1508497 (Refugee)

[2017] AATA 794

1508497 (Refugee) [2017] AATA 794 (26 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508497

COUNTRY OF REFERENCE:                  India

MEMBER:Alison Murphy

DATE:26 April 2017

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.

Statement made on 26 April 2017 at 11:23am

CATCHWORDS
Refugee – Protection visa – India – Social group – Women – Domestic violence – Violent husband – Arranged marriage – Relocation not possible – Woman on her own – No state protection – Suicide risk

LEGISLATION
Migration Act 1958, ss 36, 65, 91R(2), 499
Migration Regulations 1994, Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379

MIMA v Respondents S152/2003 (2004) 222 CLR 1

Mocan v RRT (1996) 42 ALD 241

SZATV v MIAC (2007) 233 CLR 18

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 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, is a [number] year old woman from Punjab, India.  She applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] June 2015.

3.    The applicant appeared before the Tribunal on 3 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Ms B] who attended the hearing and [Mr C] who gave evidence by telephone from Ludhiana, Punjab in India.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7.    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.

8. 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’).

9. 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.

1. The issue in this case is whether the applicant meets any of the criteria set out in section 36(2). For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.

THE APPLICANT’S CLAIMS

Background

1. The applicant first arrived in Australia [in] April 2008 as the holder of a [temporary] visa valid until [date] October 2009 and was later granted a further [temporary] visa and a number of bridging visas.  She remained in Australia without a visa between December 2011 and June 2014.  Departmental movement records indicate she has departed Australia on four occasions:

• [date] August 2008 until [date] August 2008;

• [date] April 2009 until [date] June 2009;

• [date] August 2009 until [date] August 2009; and

• [date] June 2010 until [date] June 2010.

1. The applicant first made an application for a protection visa [in] October 2011, stating that she feared being killed by her husband from whom she was seeking a divorce.  Her application was later found to be invalid by a departmental officer.

2. She lodged her current protection visa application [in] June 2014. She claims to fear harm from her ex-husband who has threatened to kill her as well as from religious groups, the Indian police and Indian society because she is a single woman. She states that she has converted from her Sikh faith to a Jehovah’s Witness and that Jehovah’s Witnesses have been arrested and attacked in Punjab, including by the police.  She states that her parents have both passed away and she has no-one to protect her.

3. In support of her application, the applicant provided the following documents:

• an affidavit from her husband [Mr D] dated [in] April 2015, who states that he dispossesses his wife of his property and does not agree to her living in his house;

• a signed and witnessed statement dated [in] May 2015 in which she directs that no blood transfusion be given to her under any circumstances, even if necessary for her life or health, in exercise of her right to decide medical treatment in accordance with her deeply held values and convictions;

• a death certificate in respect of her mother indicating she died [in] August 2010;

• an extract of an article titled “Violence Against Women” and dated September 2001.

The delegate’s decision

1. The delegate did not accept the applicant was owed protection obligations by Australia.  The delegate did not accept the applicant feared harm from her former husband.  The delegate accepted the applicant had genuinely converted to the Jehovah’s Witness faith, but did not accept she faced a real chance of harm for this reason if returned to Punjab.

The review application

1. The applicant provided the following additional documents to the Tribunal:

• A written statement from [Mr A] dated [in] February 2017;

• A BBC News article 100 Women 2014: Violence at home is India’s failing;

• A medical report from [Dr E], consultant psychiatrist, dated [in] March 2017; and

• Post-hearing information about the situation for Christians in India.

Assessment of claims

1. It is not in dispute that the applicant is an Indian national who travelled to Australia on an apparently genuine Indian passport as the holder of a [temporary] visa.  The Tribunal finds that the applicant is an Indian national and has assessed her claims against that country.

Credibility

1. The Tribunal found the applicant to be a credible witness.  Her evidence in these proceedings was materially consistent with information previously provided to the Department of Immigration and Border Protection as well as independent sources about the situation in India. 

2. Her claims are also supported by medical evidence from [Dr E] ,consultant psychiatrist.  [Dr E] specialises in gender and family violence in the Indian community.  Among other things she [holds several senior professional positions].  She has received [a professional award][1].

   [1] [Information deleted]

3. [Dr E] sets out the applicant’s personal history in respect of her husband and family situation in a manner which is consistent with the applicant’s own evidence.  She undertook a mental state examination of the applicant, describing her as [displaying symptoms]. She is diagnosed with [conditions] because of her fears of being murdered by her former husband and is grieving the loss of her murdered [Family Member F], deceased mother and abandoned [relative].  [Dr E] states in her report that she considers her a genuine suicide risk if she has to return to India and continues to treat her with medication and supportive therapy.

