1507404 (Refugee)

[2018] AATA 1428

1507404 (Refugee) [2018] AATA 1428 (27 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507404

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:27 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958.

Statement made on 27 April 2018 at 12:10pm

CATCHWORDS

Refugee – Protection Visa – India – Federal Circuit Court remittal – Particular social group – Elderly widowed women in Punjab – Faces a real chance of gender-based discrimination – State protection not available – Relocation not reasonable

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MIMAC v SZRHU [2013] FCAFC 91
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa on 14 March 2013 and the delegate refused to grant the visa on 28 November 2013.

3. The Federal Circuit Court Australia remitted by consent the decision of the Refugee Review Tribunal (RRT) to affirm this decision on 26 May 2015.

4. On 2 June 2015, the applicant’s representative wrote to the Tribunal advising that the applicant’s daughter and grand-child had proceedings on foot in the Federal Circuit Court (FCC) appealing against the Tribunal’s decision in their case. The request was made that given the close inter-relation between the claims of the applicant and her daughter, that further consideration of this case be suspended until her daughter’s case was heard in the FCC. The representative further requested that a hearing for the applicant take place in Melbourne to enable her to appear in person, rather than by video link, noting that the applicant was an elderly woman suffering from multiple medical complications from her advanced age. It was also noted that the applicant has received no formal education and has limited facility in her native language of Punjabi let alone with English, and has never before participated in legal or administrative proceedings.

5. The Tribunal was satisfied that there is an inter-relationship between the applicant’s circumstances and those of her daughter and notes that the FCC made a decision to remit the applicant’s daughter’s case for reconsideration. The Tribunal was further satisfied that the applicant is now [age] years old and as discussed below is in poor health and largely bed-ridden. The Tribunal therefore considered whether the evidence and argument before it was such as to enable the Tribunal to make a decision on the papers. In these circumstances, the Tribunal is proceeding to make a decision on the papers before it.

6. The applicant was represented in relation to the review by her registered migration agent.

   RELEVANT LAW

7. 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

8. 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).

9. 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.

10. 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.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

    Particular social group

18. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

19. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

    Relocation

20. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

21. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Protection Obligations

22. 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. They provide as follows:

    Protection obligations

    (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

    (4) However, subsection (3) does not apply in relation to a country in respect of which:

    (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

    (a) the country will return the non-citizen to another country; and

    (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A) Also, subsection (3) does not apply in relation to a country if:

    (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

23. This means 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.

24. The Full Federal Court in MIMAC vSZRHU [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 to any particular correlative duty upon the state in question.

25. 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).

    Complementary protection criterion

26. 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’).

27. ‘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.

28. 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

29. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm on return to India. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

31. The applicant provided a written statement to the Tribunal of 15 February 2016 and it is indicated the applicant relies on her Statutory Declaration of 10 February in connection with her review application to the Tribunal differently constituted’ as background to her circumstances.[1] On 26 April 2018, the applicant’s representative submitted that the applicant’s claims relate to the same circumstances as those described in the statement to the Tribunal of her daughter dated 11 July 2017 and submissions of 10 July 2017 and further material provided to the Tribunal on 29 August 2017.

    [1] AAT1319018 ff. 81 – 85.

32. The applicant’s passport indicates she was born [date], [Village 1], Punjab. [2] However, in her written statement the applicant states she was actually born in Pakistan and that her parents moved to [Village 1] after partition and that the details of her birth may not be completely accurate. The Tribunal is satisfied that the applicant can be identified using these details and for the purposes of this decision the Tribunal accepts the applicant’s birthdate is as stated.

    [2] [DIBP file number deleted] f. 11.

33. In her statement of 15 February 2016 in connection with review conducted by the Tribunal presently constituted, the applicant claims she is getting old and will not be able to manage her medical issues by herself. A medical certificate dated 26 April 2018 from the applicant’s treating doctor, [certifies] that the applicant is suffering from [a medical condition] for which she is being treated but that she is not tolerating the medication well. It is also certified that the applicant suffers from multiple medical issues and a summary is provided. These include [various medical issues]. [3] These conditions render the applicant bed-ridden most of the time. 

