination. Further, ‘these women are seen to experience high levels of violence at home and outside’. The report goes on to observe:
…Muslim Women: Muslim women lag behind in almost all key socio-economic indicators of development. They are economically and educationally marginalised, have low social status, and experience domestic as well as communal violence spurred by identity politics. They are second lowest on WPR (work participation rate) an lowest on labour force participation rate. Health services rarely reach them due to lack of existing schemes, and partly due to the limited mobility on account of ghettoization, as a result of riots and communal violence. They suffer the male-centric legal provisions of triple oral talaq (divorce), polygamy, customs such as Halala and lack of maintenance.
…Single Women: the incidence of singleness is much higher for women than men, and numerous socio-cultural, psychological and economic factors make them vulnerable and marginalised. Within single women divorced/separated women are more stigmatised. Widows are the largest category of single women (86 percent) an face high levels of deprivation, social taboos, limited freedom to remarry, insecure property rights, social restrictions on living arrangements, restricted employment opportunities, emotional and other forms of violence and lack of social support. [3]
[3] “Report on the Status of Women in India – Executive Summary”, High Level Committee on the Status on Women, Government of India, 01 July 2015, CISEC96CF13102
An earlier 2013 report from the IRBC describes the stigma that attaches to divorced or widowed women as follows:
Media sources report that, according to India’s census of 2001, there are approximately 36 million women in India who are widowed, divorced or separated from their husbands (IPS 22 Oct 2009; the Times of India 8 Oct 2009; Womens eNews 10 Jan 2010). The National Forum for Single Women’s Rights indicates that these single women are rejected by society and treated with indifference by the federal government (ibid). For example, widows are said to face “deep social stigma” (IPS 22 Oct 2009), “social marginalisation” (IANS 6 Oct 2009) and “cruel” treatment by in-laws (The Hindu 7 Oct 2009). Media sources similarly note that divorced women face social “stigma” (ibid 30 Dec 2009) and “ridicule” (Mail Today 2 Feb 2011).
According to an activist involved in launching a national forum for single women’s rights in 2009, single women in India are subjected to “unjust social customs” (IANS 6 Oct 2009). Women’s eNews, a non-profit internet based news service reporting on women’s issues likewise explains that women who are unmarried or who were left by their husbands generally “live invisibly, often at the mercy of callous family customs” (10 Jan 2010).[4]
[4] Canada: Immigration and Refugee Board of Canada: Whether women who head their own households without male support can obtain housing and employment in Delhi, Mumbai and Chandigarh; government support services available to female-headed households in these cities; violence against women in these cities (2008-2011), 16 May 2013, IND104430E.
With respect to the issue of housing, the same report notes that sources indicate that, traditionally, women in India go from living with their parents to getting married and living with their husband and his family and that single women who live away from their families face “social and family stigma”, particularly if their families live in the same city. The report indicates that the suspicion with which single women are regarded makes accessing housing difficult, noting:
According to India’s Ministry of Women and Child Development, finding safe housing is one of the “main” problems for women who move to larger cities in search of employment (India n.d.b). Media and academic sources also report on the difficulties single women face trying to rent apartments in metropolitan areas (Global Post 8 Aug 2010; DNA 4 July 2010; The Straits Times 4 Dec 2010; Patel 2010). The professor of women’s studies and political science said that while access to housing is “significantly improving” for middle-class and high income single women (including divorced and widowed women), there continue to be significant social and cultural barriers around women’s sexuality. Women residing alone may be viewed as having suspect reputations and may have to have family members vouch for them in order to gain access to housing….