The applicant’s personal background

1. The applicant gave evidence she and her [Family Member F] were raised by their single mother after their father abandoned the family before the applicant was born.  They lived in the home of the applicant’s [relative, Mr C].  The applicant also has [another relative] with whom she is not in contact.  The applicant finished school in [year] and studied for [number] years at college, working as a [occupation] while living at home with her mother and [Mr C].

2. The applicant gave evidence her [Family Member F] was married in a marriage arranged by her mother and [relative] in 2000 or 2001.  She didn’t see much of her [Family Member F] after the marriage and her [Family Member F] told her mother that her husband was violent and abusive towards her.  In 2002 or 2003 her [Family Member F] left her husband and returned to live with her mother. Her [Family Member F]’s husband’s parents travelled to the applicant’s mother’s home.  They apologised for his behaviour and promised it would not happen again.  A few days later her [Family Member F]’s husband came to the home and apologised, taking her [Family Member F] back to his family home again. 

3. A few days later her [Family Member F] rang her mother and said her husband was even more violent than before and so was her mother-in-law.  The applicant and her mother travelled to the home of her [Family Member F]’s husband to collect her on the same day, arriving in the evening.  When they arrived the husband’s family told them the [Family Member F] had killed herself and they had already disposed of the body.  Neighbours told them that the [Family Member F] had been poisoned by the family and locked in a room to die, but would not say so publicly.  The husband’s family did not report the [Family Member F]’s death and the applicant and her mother did not report their belief she was murdered to the authorities, believing they had no evidence.  The [Family Member F]’s [child], aged [age] at the time of [Family Member F]’s death, was abandoned by [the child’s] father and is being brought up by a [relative] in Punjab.  The Tribunal accepts the applicant’s account of her [Family Member F]’s death.

4. The Tribunal expressed concern that the applicant would agree to an arranged marriage given her [Family Member F]’s experience.  The applicant gave evidence that she always knew and accepted that her mother would arrange her own marriage, although she had no particular desire to marry.  She gave evidence that when her mother was diagnosed with [medical condition] in about April 2008, she wanted to see her daughter married before she died and she wished to obey her mother. She returned to India in August 2008 in order to enter into a marriage arranged by mother, marrying her husband [Mr D] shortly after she arrived.  The applicant’s mother gave her husband’s family gifts of gold and furniture at the wedding as is customary.

5. The Tribunal accepts each of these things to be true.

The applicant’s fear of her former husband

1. The applicant gave evidence that the first few days after her marriage went well.  She then found out that they had asked her mother for dowry over and above the gold and furniture they had been given as wedding gifts, demanding a further [number] rupees in order to apply for their son to be joined to the applicant’s [temporary] visa.  They would not allow her to leave their home to visit her mother who was very ill with [her condition].  Her husband wanted her to apply to have him added as to her [temporary] visa which she was happy to do, but her husband withdrew the money saved by the applicant’s mother and [Mr C] to show that she had sufficient financial capacity to support herself in Australia during her visa period.  His family also demanded a further $[amount] in order that her husband could show financial capacity for his own visa application.  Her husband was drinking, demanded she cook for his friends, constantly found fault and was violent towards her.  He would not allow her to visit her mother, insisting she return to Australia and apply for his visa.  She spoke to her mother about his violence, but her mother said it was only early days and might get better.  The applicant returned to Australia to continue her studies at the end of August 2008 and was only permitted to visit her mother briefly on the way to the airport.

2. The applicant returned to Australia to continue her studies while her husband’s visa application was assessed.  It was rejected because the department was not satisfied that the applicant met the financial capacity requirements as the husband had withdrawn the money from their joint account and placed it elsewhere. The applicant returned to India in April 2009 for 6-7 weeks and they lodged another application for him to be joined to her visa.  During that visit her husband was furious because his visa application had been refused, hitting her every day.  Her mother had just had a serious operation for her [illness] and he did not allow her to visit her mother for a month.  His violence was so bad that she emailed the Department of Immigration to say that he was violent and she did not wish to add him to her visa.  The Department called them in for an interview and advised her in his presence that they had received an email from her indicating that she did not wish to add him to her visa.  The applicant was so scared of her husband that she told the interviewing officers that her email had been hacked and that she didn’t send the email and wished to proceed with the application.  The husband’s second visa application was rejected by the department. Her husband threatened to kill her mother.

3. Her husband moved into the house of her mother and [family member] when the applicant returned to Australia in 2009.  He was violent and abusive towards her when she visited in June 2010, throwing her onto some bricks and injuring her back.  Her mother saw the violence but it was too late.  She returned to Australia to continue her studies.