    [3] AAT1319018 ff. 99 - 100.

1. It is submitted that as widowed and without family support in India, she fears gender based harm by reason of her membership of the ‘particular social groups’ cognisable with Indian society including ‘elderly/widowed women in Punjab’. In particular, the applicant fears harm from her late husband’s family who blame the applicant for assisting her daughter to leave the marital home against the interests of her late son-in-law, and it submitted that elderly or widowed women in Punjabi society face susceptibility to extreme levels of violence and that the applicant would also face persecution as a lone and defenceless woman returning to the Punjab even in the absence of these factors.[4]

   [4] AAT 1507404 ff. 96 – 97.

   Country of reference

2. The applicant claims to be an Indian national.  Based on copies of her passport submitted to the Department, the Tribunal finds that India is her country of nationality for the purposes of the Refugee Convention.

   Assessment of claims

3. The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm on return to India. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

4. On the evidence of the applicant, the Tribunal accepts the applicant is [age] years old, and suffering from a range of age related health problems, that she has been admitted to hospital because she has problems breathing arising from asthma and that she is now largely bed-ridden. The applicant has stated that she cannot remember things anymore, and the Tribunal accepts this is true. The Tribunal accepts the applicant is no longer able to look after herself.

5. The Tribunal accepts the applicant’s husband died [in] October 2012, leaving the applicant widowed. The Tribunal accepts the applicant’s elder brothers have passed away and that the applicant is unable to call upon her younger brothers, who are more than [age] years old, to protect her from the hostility of people in her village as discussed below, or to provide her with the care she needs. The Tribunal further accepts the applicant’s submission that her sons, who according to Indian cultural norms, would be expected to care for her are resident in Australia.

6. The Tribunal accepts the applicant’s oldest daughter lives with her husband’s family in Punjab. The Tribunal accepts the applicant’s claim that it is not acceptable in the Sikh culture for a daughter to take her parents into the in-laws home. The Tribunal also accepts that the applicant has another daughter, currently in Australia, who is also a widow and who has been denied access to the marital home by her late husband’s family. The Tribunal accepts the applicant’s evidence that her youngest daughter’s late husband’s family harbour hostility toward the applicant’s family because this daughter left the marital home and they blame her for the alcoholic decline and death of her husband.

7. In all these circumstances, the Tribunal accepts the applicant is vulnerable woman and widow from the Punjab.

8. The Tribunal has had regard to the following country information, particularly advice in the DFAT Thematic Report, Indian State of Punjab concerning the status of women in Punjab, indicating that discrimination and violence against women in Punjab is systematic and normalised:

   Women

   3.27 There is a strong cultural preference across India, including in Punjab, for male children. This cultural bias encourages female infanticide and sex-selective abortions, which remain highly prevalent despite being illegal. Punjab has the lowest sex ratio in the country for children aged six and under (see ‘Demography’, above).

   3.28 Domestic violence is highly prevalent across Punjab. According to a 2014 study by the UN Population Fund (UNFPA) and the International Centre for Research on Women (ICRW), 43 per cent of men in Punjab and Haryana states reported being perpetrators of intimate partner violence, including 22 per cent who reported perpetrating physical violence against their partner (the term ‘intimate partner violence’ includes both physical and non-physical or psychological violence). Around 55 per cent of women in these states reported being the victim of intimate partner violence. A range of interlocutors—including from government, civil society, religious organisations, academia, the legal profession and the diplomatic community—told DFAT that domestic violence is highly prevalent and largely accepted or ignored by the broader community. Rape within marriage is not currently a crime in India.

   3.29 While illegal under Indian law since 1961, some communities across India, including in Punjab, retain an expectation that a bride’s family will provide a dowry consisting of both money and items such as household goods. In some cases, where there is unwillingness or inability to meet dowry demands following marriage, the bride may be subjected to violence or harassment by the groom or his family. In extreme cases, this can result in the bride’s murder or suicide. While official statistics on the prevalence of dowry-related violence and harassment in Punjab are unavailable, between January and October 2013 the Punjab government’s telephone reporting service recorded 205 reports of dowry harassment out of a total of 3,339 reports of harassment or violence against women. Dowry harassment is likely to be significantly under-reported.