…..Muslim women ….. may face additional barriers of discrimination that intersect with gender obstacles (professor 4 May 2011)
In Delhi, where 60 percent of residents live in slums (PCESCR May 2008), women who are arriving from other areas of India for an education or employment reportedly lack proper housing (The Straits Times 4 Dec 2010). Access to adequate housing is also an issue in Mumbai, where 50 percent of residents live in slums (PCESCR May 2008). For example, Global Post, a Boston-based internet news agency, reports that single women in Mumbai have a difficult time finding landlords willing to rent them apartments (8 Aug 2010). According to a real estate agent featured in the Global Post article, many Mumbai housing societies, which decide who can and cannot rent apartments, expect single women “will use the apartments for sex work” (8 Aug 2010). Patel similarly notes that some landlords suspect that single women are prostitutes or bar dancers (2010). Media sources also indicate that such perceptions result in single women who live on their own being subject to scrutiny by neighbours (Global Post Aug 2010; DNA 4 July 2010). The DNA notes that another obstacle to finding “decent” housing is that many single women cannot afford the high rent for apartments in Mumbai (DNA 22 July 2010).[5]
[5] Canada: Immigration and Refugee Board of Canada, India 16 May 2013, IND104430E
A 2016 article published in the Sanglap: Journal of Literary and Cultural Inquiry, which includes information on single unwed mothers in India, indicates that ‘Even though urban India has emerged as the hotspot of more egalitarian social relationships, vast majority of the country is yet to experience the same. Popular culture has not progressed from the Aradhana days to put forward a more positive image of unwed single mothers’. Aradhana was a popular Indian film from 1969 on the ordeals of a single unwed mother. The article states that ‘Living with the social stigma is an immense burden for unwed mothers in a patriarchal society’.[6]
[6] Das, M 2016, ‘Mum’s the Word: Heteronormative Indian Society and the Censorship of Single Unwed Mothers’. Sanglap: Journal of Literary and Cultural Inquiry, vol 2, no 2
According to a September 2015 article on the Medecins Sans Frontieres website, ‘In India a single mother is worth nothing. She is challenged, questioned and criticised. Each step she takes is carefully observed. She is whispered about behind her back, every day’.[7] A July 2015 Asia Times article also indicates that ‘Unwed mothers in India have to grapple with questions from nosy neighbours and taunts from colleagues at workplace. In most cases, they are ostracised by their own families. Those who have money and the grit to bring up their children on their own often hit a wall when it comes to official paperwork’.[8]
[7] Nunez, I 2015, The stigma of being a single mother in India, Medecins Sans Frontieres, 30 September
[8] Mukherjee, A 2015, ‘Unwed mothers in India hail top court’s ruling on guardianship’, Asia Times 14 July
A March 2012 interview with a single mother in India refers to people pitying her, her children, parents and grandparents, and to her children facing ‘the brunt of the society’.[9]
[9] Raghavn, AS 2012, An Interview with a Single Mother: How She Survives in the Indian Society, Youth Ki Awaaz, 27 March
In 2015 DFAT reported that there is a low level of official discrimination and a moderate level of societal discrimination against Muslims across India which can be partly attributed to the community’s relatively low socio-economic status.[10] With regard to the situation of separated or divorced women, the information indicates that, in the context of communal violence, single women and women estranged from their family face a higher risk of sexual abuse.[11]
[10] DFAT Country Information Report India, 15 July 2015.
[11] United Kingdom: Home Office, Country Information and Guidance – India: Women fearing gender-based harm/violence, April 2015
State Protection

The UK Home Office[12] reports:
[12] United Kingdom: Home Office, Country Information and Guidance – India: Women fearing gender-based harm/violence, April 2015
Each of the 29 states and 7 union territories of India has its own separate police force, high courts and subordinate courts. Consequently police training, conduct and competencies vary from one state to another. The US Department of State 2013 Human Rights Report for India confirmed, ‘The effectiveness of law enforcement and security forces varied widely throughout the country’. The UN Special Rapporteur stated in April 2014 that “Fair trial rights, equality before the law and equal protection of the law were affected by numerous challenges, beginning with the reporting of cases of violence against women to the police. Many interlocutors said that victims were often discouraged from reporting to the police and that many women did not file a complaint owing to fear of reprisals or lack of guarantees of adequate shelter and access to livelihoods. Informal dispute settlement alternatives are often sought, allegedly by police, family members or community leaders. Many interlocutors described the complete or partial absence of legal, housing, security and financial assistance measures for victims. To be able to officially report complaints and continue throughout the often lengthy judicial process in safety and with an adequate standard of living is not an option for many women.
A 2016 Department of Immigration and Border Protection Issues paper reports that many within the Indian security forces – including the police and military – are poorly trained, corrupt, ineffective, and at times responsible for human rights abuses. According to the US Department of State during 2015 the most significant human rights problems involved police and security force abuses including extrajudicial killings, torture, and rape; corruption remained widespread and contributed to ineffective responses to crimes, including those against women, children, and members of scheduled castes or tribes; and societal violence based on gender, religious affiliation and caste or tribe.[13]
[13] DIBP, India: State protection, Issues Paper, 23 December 2016
According to DFAT despite legal reforms sexually-motivated harassment and violence against women remain a problem of significant scale in India and access to police and judicial intervention for victims is often poor.[14]
[14] DFAT Country Information Report India, 15 July 2015
Relocation
DFAT has reported that, in practice, options for internal relocation can be limited by a range of factors, including language barriers; a lack of documentation; lack of familial or community networks; lack of financial resources and employment opportunities; and discrimination based on ethnicity, religion, caste or gender. DFAT 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’.[15]
FINDINGS AND REASONS
[15] DFAT Country Information Report India, 15 July 2015
Country of reference
At the time of her application for a Protection visa the first named applicant submitted a copy of her Republic of India passport as evidence of her citizenship. The applicant’s daughter was born in [Australia] but country information indicates that a child born to an Indian national is an Indian national by descent.[16] There is no evidence before the Tribunal to suggest the applicants are not nationals of India and the Tribunal has therefore assessed their claims against India.