4. In 2010 the husband told the applicant's [relative, Mr C] that he needed to sell the house so that they could show financial capacity for the husband’s visa, promising to buy him more land to build another house.  The house was sold shortly before the applicant’s mother died of [her illness] and the family were permitted to stay there until she died in August 2010.  The applicant’s husband took the money from the sale of the house and did not purchase land for [Mr C] as promised. [Mr C] now lives in the home of a distant [relative].

5. The applicant has not returned to India since her mother’s death.  Initially after her return in 2010 her husband would ring her constantly, threatening her and swearing at her about the visa.  As he had taken all the money from their joint account and the sale of the house, the applicant was unable to meet the financial capacity requirements for her own visa which was refused.  At that time she had been finished a [course] and was about [number] months away from completing her [course].  She last studied in October 2010.

6. The applicant did not return to India as she was scared.  She changed her mobile number so her husband could not ring her and has had no direct contact with him since 2010.  Her husband has continued to ring her friend in Australia [Mr A] to ask about the applicant.  [Mr A] returned to Punjab and visited her husband in 2010 or 2011, asking him to give the applicant a divorce and allow her to move on with her life.  Her husband refused to divorce the applicant, telling [Mr A] that she had disrespected his family and when she returns he will kill her.  He said he would never give her a divorce because she would want his property.

7. [Mr A] attended the hearing and gave evidence to the Tribunal.  He confirmed that he had spoken to the applicant’s husband a number of times on the phone when he was unable to reach the applicant.  He gave evidence that the applicant had told him over a number of years about the violence she was experiencing at the hands of her husband and that he visited the husband in Punjab in 2010 or 2011, encouraging him to divorce the applicant and leave her to live her life.  He gave evidence that her husband refused to do so and was threatening towards himself and the applicant.  He stated that he stopped taking the husband’s calls after 2011 and the husband gradually stopped calling him regularly.  The husband again called him many times in a short period in 2015 until [Mr A] answered his call.  He demanded to know whether the applicant would try to get her dowry back.  [Mr A] implied that she might do that in the hope that this would facilitate a divorce.  The husband later emailed [Mr A] the affidavit referred to above disowning the applicant with instructions to give it to the applicant.  [Mr A] believes this was an attempt by the husband to ensure that the applicant has no claim on his property if she seeks a divorce.  The Tribunal accepts [Mr A]’s account of his interactions with the applicant and her husband.

8. The Tribunal also took evidence from the applicant’s [relative] in India, [Mr C].  [Mr C] confirmed the applicant’s husband had sold his property and he now lived at a relative’s place.  He said her husband was wild, always beating [the applicant] and demanding money.  He has not seen the applicant’s husband since the house was sold in 2010.  The Tribunal accepts [Mr C]’s evidence to be true.

9. The applicant also took evidence from the applicant’s friend [Ms B], an Australian citizen who has known the applicant since she came to Australia in 2008 and has talked to her about her situation.  [Ms B] expressed great concern for the applicant, telling the Tribunal that she had insisted that the applicant go and see [Dr E] because she was so worried about her.  [Ms B] told the Tribunal that it was difficult for any woman in India to relocate and build a new life, but the applicant’s personal circumstances made it impossible and she remained in real danger from her husband.  The Tribunal accepts that [Ms B] has genuine and grave concerns for the health and safety of the applicant.

10. The Tribunal gives significant weight to the report of [Dr E], consultant psychiatrist, dated [in] March 2017.  As noted above, [Dr E] is a consultant psychiatrist specialising in gender and family violence in the Indian community.  [Dr E] assesses the applicant as [displaying a range of symptoms]. She has diagnosed the applicant with [medical conditions] and states in her report that she considers her a genuine suicide risk if she has to return to India and continues to treat her with medication and supportive therapy.

1. DFAT reports that domestic violence remains a significant issue India with around 14 per cent of married women reporting some form of emotional violence, 10 per cent ‘severe’ physical violence, 31 per cent ‘less severe’ physical violence, and eight per cent sexual violence. Many cases of domestic violence go unreported[2].  DFAT assesses that women in Punjab face a high risk of domestic violence and sexual harassment, a moderate risk of serious sexual assault and a high risk of societal discrimination throughout their lives[3].  The Tribunal considers that the DFAT advice adds weight to the applicant’s claims. 

   [2]DFAT 2015 DFAT Country Information Report India 15 July at 3.49 – 3.56

   [3] DFAT 2016 DFAT Thematic Report Indian State of Punjab 7 December

2. On the evidence before it the Tribunal accepts that the applicant’s husband [Mr D] has been violent and exploitative towards her since their marriage in August 2008. The Tribunal accepts that harm constitutes serious harm for the purposes of s.91R(2). While there has been no direct contact between the applicant and her husband for several years now, the Tribunal considers that to be only because the applicant has not returned to India and her husband is unable to enter Australia. Her husband has continued to exercise what control he can by continuing to contact her friend, strip the family of their financial assets, threaten the applicant and deny her a divorce.