   3.30 Sexual harassment is highly prevalent in Punjab (as in other states). Several credible diplomatic and human rights sources told DFAT that women in Punjab are highly likely to regularly face some form of sexual harassment in public, including inappropriate staring, touching, verbal harassment or worse. In extreme cases, women who have rejected the advances of men may be subjected to serious assault, including possible acid attacks. For example, six teenage girls reportedly had acid thrown over them while walking home from school in Gurdaspur district in March 2016. The attacker had repeatedly harassed one of the girls over a long period of time prior to the attack.

   3.31 Serious sexual assaults are highly prevalent in Punjab. On 27 April 2016 a 26-year-old mother of three children was gang-raped in her home in Ludhiana (a city in central Punjab) and died after being thrown off the roof by the perpetrators. According to media reports, in the 45 days prior to this incident 15 cases of sexual assault of girls under the age of 12 were reported in Ludhiana alone. These cases included a 26-year-old man who was arrested for the attempted rape of a three-year-old girl. While serious sexual assaults are increasingly attracting media attention and condemnation from the community, a great deal of community apathy remains and many people do not recognise the prevalence of attacks.

   3.32 Child, early and forced marriage (as distinct from arranged marriage entered into by consenting adults) occurs in Punjab. While reliable statistics on the prevalence of these marriages are not available, credible diplomatic and human rights sources told DFAT they are common, and can involve girls as young as eight or nine years of age.

   3.33 Women are also greatly underrepresented in the Punjabi labour force, even in the context of low female labour force participation in India as a whole. According to the IMF, Punjab has the fourth-lowest female labour force participation rate of all Indian states and union territories at around 10 per cent. While some women serve in positions of power at the state and national level up to and including the level of Prime Minister, women tend to be significantly underrepresented in key positions in both government and business in Punjab. At the 2012 state legislative assembly elections, 14 women were elected out of a total of 117 seats. The caste system and socio-economic factors intersect with gender discrimination to create significant barriers to female participation in employment and in society.

   3.34 DFAT assesses that women in Punjab face a high risk of domestic violence and sexual harassment, and a moderate risk of serious sexual assault. DFAT further assesses that women in Punjab face a high risk of societal discrimination throughout their lives.[5]

   [5] DFAT Thematic Report: Indian State of Punjab, 7 December 2016, pp. 14 – 15.

9. The DFAT Thematic report also references DFAT’s Country Information Report on India from 15 July 2015, assessing that the information contained in it about women’s rights remains valid. The DFAT India Country Report, 15 July 2015 states:

   3.50 There is no uniform civil code in India which means that under India’s system of personal laws, rights for women on issues of marriage, divorce, custody, inheritance and succession can differ between religions and states. This results in persistent discrimination for the majority of women in India.

   …

   3.52 In many parts of India but particularly in the northern states, daughters may be considered a burden, because women often: do not engage in paid work or bring in comparatively less income than men; move with their new husband into his family home; and do not care for their biological parents in their old age. Marriage costs in India are high and are generally borne by the bride’s family. [6]

   [6] DFAT India Country Report 15 July 2015, p. 15.

10. Emphasising the difficulty for a single woman in establishing an independent household, an Indian legal expert wrote in a 2010 Frontline article:

    …most separated or deserted women, usually along with their children, are forced to live with members of their natal family, such as parents and brothers, and are financially dependent on them. Often, they are not welcome even there and live as outcasts in the family.

    An in-depth survey of around 400 separated, deserted or divorced women done by the Economic Research Foundation, Delhi, in 2007-08 shows that only a minuscule number of them are able to live alone.[7]

    [7] The article notes that, at the time of writing, the author was a senior advocate of the Supreme Court, a former member of the Law Commission of India, and the legal convener of the All India Democratic Women’s Association. See Singh, K 2010,’Left in the lurch’, Frontline,  27 March – 9 April < Accessed 24 November 2010.