[16] CX135735
The applicant’s Muslim religion has been a consistent thread in her protection visa claims and after some considerable discussion about her beliefs at hearing the Tribunal accepts she is a Shia Muslim.
The Delegate found [in] April 2015 that the applicant’s claims are not credible, in part due to her providing false and misleading information in her written and oral testimony about the circumstances of her travel to Australia. When the applicant first appeared before the Tribunal on 15 September 2017 she again indicated that the circumstances claimed in her written statement were true and correct with the possible exception of some inaccuracies around the dates on which certain events occurred. It was only when the Tribunal presented the facts of her arrival to Australia to the applicant in writing, pursuant to the requirements at s.424a of the Act, that she admitted to providing the false information.
The Tribunal is prepared to accept that the applicant may have been unsure of her situation and that she felt angry and betrayed on arrival to Australia and that this led her to misrepresenting the facts in her written statement. However, the Tribunal is not satisfied that this accounts for her maintaining the false account of what transpired when presented with the facts at her Departmental interview. The Tribunal considers she had the opportunity to amend her claims at that point and again when she first appeared before the Tribunal but did not. The Tribunal does not accept her reason for doing so on the latter occasion was due to lack of concentration created by the presence of her children at the hearing as claimed. The first Tribunal hearing was quickly adjourned after commencement and apart from a few preliminary background questions this was the only other significant question put to her during that short time. The Tribunal is of the view the applicant has fabricated this response in order to cover up the fact that she did not volunteer the truth when asked. The Tribunal considers this reflects poorly on the applicant’s credibility and also raises concerns for the Tribunal about the veracity of elements of her claims.
In addition to the above, while the applicant’s chronology of the claimed events is generally consistent the Tribunal finds that there are ill-explained inconsistencies in elements of her evidence which cast further doubt over aspects of her claims. For instance, when discussing the formation of her relationship with her husband at the second Tribunal hearing the applicant stated that she met him in Chennai when she was a student and that after some time he started visiting her and sleeping over at her rented room which was organised and paid for by her family. When the Tribunal questioned the logic of this at the hearing noting that she was an unmarried Muslim woman at the time and that such behaviour would surely be questioned by the community, she responded that she directed her husband to be discreet. At the third Tribunal hearing the applicant informed that her family organised and paid for her accommodation at a hostel in Chennai and that she later moved out of the hostel without their knowledge and rented a room where she lived with her husband. When this was put to the applicant at hearing her response did nothing to alleviate the Tribunal’s concerns. The Tribunal read back to the applicant her previous account of the situation and she first agreed it was correct but then she maintained that the latter version of her claim was correct. The Tribunal found her responses illogical and unpersuasive.
Similarly, in her written claims the applicant states that [in] January 2014 she and her husband both went to Chennai where they rented a house and lived together. At various times during the hearings before the Tribunal the applicant referred to her and her husband commencing to live a normal life in Chennai when she left her family home after being assaulted by her family members. At the final hearing when the Tribunal was attempting to clarify how it was possible the applicant moved to a house with her husband in Chennai [in] January 2014 when information before the Tribunal supports he was more likely to have been in [Country 3] at the time, the applicant then stated that she did not live continuously with her husband in Chennai. She said that he visited her regularly where she was staying but they were not living together as a normal husband and wife and this accounts for why she cannot be certain of his movements and whereabouts at all times. Again, the Tribunal found her differing evidence in this respect problematic.
The Tribunal accepts that at the commencement of the first Tribunal hearing the applicant stated, without hesitation or prompting, that she could not be certain the incidents she claims occurred happened on the dates she previously mentioned and she repeated this claim during her last appearance before the Tribunal. She stated that she was told at the time of application that it is important to provide specific dates and she did so to the best of her memory. The Tribunal is prepared to accept that inaccuracies about timing could possibly overcome some of the concerns raised by the Tribunal about her husband’s whereabouts at certain times. In forming this view the Tribunal has also had regard to Departmental records which support that he was and is a frequent traveller between various destinations. However, the Tribunal is concerned that at no time in her discussions with the Delegate or the Tribunal did she venture this information about her husband’s movements and in any event this situation does not resolve the differing information provided about her living arrangements in Chennai prior to her departure from India.