Risk of future harm from her husband

1. Given the husband remains living in Punjab, India and considering the seriousness of the conduct of the husband towards the applicant and her family in the past, the Tribunal accepts there to be a real chance that he would again seek to harm the applicant if she returned to her home area of Punjab, India.  This risk is exacerbated because the applicant would return to Punjab without family support or a home, as her [Family Member F] and mother have died and the family home was sold and the proceeds taken by her husband.  While [Mr C] is alive, he is extremely elderly, has lost his home and is living with distant relatives.

Availability of state protection

1. In this case, the harm the applicant fears will be perpetrated upon her by the husband, a non-state agent.   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. The Tribunal considers that the essential and significant reason for the harm feared by the applicant is her membership of his family unit. It is well established that a family is capable of constituting a particular social group within the meaning of the Refugees Convention[4].

   [4] Chan v MIEA (1989) 169 CLR 379 at 396 per Dawson J, Mocan v RRT (1996) 42 ALD 241 at 246, Mahuroof v MIMA (unreported, Federal Court of Australia, Branson J, 13 March 1998) at 9.

2. As to whether the applicant can receive protection in India from the harm that she fears from the husband, independent sources indicate that protection for women in Punjab against family or honour related violence is regarded as poor and the Punjab police force is widely regarded as as among the most corrupt and ineffective in the country, providing inadequate services to women.[5]

   [5] McVeigh, T. 2001, ‘Riddle of the mother who vanished’, The Observer, 22 July, ; Ganguly, M. 2010, ‘India: Prosecute Rampant “Honour” Killings’, Human Rights Watch, 18 July Bindra, J 2009, ‘Women’s rights take a beating in Punjab’, Indian Express, 10 November US Department of State 2010, 2009 Country Reports on Human Rights Practices – India, 11 March, sec 6.

3. In the above circumstances, the Tribunal accepts that the state of India cannot meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that the Tribunal finds that the applicants face a real chance of persecution for reasons of their membership of a particular social group if they return to their home in Jalandhar, India now or in the reasonably foreseeable future.

Relocation

1. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.

2. The Tribunal has had regard to the fact that the mother is a [age] woman from Punjab, India.  The Tribunal accepts that prior to coming to Australia, the applicant had lived only at her family home in a village near Ludhiana in Punjab and briefly at the home of her husband’s family in a nearby village.  The Tribunal has accepted that she has been seriously harmed by the husband in the past and that there is a real chance that he will seek to harm her in the foreseeable future should she return to Punjab.  The Tribunal accepts that the applicant has secondary education but little work experience and has not completed her studies in Australia.  She has no real family support, her only living relatives being her elderly [relative, Mr C] and a [family member] with whom she is not in touch.  Such resources as the family once had have been taken by her husband and his family.  Sources indicate that women face discrimination throughout India in the areas of employment, housing, social customs and are subject to mistreatment through pejorative societal attitudes and the denial of welfare entitlements[6]. 

   [6] Harikrishnan, K. S. 2011, ‘60 Registered Rapes a Day’, Inter Press Service, 1 March Dhawan, H. 2009, ‘Single women left out of NREGS: ILO’, The Times of India, 14 July

3. Medical evidence referred to above indicates the applicant suffers from [medical conditions].  Her treating psychiatrist considers her a genuine suicide risk if she has to return to India and continues to treat her with medication and supportive therapy.

4. In the particular circumstances of the applicant, the Tribunal accepts that relocation within India is not reasonable.  As such it is not necessary to consider the applicant’s other claims.

5. 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

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

Alison Murphy
Member

People’s Collective for Economic, Social and Cultural Rights 2008, Divided Destinies, Unequal Lives: Economic, Social and Cultural Rights and the Indian State, May, pp. 8-9 & 21 ; Albuquerque, U. 2011, ‘Eve’s options’, The Tribune, 9 March
Immigration and Refugee Board of Canada 2011, IND103726.E – India: 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, 9 May
US Department of State 2011, Country Reports on Human Rights Practices 2010 – India, 8 April, Section 6 ;
People’s Collective for Economic, Social and Cultural Rights 2008, Divided Destinies, Unequal Lives: Economic, Social and Cultural Rights and the Indian State, May, p. 8
Collective for Economic, Social and Cultural Rights 2008, Divided Destinies, Unequal Lives: Economic, Social and Cultural Rights and the Indian State, May, p. 8
Burke, J. 2011, ‘Letter from Delhi: Why is Delhi India’s most dangerous city for women?’, The Guardian, 22 February; DePaulo, B. 2008, ‘Single Women in India: A Conversation with Kay Trimberger’, Psychology Today, 14 October