11. The Tribunal has also had regard to the report of the UK Home Office, Country Policy and Information Note – India: Women fearing gender based harm/violence from 2015;

    1.3.7 India is multicultural and diverse. In general however, and especially in rural areas where most people live, communities tend to be patriarchal, with deep-rooted stereotypes relating to gender roles. Although the Indian government has launched various campaigns to raise awareness and to change people’s attitudes, women continue to experience widespread discrimination and violence, which is manifest in several ways.

    1.3.8 Gender based violence at the hands of family or community members is a serious and widespread problem in India. A study published in 2014 found that 52 per cent of the women surveyed, in the 18-49 age group, had experienced some form of violence at least once in their lifetime. (See Violence against women in the country information section).

    …

    1.3.11 The general level of discrimination against women and girls in India does not in itself amount to persecution or a real risk of serious harm. Some women may, however, be able to demonstrate a real risk of gender based persecution/harm on return to India. Each case must be determined on its own facts. Decision makers must take particular account of any past persecution or ill-treatment, the likelihood and ability of the actors of persecution to pursue the person on return to India. All relevant factors should be taken into account, including the age, health, educational and economic status, job skills, religion, caste, ethnicity, and the individual circumstances of the person. [8]

    [8] UK Home Office, Country Policy and Information Note – India: Women fearing gender based harm/violence, April 2015 p. 6.

12. In respect to discrimination against women, the UK Home Office refer to the Bertelsmann Foundation observed in their BTI Transformation Index 2014 report:

    Discrimination [against] women remains a major issue in India. Especially in the still extremely patriarchal north of India, women tend to be discriminated against from the very beginning within their families. With poor families, this means worse access to food and sanitation. As far as access to education is concerned, some substantial progress has been made in primary and secondary education, but the ratio of female-to-male enrolment in tertiary education is still 72.6%. According to a 2011 report by the National Statistical Organization, the worker population ratio in rural areas was 55% for men and 26% for women; in urban areas it was 54% for men and 14% for women.[9]

    [9] UK Home Office, Country Policy and Information Note – India: Women fearing gender based harm/violence, April 2015 p. 12.

13. Further, the Tribunal has considered independent information before it, discussed with the applicant, that single women, including widows, are vulnerable and often stigmatised and marginalised.[10] Reports indicate that widows comprise the largest category of single women, and face 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.[11] Authoritative independent reports also indicate that widows frequently experience tensions with their families for economic reasons, as they are another mouth to feed and could lay claim to a portion of the family property.[12] It is reported that widows are also often denied or dispossessed of property by their in-laws after the death of their spouse.[13] Information submitted by the applicant also indicates that women face opposition in exerting their claim to land from male relatives or community members who are more economically, socially and physically powerful than they are.[14]

    [10] UK Home Office, Country Policy and Information Note – India: Women fearing gender based harm/violence, April 2015 p. 38.

    [11] Executive Summary – Report on the Status of Women in India, High Level Committee on the Status of Women, July 2015, CISEC96CF13102, p.37

    [12] India’s invisible widows, divorcees and single women, BBC News, 7 March 2014, CX322162

    [13] Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo: Addendum: Mission to India, A/HRC/26/38/Add.1, UN Human Rights Council, 1 April 2014, CIS28582, p.7

    [14] Rural Development Institute for the World Justice Project, Women's Inheritance Rights to Land and Property in South Asia (2009), p35, available at:

14. The Tribunal has considered the country information before it and the circumstances of the applicant as accepted and having regard to the applicant’s medical reports. The Tribunal accepts the applicant is aged and frail and faces discrimination and hostility on return to Punjab. In the circumstances of the applicant and having regard to the non-exhaustive examples of serious harm in s.91R(2) of the Act, the Tribunal finds that the treatment the applicant faces amounts to serious harm. The Tribunal finds the harm the applicant fears amounts to persecution.