100. Irrespective of the above, there is information before the Tribunal which supports the claim that the applicant was married to the person she claims in a religious ceremony in India. The applicant has produced a copy of a marriage certificate which supports she is married to the person claimed and the birth certificate of her daughter also lends support to the claim he fathered the child. Also, there is proof that the applicant arrived to Australia in the company of the person she claims she married. The Tribunal accepts the applicant married the person claimed. On the available information the Tribunal also accepts the claim that the person she married did not tell her he was already married and that indeed it appears he is married to another person with whom he has various children. The Tribunal accepts she is no longer in an intimate or ongoing relationship with that man.
101. However, having carefully considered all the available evidence, and for the reasons outlined above, the Tribunal has formed the view that the events the applicant claimed transpired with her family and community in India over her marriage cannot confidently be believed. There is no evidence before the Tribunal to support the applicant married a Sunni Muslim other than her own claims. In view of the concerns raised above about the reliability of the applicant’s evidence in respect of the events leading up to and following her marriage, and her departure from India, the Tribunal is not prepared to accept that her marriage or subsequent pregnancy was the cause of any concern to her family and community particularly as it appears unlikely her family and community would have been aware of the fact her husband was already married.
102. Notwithstanding the above, there is no evidence before the Tribunal, including the copy of the birth certificate provided, to support that the person she married is the father of her second child. In the absence of such information the Tribunal accepts the applicant’s evidence that her second child was born out of wedlock to another man.
103. The Tribunal accepts that if the applicant were to return to India now she would do so as a single or separated Muslim woman with a child born out of wedlock.
Is there a real chance the applicant will suffer serious harm if she returns to India
104. In her appearances before the Tribunal, and particularly during the third hearing, the applicant appeared ashen and emotionally distressed and she was observed to be visibly shaking when discussing her fears of returning to India as a single Muslim woman with two children, at least one of whom was born out of wedlock. The Tribunal believes she is genuinely fearful of being harmed by her own family and/or community for this reason.
105. As noted, the Tribunal does not accept her evidence about the past harm she claims at the hands of her family and/or community. However, in view of the current circumstances, and given the country information outlined above, the Tribunal is satisfied that if she returned to India now or in the reasonably foreseeable future she will be at risk of severe stigmatisation in her community as a single or separated Muslim woman, especially having a child out of wedlock, and even physical cruelty or violence from her family for bringing shame upon them for this reason. Based on the above reporting in respect of state protection for women experiencing harassment and violence in India the Tribunal is not satisfied she can avail herself of state protection against the harm she fears in her community.
106. The Tribunal finds that there is a real chance that the applicant will suffer serious harm if she returns to her community in India now or in the reasonably foreseeable future for reason of being a single or separated Muslim woman with a child out of wedlock. The Tribunal is satisfied that single or separated Muslim women with children out of wedlock constitute a particular social group within Indian society. Therefore the applicant has a well-founded fear of persecution.
107. The Tribunal has considered whether it may be reasonable for the applicant to relocate to an area where there is no appreciable risk of the feared persecution. However, the Tribunal considers that the applicant’s status will not change by virtue of where she may be located in India. In these particular circumstances, the Tribunal also accepts that if the applicant were to return to another location in India she would face the immediate challenge of securing accommodation and employment for herself as well as providing accommodation, care and access to medical services and education for her children. The Tribunal acknowledges the applicant has tertiary qualifications and can speak basic English but on her evidence she has no work experience either in India or Australia. Further, her children are aged approximately [ages] which will add to her difficulties in finding employment as will the reported discrimination she is likely to face in the workplace. Based on the country information outlined above the Tribunal accepts that even if the applicant did secure employment and a salary sufficient to rent a property, as a single, Muslim woman, she is likely to face discrimination in her efforts to secure safe accommodation. Single women living alone in India, away from their families are also reportedly subject to pejorative societal attitudes including severe stigmatisation and even physical violence. Furthermore, the country information indicates that there is a moderate level of societal discrimination against Muslims and that such discrimination intersects with gender discrimination. The Tribunal finds the applicant will likely encounter discrimination in employment and in securing accommodation for herself and her children and that this situation will also increase her vulnerability to gender based harassment, violence and stigmatisation from which she is unlikely to be adequately protected.
108. In view of the above the Tribunal does not consider relocation within India possible or reasonable in the circumstances.
109. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a) of the Act.
Third Country Protection
110. Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. The effect of these provisions is that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply. The conditions prescribed in s.36(4), (5) or (5A) will be met where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.
111. The Full Federal Court in MIMAC v SZRHU [2013] FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise any particular correlative duty upon the state in question. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).