15. Given the country information, the Tribunal finds that the harm the applicant fears is for reasons of her membership of a particular social group consisting of “single/widowed women in Punjab”, which the Tribunal accepts is a particular social group based on the country information and applying the principles set out in Applicant S. The Tribunal finds that the applicant’s membership of the particular social group of single/widowed women in Punjab is the essential and significant reason for the persecution, and that the persecution involves ‘serious harm’ as it amounts to significant physical harassment and significant physical ill-treatment and that the persecution involves systematic and discriminatory conduct.

    State protection

16. The Tribunal has considered whether effective state protection will be available to the applicant in her circumstances. In this consideration, the Tribunal has had regard to DFAT advice of  December 2016 relevant to the Punjab:

    Police

    The Punjab police force is a state-run force with around 76,000 personnel. Multiple credible sources—including from civil society representatives, journalists, lawyers and members of the diplomatic corps—told DFAT that Punjabi police capacity is very low, particularly in investigative capacity, and the police have a poor reputation, with high levels of corruption. These sources reported that police are involved in the drug trade, as well as extortion of suspected LGBTI people and incidents of extra-judicial killings, known as ‘fake encounters’ (see ‘Arbitrary Deprivation of Life’, above). There are also perceptions of political interference in policing, with reports of large scale movement of senior officers following changes in government.

    Several credible sources told DFAT of the widely held perception that police in Punjab are able to act with impunity. Under Section 197 of the Indian Criminal Procedure Code 1973, no judge, magistrate or public servant (including police officers) can be convicted of an offence committed while acting in their official capacity without the permission of the relevant government—in the case of the Punjab Police Force, the ‘relevant government’ being the state government. Permission for a police officer to be convicted is rarely given, particularly when the person in question is a senior officer. As a result, few senior police have been convicted of crimes committed during the period of separatist militancy in Punjab.

    Progress on police reform has been slow. The Punjab Police Act 2007 has reportedly had little impact in changing police culture or implementing structural reforms. Secondary legislation in the form of a guide to policing has been developed but not yet introduced. Police service delivery has improved in some areas, including by the introduction of community policing programs. Some police investigative training has also been conducted, including training run by the UK, but overall capacity remains low, as does public confidence in the police.[15]

    [15] DFAT Thematic Report: Indian State of Punjab, 7 December 2016, pp. 20.

17. As discussed at hearing, in its 2013 World Report, Human Rights Watch noted that:

    Government initiatives, including police reform…languish due to poor implementation. Many women, children, Dalits (so called untouchables), tribal communities, religious minorities, people with disabilities, and sexual and gender minorities remain marginalized and continue to suffer discrimination because of government failure to train public officials in stopping discriminatory behaviour.[16]

    [16] Department of Immigration and Border Protection, Issues Paper – State Protection in India, February 2015.

18. According to the US Department of State (US DOS), during 2015

    [t]he 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.[17]

    [17] US Department of State 2016, India - Country Report on Human Rights Practices 2015, 13 April < <OGD95BE926246> 

19. Submissions on behalf of the applicant point to the prevalence of reported sexual violence cases in Punjab and propose that that the level of protection offered by the state authorities does not ameliorate the real chance of serious harm to women without male protectors, and the point to the inadequacy of legal protection, limited enforcement and on occasions complicity of state authorities in crimes against women.

1. On the basis of the country information before it, the Tribunal finds that many within the Indian security forces – including the police and the military – are poorly trained, corrupt, ineffective, and at times responsible for human rights abuses. The Tribunal accepts that many women remain marginalised and suffer discrimination from the state. Considering the country information overall, and given the applicant’s individual circumstances, the Tribunal finds that the applicant would not have access to a level of state protection in accordance with the principles laid down in MIMA v Respondents 152/2003.

2. Taking account of the country information and the particular circumstances of the applicant, the Tribunal is not satisfied that the State is willing to offer effective protection measures to the applicant, nor is the Tribunal satisfied that the applicant would be able to access effective protection measures if returned to India now or in the foreseeable future. 

   Relocation

3. The Tribunal accepts the applicant cannot safely return to Punjab because she is a single woman/widow.  The Tribunal has also considered the submission that the applicant cannot reasonably relocate to another region of India to escape the harm she fears in Punjab. It is submitted that as a widow, the applicant will be without family or state care and that as such she will denied the ability to subsist throughout India. It is further submitted that discrimination and violence against women is so prevalent throughout India that it cannot be said that any region within the country is free of the real chance of serious harm to the applicant.

4. The Tribunal has considered country information put to the applicant indicates that:

   In general it will not be unduly harsh for a woman, especially if single and without children to support, who is able to access accommodation or is educated or skilled or wealthy enough to be able to support herself, to relocate. However, careful consideration must be given to the relevance and reasonableness of internal relocation on a case by case basis, taking full account of the individual circumstances of the particular person.[18]

   [18] UK Home Office, "Country Information and Guidance: India: Women fearing gender-based harm/violence", p. 8.

5. The Tribunal has taken into account information set out above that single and widowed women are stigmatised in Indian society, and notes country information that single women can have difficulty accessing government services and accommodation.[19]  Most relevantly however, the Tribunal takes into account that the applicant is a vulnerable, aged and unwell person without support in India and without access resources that could provide her with protection. The Tribunal finds this renders the applicant as a widow without family protection vulnerable to discrimination and violence such that she will be denied the ability to subsist. The Tribunal further finds that in the applicant’s circumstances where she no access to accommodation, is uneducated and has not wealth to support her, relocation to another area of India is not reasonable, in the sense of practical.  In all these circumstances, the Tribunal finds that it would not be reasonable for the applicant, to relocate to another part of India to avoid the harm she faces in her home area. 

   [19] DFAT Country Information Report – India, Department of Foreign Affairs and Trade (DFAT), 15 July 2015, CISEC96CF12827, p.22 .

6. The Tribunal finds there is a real chance that the applicant faces persecution for reasons of her membership of the particular social group of single/widowed women in Punjab now or in the foreseeable future, if she returns to India.  The Tribunal finds the applicant has a well-founded fear of persecution on return to India.

   Third country protection

7. The Tribunal discussed has considered the further issue in this case arising from the international bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950.  Article 7 of this 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 of trade and commerce, movement and other privileges of a similar nature.

8. In SZRHU the Court was considering the operation of section 36(3) in relation to a Nepalese national’s right to enter and reside in India under the Treaty of Peace and Friendship between India and Nepal 1950 (“the Treaty”), but the Tribunal sees no reason why the reasoning of this decision should not apply equally to the case of an Indian’s right to enter and reside in Nepal.  Buchanan J held the correct course for the Tribunal to adopt is as follows:

   [The RRT] should pay regard to the actual terms of the Treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test.

9. As noted in SZRHU, article 7 of the treaty relevantly provides as follows:

   The Governments of India and Nepal 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.

10. 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.[20]  The Nepali government Nepal Immigration website provides that Indian citizens will be allowed to travel to Nepal on the basis of a number of identity documents including a passport.[21]

    [20] Searches conducted on CISNET, think tanks, academic journals, open source search engines, human rights organisations, non‑government organisations, and international news outlets.

    [21] Nepal Immigration n.d., ‘Information for Indian Citizens’ update_news=information-for-indian-citizens Accessed 6 January 2014.

11. The website of the Embassy of Nepal in New Delhi states the following regarding Indian nationals entering Nepal by air at Tribhuvan International Airport, Kathmandu:

    Visa for Indian Nationals:

    Effective from 1st October 2000 an Indian citizen over the age of 10 years travelling between India and Nepal by air would have to keep in his possession any of the following documents to establish his/her identity as an Indian citizen.

    1. Valid Indian passport; or,

    2. Photo identity card issued by the Government of India, or any State Government or Union Territory Administration in India, or the Election Commission of India; or,

    3. Emergency certificate issued by the Embassy of India in Nepal.[22]

    [22] Embassy of Nepal, New Delhi n.d., ‘Visa Information’ Accessed 6 January 2014.

12. According to a 2013 article by Professor of Economics and Executive Director of the Centre for Economic and Technical Studies in Nepal Hari Bansh Jha, ‘there is no need of passport or visa formalities among the border inhabitants or other nationals of Nepal and India. The nationals of one country can enter into the other country through the border not merely through the checkpoints but through any point’.[23] This article states that while there are 22 official checkpoints along the Nepal-India border, citizens of Nepal and India ‘can cross over the border without any restriction from any point’. Nationals of other countries ‘require both an entry and exit visa and they must cross over the border through six immigration points’.[24] The article also comments on the ability of Nepalese and Indian citizens to escape from one country to the other, stating that when ‘there is any political upheaval in one country, people easily escape by crossing over the border’.[25]

    [23] Jah, H 2013, ‘Nepal’s Border Relations with India and China’, Eurasia Border Review, Spring, p. 63 Accessed 6 January 2014.

    [24] Ibid.: 67.

    [25] Ibid.: 68.

13. The applicant holds an Indian passport valid until [2021]. The passport indicates that she is a national of India. Having regard to this evidence, and to the terms of the treaty and the administrative arrangements for entry as summarised in the above country report, 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.

14. The Tribunal has therefore considered whether the applicant otherwise faces a real chance of persecution in Nepal. The Tribunal has had regard to country information relating to the situation of women in Nepal, which indicates that single women without familial support face considerable difficulties. In 2004 human rights practitioner Jannie Lasimbang, noted that Hinduism has:

    … built-in characteristics that are discriminatory towards women, indigenous peoples, minorities and Dalits. Nepal is also a male-dominated and patriarchal society.”[26]  She observed that under the constitutional Hindu state which existed in Nepal prior to 2006, “[w]omen, as the Hindu ethical code says, have to follow their fathers when unmarried, their husbands when married, and their sons when widowed.[27]

    [26] Lasimbang, J 2004, ‘Indigenous Women and Activism in Asia: Women Taking the Challenge in Their Stride’, Indigenous Affairs, No. 1-2/04 See also: Lasimbang, J 2004, ‘Indigenous Women and Activism in Asia: Women Taking the Challenge in Their Stride’, Indigenous Affairs, No. 1-2/04 See also:

15. Freedom House noted in their Countries at the Crossroads 2012: Nepal report that while Nepal has made considerable gains in promoting formal gender equality, some serious issues remain and that the move to a secular state has not removed the influence of Hindu ideology.  The report observes that:

    The state has formally passed measures to address gender discrimination, but these have yet to take hold in practice, perhaps due to lack of political will. Gender-based discrimination is socially entrenched in patriarchal traditions, in which women do most household chores and are viewed as inferior to men. Despite the formal declaration of a secular state in 2006, the polity and its laws are still influenced by the Hindu ideology of the caste hill elite. …. Violence against women, especially within the home, is also common.[28]

    [28] Accessed 5 May 2014.

16. In 2016, DFAT reported in their Country Information Report of Nepal that:

    3.41 The 2015 Constitution precludes discrimination on the basis of gender, reserves seats for women in the Federal Parliament and establishes a National Women commission to provide advice to Government.

    3.42 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. The male to female sex ratio at birth is 1.07 and the female fertility rate is 2.4. Women in Nepal are eligible to receive a mandatory 52 days of fully paid maternity leave from their employers.

    3.43 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.

    3.44 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).

    3.45 Women are often excluded from economic decisions in the home. Although more women are heading households and sustaining the rural economy, female-headed households in Nepal are less likely to own land, and where they do, these holdings are likely to be smaller than male-headed households. Approximately 8.1 per cent of land is held by women, and changes to the law in 2012 have enabled a 30 per cent discount on the registration fee when land is registered under the woman’s name. Pursuing property rights through the courts can be expensive and time-consuming.

    3.46 Women of the poorest castes and geographic areas have the lowest health and education development indices in Nepal. Women, particularly Dalit and indigenous women, are poorly represented in high-level decision-making positions, although women account for 29.9 per cent of national elected representatives.[29]

    3.47 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 of. 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.

    3.48 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.

    3.49 The 2009 Domestic Violence Act provides for monetary compensation and psychological treatment for victims, but authorities generally do not prosecute domestic violence cases. A 2012 government survey found that 48 per cent of women had reported that they had experienced violence at some time in their lives, with the majority of perpetrators being those who were closest to them, particularly intimate partners. A majority of women (61.3 per cent) were unaware of any laws that address gender-based violence (GBV) and only 24.8 per cent of women were aware of services available to survivors of GBV.

    3.50 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. [30]

    [29] DFAT, Country Information Report, Nepal, 21 April 2016, p. 14

    [30] DFAT, Country Information Report, Nepal, 21 April 2016, p. 15

17. The 2011 report of the United Nations High Commissioner for Human Rights on the human rights situation in Nepal elaborated on the barriers to access to justice for women:

    42. Sexual and gender-based violence also remain prevalent in Nepal. While the Government, civil society and other stakeholders are placing greater focus on these issues, a number of factors, including religious and cultural customs, discriminatory legal provisions and a patriarchal institutional approach to the status of women, inhibit access to justice. Consequently OHCHR-Nepal has found that many alleged cases of gender-based violence are not even reported to the authorities concerned, as victims, fearing rejection by their family and reprisals, are unwilling to register a complaint.

    43. The lack of access to justice for victims of caste-based discrimination and sexual and gender-based violence is often a result of the failure by State authorities to treat criminal cases in the manner prescribed by law, and the propensity to resort to "mediation" processes outside the criminal justice system. Such an approach contributes to widespread impunity for the perpetrators of discriminatory acts.

    …With regard to gender-based violence, both sexual assault and violence against women accused of practicing witchcraft are also criminal offences that require the police to register a case ex officio. However, instances of the police taking proactive steps in this regard are rare, and even when a victim manages to report a crime to the police, there are frequent examples of the police delaying the registration process, including by insisting upon a medical report, even though this is not a legal requirement for the registration of a case…[31]

    [31] United Nations High Commissioner for Human Rights, 2011, Report of the High commissioner for Human Rights on the human rights situation and the activities of her office, including technical co-operation, in Nepal, A/HRC/19/21/Add.4 16 February, A.HRC.19.21.Add.4_English.pdf Accessed 5 May 2014.

18. The Tribunal has found above that if the applicant relocated within India she would do so as an elderly widow with no family protection or means of economic support. On the evidence before it, the Tribunal finds that she would also move to Nepal as an aged and vulnerable widowed woman.  The applicant has never been to Nepal and has no family or other networks or support mechanisms there.  The applicant is uneducated and has significant age related health issues. On the basis of the country information above, the Tribunal finds that she would be likely to experience substantial difficulties accessing accommodation and appropriate care and that she faces a real chance of gender-based discrimination which would amount to serious harm.

19. Considering the country information set out above, the Tribunal finds that the applicant would not have access to a level of state protection in accordance with the principles laid down in MIMA v Respondents 152/2003.   

20. Having regard to the country information cited above the Tribunal finds that “widowed women in Nepal without family support” constitute a particular social group in Nepal.  The Tribunal finds that the harm faced by the applicant would be for reason of her membership of the particular social group of widowed women in Nepal without family support. The Tribunal finds that the harm would be systematic and discriminatory as it would be directed against her for reason of her membership of the particular social group.  On the evidence available and considering her individual circumstances and having regard to the country information cited above, the Tribunal finds that there is a real chance that should the applicant move to Nepal the applicant would suffer serious harm amounting to persecution. 

21. In light of the findings above, I find that s.36(4) is enlivened in this case. Accordingly, the Tribunal concludes that s.36(3) does not apply to the applicant.

    CONCLUSION

22. 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).

    DECISION

23. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Amanda Paxton
    Member