112. The country information indicates that the administrative arrangements relating to the entry of Indian nationals into Nepal allow them to enter Nepal without seeking a visa or other permission and that these arrangements pertain under the provision of the treaty. Article 7 of the Indo-Nepal Treaty of Peace and Friendship of 1950 (the Treaty) provides that Indian nationals such as the applicant can enter and reside in Nepal, on the basis that:
[t]he two governments agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.

113. The applicant is a national of India. Accordingly, having regard to the terms of the treaty and the administrative arrangements for entry, the Tribunal finds that the applicant has the right to enter and reside in Nepal for the purposes of s.36(3), and that she has not taken all possible steps to avail herself of that right for the purposes of s.36(3) of the Act.
114. The Tribunal has therefore considered whether the applicant faces a real risk of significant harm in Nepal. With respect to the situation of women in Nepal, in April 2016 DFAT reported that:
The World Economic Forum’s Global Gender Gap Report for 2014, an index that measures gender-based gaps in accessing resources and opportunities across 142 countries, ranked Nepal at 112.
Patriarchal attitudes and deep-rooted stereotypes, as well as traditional practices such as child marriage (although prohibited), the dowry system, son preference, witchcraft accusations and sensitivities about menstruation (at its most extreme form seen through chaupadi, a traditional practice now outlawed whereby women who are menstruating are sent from the house and given minimal shelter and access to food and water during menstruation), continue to exist in Nepal.
Nepali women rarely receive the same educational and employment opportunities as men. Although there has been an increase in the proportion of economically active women, their earned income is about one-third that of men. Less than six per cent of women are employed in the formal sector (compared to 21 per cent of men) ….
Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and trafficking. The Government is yet to investigate credible allegations of sexual violence allegedly committed during the 1996-2006 conflict but has acknowledged that women suffered rape during these years.

Nepal’s laws contain a narrow definition of rape and have a 35 day limitation period for filing complaints. Penalties for marital rape are low. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement through informal justice mechanisms.
DFAT assesses as credible reports outlining women’s fear of, and related actual experiences of, sexual harassment and violence on the street (including rape and other forms of physical attack such as murder and mugging) and in the home. DFAT assesses that social stigma, cultural taboos about sexual violence and the fear of retaliation by the perpetrators prevent women from reporting criminal activity. Women’s fear of potential violence or attack can restrict their freedom of movement.[17]
[17] DFAT Country Information Report: Nepal, 21 April 2016

115. The same report by DFAT also notes that social stigma against divorced women, who can be seen to have contravened family honour is high. Social services such as refuges are inadequate and can be difficult to access.
116. In 2016 Amnesty International reported that discrimination, including on the basis of gender, caste, class, ethnic origin and religion persisted. Furthermore, women from marginalised groups, including Dalits and impoverished women, continued to face particular hardship because of discrimination, while laws criminalising rape continued to be inadequate and to reflect discriminatory attitudes towards women.[18]
[18] Amnesty International, Amnesty International Report 2015/6 – Nepal, 24 February 2016
117. In a January 2010 report the Internal Displacement Monitoring Centre reported that displaced women have struggled to find proper accommodation or access basic services in cities noting that displaced women suffer from significant discrimination making them highly vulnerable to further impoverishment and forcing many to resort to prostitution. The report concludes that in a society where women and girls already suffer from discrimination, displaced women are even further disadvantaged, at risk of further impoverishment and exposed to significant protection and health risks. [19]
[19] Internal Displacement Monitoring Centre 2010, Failed implementation of IDP policy leaves many unassisted 28 January 210.
118. The applicant has never been to Nepal and has no family or other networks or support mechanisms there. The applicant would be the sole carer for her children which will exacerbate the difficulties she would face finding employment and accommodation because of her gender. The Tribunal finds there is a real chance she would be unable to secure employment and accommodation for herself and her children and that in these circumstances there is a real chance that she would, as a Muslim, single or separated woman and mother without family support find herself unemployed and homeless and be exposed to a significant risk of sexual violence and gender-based discrimination which would in the circumstances amount to serious harm.
119. Considering the country information overall, the Tribunal finds the applicant would not have access to an adequate level of state protection against such harm in Nepal.
120. In light of the findings above, the Tribunal finds that s.36(4) is enlivened in this case. Accordingly, the Tribunal finds that s.36(3) does not apply.
Conclusions
121. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).
122. The Tribunal is satisfied that the second named applicant is the daughter of the first named applicant and that she is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, she will also be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
123. The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(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.

Tania Flood
Member

[2018] AATA 434

30 January 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction