1508621 (Refugee)

[2017] AATA 2364

1508621 (Refugee) [2017] AATA 2364 (6 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508621

COUNTRY OF REFERENCE:                  India

MEMBER:Angela Cranston

DATE:6 September 2017

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 06 September 2017 at 4:02pm

CATCHWORDS

Refugee – Protection visa – India – Religion – Muslim – Social group – Arranged marriage – Domestic Violence – Physical and psychological harm – Separated Woman – Sought police protection in Australia – Real risk of harm – Mistreatment of child

LEGISLATION

Migration Act 1958, ss 36, 36(2)(a)-(c), 36(2A)(2B), 65, 424AA, 91R(1)(a)-(c), 438, 499,

Migration Regulations 1994, Schedule 2

CASES

Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2.The applicants who claim to be citizens of India, applied for the visas [in] May 2014 and the delegate refused to grant the visas [in] June 2015.

3.In the application, the first named applicant (the applicant) stated the following:

I was born on [date] in [India].

My parents live in [City 1 in India]. I have [a number of] siblings.

I have been in a relationship with [my husband]since August 2010, when our marriage was arranged by our respective families. We have one child together, [who]  is included in my protection application.

I am separated from [my husband] because of domestic violence.

Why I left India/Harm I experienced in India

I am deeply afraid of returning to India because of my husband [and] his family.

I am a Muslim Woman. My family is deeply religious and placed many restrictions on me, such as refusing to allow me to study past secondary school and would not allow me to work. My family also chose my husband without my consent or opinion.

My marriage in August 2010 was a marriage arranged by my parents. Prior to our marriage I had never met or spoken with [my husband]. Immediately after the wedding ceremony, I went to live with [my husband]’s family. In Muslim culture, wives are the responsibility of the in-laws and live with the husband’s family. [My husband] and I only spent a month together before he left for Australia. During the short time [my husband] and I were together, I fell pregnant. He left me behind to live with his family.

At the time of my arranged marriage, I was aware that my husband had been married previously and that this marriage did not last. I did not become aware of the circumstances leading up to the end of his first marriage until much later.

From the beginning of our marriage I was subjected to verbal abuse and beatings from [my husband]’s family. I pleaded to my husband to take me to Australia and not leave me behind. [My husband] told me to stay back and look after his [family]. He made it clear that I was to do everything they told me to.

After [my husband] left for Australia, the verbal abuse continued and I also suffered beatings by my [husband’s family members]. When I complained to my husband over the phone, he swore at me and told me that no matter what I must keep looking after his family.

[They] treated me worse than a slave. I was forced to cook and clean for the whole family. When I explained I needed rest because I was pregnant, I was threatened by my [husband’s family members] that if I did not do what they said, that I would be beaten and [murdered] like [my husband]’s first wife. This was how I first discovered to my horror that my husband and his family attempted to kill his first [wife]. I also heard about the plan to [murder][my husband]’s first wife [from] the neighbour of my in-laws. I heard that the first wife discovered the plan and reported it to the police. I heard that the police took no action against [my husband] or his family.

I sought help from my [own family], but they told me that because I was now married, they could not help me as I was no longer their responsibility. I was advised to cope with the situation and that returning to the family home was not an option. I was warned that if I was to try to return to my family home, I would bring shame and embarrassment to my parents and my siblings and be disgraced in the community.

My in-laws deprived me of money, food and medicine. I never had enough food to eat. On one occasion one of my [husband’s family members][assaulted me] without any concern about my pregnancy. As a result of this I was in severe pain and agony and deeply afraid I would suffer [further abuse]. I pleaded to my [husband’s family]for help to take me to hospital. In response they said words to the effect of: we are not worried about you]. The next day my mother-in-law called my mother and told her that I was pretending to be sick and recommended she come and get me. My mother came and took me home but when she realised that I am in a lot of pain she rushed me to the hospital.. [I] was in hospital for a few days. After returning home from the hospital, I was adamant I wanted to stay at my parent’s home until [my husband] returned from Australia. My [family member] however forcibly returned me to my in-laws home telling me that neither he nor my parents will support me and can no longer do anything to help me.

I had pregnancy complications again at about six months and my [husband’s family] sent me to my mother again. I spent a few days in hospital again. Neither my husband nor my [husband’s family] showed any care at all for me or my unborn child.

Eventually I managed to convince my husband to take me with him to Australia after he returned to India for holidays. I travelled to Australia with [my child] as a dependent on my husband’s [visa] [in] May 2012. I was hopeful that life in Australia would mean a positive life change for both me and [my child]. I was very wrong.

When I first arrived in Australia, [my husband], [my child] and I lived in a share house with a [family]. [My husband] told the family we were sharing with that they should basically use me like a servant. I was forced to clean the whole house. I was told by my husband that he would send me back to India unless I did what I was told. [My husband] would beat me regularly. [I] would cry and be in pain for a long time after the beatings. He beat me in front of the other family [a few] times. They never intervened and always took his side. He would also verbally abuse me often. My husband resolutely refused to permit me to see a doctor. [My husband] would also beat me in front of [child].

During my time in Australia [my husband] never allowed me to have access to a bank account. I was never given any money and often had to resort to begging from him to buy me and my [child] clothes and necessities. My phone would only accept incoming calls. I was not allowed to make any friends. My husband treated me like a slave. He would not permit me to relax with him and [child]  and force me to constantly cook and clean.

[My husband] would force me to have sex with him without my consent.

One time [my husband] began to beat me viciously [assault details deleted]. I fell onto the ground and [my husband] kept [assaulting] me while I was on the floor.

One day [my husband] was showing [our child] some photos of his family. [Our child] said to him Papa you always fight with mummy. I don’t want to see these photos. [My husband] got very angry at me and claimed that I was using [our child] against him. He started shouting at me and getting ready to beat me. I told [my husband] that if he beats me again, I will go to the police. I called the police and in retaliation so did [my husband]. [My husband] threatened that his family would kill [some of my family members]for this.

I finally left [my husband] in [2014]. [My child] and I are living in a refuge. There is a provisional AVO against [my husband]. I am unsure when the next court date is to hear the final AVO.

I have been told by my husband and in-laws that if I bring disgrace to their family either by leaving my husband not telling anyone, they will kill me.

What I fear may happen if I return to India/the situation in India should I return.

Because now I have taken the bold decision of leaving my husband, I am almost certain that I will be killed by my husband and his family. I also believe that they will take custody of my [child] and certainly mistreat [my child]. If I was subjected to extreme degree of violence in Australia, one can imagine what will happen if I am forced to go back to India.

It is hard to describe the callousness and cruelty of a family that treats a pregnant woman in the way that [my husband]’s family has treated me.

My husband told many times after beating me that if I tell police or anyone in Australia about the abuse, he will take me back to India and him and his family will[murder me]. This has frightened me greatly. I take this threat very seriously because of their past treatment of me, and also because I know about their past plans [murder] [my husband]’s first [wife].

My husband also told me many times if I ever leave him or complain to police he will find me and not only kill me but also [some of my family members] in India. Now I have left him, I feel very scared for not owning my and [child]’s lives, but also for my family back in India.

My [family] know about [my husband] and his family’s mistreatment of me. They have seen the evidence and heard stories from me. My [family members] have told me in very clear words that they can’t support me and I am now my husband and his family’s responsibility and I must learn to tolerate all beating and verbal abuse. [One of my family member’s]even told my in-laws that even if they kill me, it doesn’t matter because I am their responsibility.

This is why I have no doubt that if I go back to India, I will almost certainly be killed.

I have taken the bold step with the help of NSW police and other domestic violence victims support groups such as community health and ladies from [a women’s group]. But if I go back to India, I will not have any support neither from my own family nor from the authorities. India is a male dominated society and women are treated like objects to own and possess and discard, therefore I have no doubt in my mind that my [child]and I will be killed by my husband and his family for the disgrace and dishonour I brought to their family.

Why the authorities cannot protect me

I do not believe that the authorities will protect me from my husband’s family. The police in India are culturally biased against domestic violence female victims in most cases they side with the husbands. The police reports are so biased against women victims that victims do not stand any chance of justice in Indian courts. I have no doubt from experiences in India that the female domestic violence victims have no chance of getting justice from Indian authorities.

In majority of cases truth and justice falls victim to bribery in order to cover up worst cases of domestic violence. In most domestic violence cases husbands and their families pay bribe money to the police to either discard or hide evidence of torture such as medical reports.

The domestic violence victims like myself are not safe at all in India, female victims are treated very badly by society. Victims of domestic violence and women who leave their husbands are rejected by society and even their own families. Therefore my fate will be no different if I am sent back to India. Somehow if I survived death from the hand of my husband and in-laws my [child] and I will be considered disgrace to the family and the Indian male dominated culture. The consequence will be that I will be left helpless and abandoned to face certain death in the [streets].

Therefore I am pleading to Australian authorities for protection so I can spend good and happy life with my [child] instead of a scared one where my life and my [child]’s life is in danger.

Relocation

I will not be accepted in India as a single Muslim mother. Reporting my husband to the police is a really big deal and I have made [my husband] and his family very very angry.

I will always be scared in India that [my husband]’s family will find me and harm me and take [my child].

I have no qualifications and I will not be able to find any work. I will have [my child] with me and have to look after her.

I will have no family support of any kind.

4.In a further statement dated 1 April 2015, the applicant stated as follows:

Towards the end of February 2015 I spoke with a female friend of mine in India, [Ms A]. I have known [Ms A] since I was a child as we grew up in the same area. I used to speak to her regularly when I lived in India. I have told her in the past about the problems in my marriage and that I was not happy with my husband. After I came to Australia, my husband didn’t allow me to have contact with her, so I hadn’t spoken with her for a few years.

In February 2015 I told [Ms A] that I had separated from my husband and that I was residing in Australia alone with my [child]. [Ms A] asked me for my husband’s family’s address and said she would see what she could find out about his family.

[Ms A] later told me that her [relative] had said to her that [my husband] and his family were not good people. [Ms A] told me that she had become aware that my [husband’s relative]was involved in some kind of [illegal] business. [Mr B] Is my husband’s [relative]. I was really shocked when I heard this. I did not know anything about this.

[Ms A] told me that probably all of my husband’s family are involved in the business. My husband navigated works ([both] in Australia and in [India]).

[Ms A] told me to look up Facebook under the name of [Facebook name deleted]. I did this and discovered that it was my [husband’s relative’s] page and that there was a photo of him on this page I have attached a screenshot of this photo.

I have also attached some photos of my [husband’s relative] [taken] at my marriage to [my husband].

On his Facebook page, [Mr B] has many friends [business details deleted]. Because of this, I am confident that [Ms A] is correct in saying that [Mr B] is involved in some kind of [illegal] business.

I am now also afraid that if I am forced to return to India, my husband and [Mr B] will force me to work [for their illegal business]. I’m also afraid that my [child] may be forced to work [also]. My husband’s family have physically beaten me on numerous occasions, and have made threats to kill and/or hurt me. I am really afraid that they would force me to work [in their illegal business]. I am extremely worried for my [child]’s safety if we were forced to return to India.

I now think that perhaps [my husband]’s family wanted me to work on this [business] from the beginning. [Details deleted] I feel so worried and I keep thinking about what might happen to us if we return to India.

[Ms A] also said to me words to the effect of don’t come back to [India]it is not safe for you. [Ms A] is also worried about getting involved and she said she doesn’t want any problems.

I feel so ashamed that I got married with these kind of people, who would be involved in these kind of activities.

5.The applicant appeared before the Tribunal on 6 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms C], who is the applicants’ Social Worker.  The Tribunal hearing was conducted primarily in English with the occasional assistance of an interpreter in the Hindi and English languages.

6.The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

7.The applicant stated the refuge helped her apply for a protection visa in 2014, that the solicitor had read her application and statement back to her in Urdu and it was correct and she did not want to change or add anything.

8.The applicant stated she came to Australia in 2012 and had lived in [Australian suburb 1], then [Australian suburb 2] and then in a refuge. She stated she separated from her husband in 2014 and had last seen him [in] Court in 2014. She stated she did not want to see him again and wanted to apply for a divorce but it was too expensive.

9.The applicant stated that she feared returning to India because her in-laws were bad, she had no family support, one of her [husband’s relative] was involved in [an illegal business] and she was scared of him. 

10.The applicant stated the last time she lived with her family was in 2011 when her [child] was born. She stated she lived there on and off and would take their help.  She also stated that when she was pregnant or when she had problems with her in-laws she would go to her mothers and then return to her in-laws.

11.The applicant stated she married in 2010 but problems started on their first night and  the morning after they met he had asked for money. She also stated she was with him for one month before he went to Australia, that he was physically violent towards her in India and had hit her in front of her in laws. She also stated her in-laws began abusing her after a short time.

12.The applicant stated after the second day she was in Australia her husband was rude and verbally abusive and beat [her] . He also threatened her by saying he would kill her family. She stated that in [Australian suburb 2] he abused her sexually. She stated she did not have friends, phone or Internet and could not share her experiences with anyone. She stated he supervised her phone calls to her family.

13.The applicant stated an apprehended violence order (AVO) against her husband was issued for [duration]. When asked what happened to that AVO, she avoided the question. She then stated he had a good lawyer and she did not get a subsequent AVO. She also stated she could not explain herself at Court because her English was not good.

14.The Tribunal asked if she had any injuries as a result of her husband hurting her and she stated he never took her to a doctor. The Tribunal asked if she called the police and she stated he would call the police and say things about her. The applicant stated she had called the police two or three times but never gave them any details. She also stated once the police came but she told them nothing had happened. She stated the police came two times in [Australian suburb 2] and one time she went to the police and she had interacted with the police three times.

15.The Tribunal asked her about the first time the police came to [Australian suburb 2]. She stated her husband threatened to kill [one of her family members]. She stated when the police came she said it was okay. She also stated she called the police on that day because on that day her husband had beaten her very badly.

16.The Tribunal asked her about the second time she called the police but he grabbed the phone. She stated the police came and were not helpful. She stated her husband had wanted to beat her. She stated he was showing [their child] photos of his family which [their child] did not want to see and he got upset. She stated she was in the kitchen and she said she would call the police and rang them but did not say anything. She stated the police came and told her that they had been rung by her husband.

17.The Tribunal put to her that as it understood it that would have been [in]2014 and she agreed. The Tribunal put to her that it had a copy of the transcript of the [court] case and as it understood it she had attended the police station [in] 2014 and was examined but there were no physical injuries. She stated he beat her but not in a way that she would get injuries. She stated that he hit her with a [object] and did not know if she had injuries on that day. The Tribunal also put to her that the interim violence order had been prepared on the basis that she said that there had been verbal arguments on [date]and [date]and not that there had been physical violence. She stated she said he was coming to beat her. The Tribunal put to her that as it understood it the police were interviewed at [the] Court and the officer involved said that the interim violence order was prepared on the basis of verbal arguments only and she did not tell them that he had been physically violent on [date]2014. She stated on that day he came to the kitchen and he pushed her and was very angry and wanted to be violent but she stopped him.

18.The Tribunal put to her that it was wondering whether on [date] 2014 he was physically violent. She stated he pushed her and wanted to beat her. She stated he beat her maybe two or three times. The Tribunal put to her that in her statement she said he started to shout at her and was getting ready to beat her but said he had beaten her when he was at the court. She stated he pushed her but as to how many punches he gave her she could not remember. The Tribunal also put to her that she had been examined on [date] 2014 and there were no injuries. She stated he beat her and sometimes she got very bad injuries but he did not take her to the doctor. She then got upset.

19.The Tribunal put to her that she said at court on [date] 2014 he beat her very badly and she didn’t call the police but then on [date] 2014 she called the police and described that she had been beaten quite badly, that is he started kicking her and he did not stop however she was physically examined at the police station on the [date]2014 and did not have any physical injuries which was difficult to understand given the level of violence that she said he inflicted against her on [date]and again on[date]. She stated she told the truth and could not say why she did not have injuries on her body. She stated he badly beat her with a [object]. The Tribunal put to her that she had been in Australia since May 2012 and said that her husband was violent towards her when she came to Australia but she hadn’t called the police at any time until [2014]. She stated she did not call the police because he threatened to hurt her family in India. She also stated she did not have the phone or Internet and she was on her own and did not know about Australian laws, did not know the police number and came from a family that did not like the police. She stated she went to a park and asked and they told her there. The Tribunal asked what changed and she said [child] was growing and started to know everything.

20.The Tribunal asked why she is feared going back to India. She stated she still had [child] and he could do anything. She also stated he was from a bad family and would want to harm her. She also stated he had abandoned her and her [child] and was not interested in supporting them and she did not think he was nice.    

21.The Tribunal then spoke to [the applicant’s social worker]. She stated she knew the applicant since2014 when [Ms C] was working as a social worker at [a] Domestic Violence Service. She stated when she first met the applicant she was living with her husband and the police became involved not long after. She stated she didn’t see her for a while but she had a student working with her who would show her how to catch the train and take her to [places]. She stated [the] police became involved and they gave her a provisional apprehended violence order. She said the applicant was not in touch with her during this time and when the applicant went to court there was no interpreter. She stated the applicant was back in contact with her weeks later and after the AVO had been withdrawn. She stated after that [Ms C] helped the applicant find alternative accommodation.

22.[Ms C] stated she believed the applicant because her intuition told her she was an honest and good woman. She was also shy and modest. The Tribunal put to her that it obtained a copy of the court transcript and the applicant had said that she had been fairly badly physically assaulted [in]April 2014 but when she went to the police station and was examined on [date]  April 2014 there was no physical evidence of injury. She stated she could not comment. She stated she was told he used to physically hit her under her clothing. She said when she first met the applicant she was very distressed and traumatised and her method of telling her story was congruent with what she knew about trauma, that is she was all over the place, the narrative was jumbled and she saw a woman she believed.  [Ms C] also stated that it was not until she told the applicant there were other options to staying with her husband that she had even considered that there may be other options. She stated when people were hit they often did not get injuries. She also stated it appeared that his control over the applicant was extreme, that is she did not know how to [use public transport], she didn’t have any money and she didn’t have any contact with the outside world and her relationship fitted patterns of domestic violence.

23.The Tribunal put to the adviser that there was information on the departmental file that was the subject of a section 438 notice because it disclosed third party information and asked if he wanted to comment on the validity of the certificate issued under section 438 but that the information was relevant but not adverse and did not add anything new to the discussion. The adviser chose not to comment.

24.The adviser asked the Tribunal to consider the extent of the police examination and if they had not checked under the applicant’s clothing then how could they know the full extent of the injuries. The Tribunal then stated that the police woman interviewed at court was asked about the applicant’s attendance at the police station and said that on that day, the applicant had stated that she did not think she had injuries, that a lady with the [Women’s] Association had checked her for injuries and had told the police there were no visible injuries. The applicant then said she had just checked her back and arms and that she did not undress.

25.The applicant said it was a hard life in Australia and she would not stay if she could return to India. The Tribunal also put to her that she was no longer in a relationship with her husband. She stated he would still bother her because she had his [child]. The applicant also talked about [her husband’s illegal business]. The Tribunal put to her that she’d never previously mentioned that he had tried to push her into [their business] in India or in Australia. She stated that he sexually abused her and was from a bad family background and could do anything because she had created so many problems for him. She also said she had no support from her family who were from a respectful background and she could not go to the police.

26.Following the hearing, the Tribunal sent the following letter pursuant to section 424A:

The Transcript of [Local] Court proceedings on [date]2014 read that you gave the following evidence:

In relation to events on [date]2014:
Q. Could you just tell his honour again what you remember happened during that incident?
A. Yeah. Actually morning he was going to office and he was taking my house key. Like two keys was then I said I’m not going anywhere but once I go in the park in, in the evening why you taking my house key and going? He said no, why, you telling me like that? I said you take your one and you go. Where’s your key? You always take your key and go. Then just he turn off and he was like giving abusing me too much and he beat me and he was telling that he, like, you are a cheap woman and how do you talk to me. He always say like that to me any he kicked me on all my body like he, he started kicking and he didn’t stop.
Q. He didn’t stop?
A. Till I fall on the ground, yeah, he didn’t stop. And he was completely like he was not looking. I’m a girl. I’m getting hurt. I’m, I’m his wife. If I get too much hurt he will only have to take me to the doctor but he didn’t, sore back, whatever happen. He, he just went out from house and he went to office and he came 7 O’clock in the night.
Q. I’ll just take you back over that. You said he kept kicking you?
A. Yeah.
Q. You were standing up first, yes?
A. Yeah and three days pain.
Q. Three days pain?
A. Yeah.
Q. You were standing up and he started kicking you?
A. Yeah
Q. Where was he kicking you when you were standing up?
A. He kicking me on my stomach, my, my, the thighs, my back. He kicked me all over my body too much.
Q. That’s while you are standing up, and then you fell down?
A. And then I, I was looking him and I was thinking you are a man and you are kicking me, I’m woman. I’m not having so much this thing too, you’re kicking all my body and just I, I
HIS HONOUR
Q. Just hold on.
A. Yeah
Q. The question was and you answered
A. Yeah
Q. When you were standing up he kicked you on your stomach, kicked you on your back and kicked you on your thigh?
A. Yeah
HIS HONOUR
Q. There’s going to be another question now.
APOKIS
Q. You said he kicked you so much?
A. Yeah
Q. Is that right, that you then fell over?
A. Yeah.
Q Is that correct? So he was kicking you very hard?
A. He was wearing shoes, both shoes.
Q. Both shoes?
A. Yeah
Q. He kicked you that hard and that many times you then fell to the floor?
A. Yeah
Q. He continued to kick you?
A. Yeah
Q. Do you remember how many times he kicked you when you’re on the floor?
A. He was kicking me so much and I was like it was that time I was not thinking to count that kicks
In relation to events on [date]2014:
Q. In your statement he raised his fist once and said he’d beat you and you said “if you raise your hand I’ll call the police now”?
A. But he, he raised on me hand, like he beat me once.
Q. He hit you?
A. Yeah
Q. He hit you as well?
A. Then only I raise, I call the police. I said “today I won’t, I won’t, you will you can’t kick me, you can’t beat me today. I will call the police”.
Q. What you’re saying now is that you just said he actually struck you, he hit you with his hand?
A. Yeah
This information is relevant to the review because it may be inconsistent with your statement which states that:
One day [my husband] was showing [child] some photos of his family. [Our child] said to him ‘Papa you always fight with mummy. I don’t want to see these photos’. [My husband] got very angry at me and claimed that I was using [child] against him. He started shouting at me and getting ready to beat me. I told [my husband] that if he beats me again, I will go to the police. I called the police and in retaliation so did [my husband]. [My husband] threatened that his family would kill my [family member] for this.

This is also relevant because it may also be inconsistent with what [the] Senior Constable said at court [in]2014 which was that you were examined [in]2014 and there were no injuries. The transcript read:
Q. You met with the victim on [date]. Is that right?
A. Yes…
Q. Your involvement in the matter was really just taking a statement when she came in?
A. Yes
Q. She didn’t come unattended, she had someone with her?
A. She had a lady from the [women’s] Association [come] with her but as I understand she hadn’t spoken to her until just recently. I don’t think she knew her very long.
Q. Did you have any conversations with her, the person from the refuge?
A. No. She was just there, just sitting with [Ms D] .
Q. But you asked her to check the victim’s body for any injuries?
A. I asked  [Ms D] if at, whilst she was with me I asked [Ms D]  if she had any injuries because she had long sleeves, long dress, I couldn’t see her and she said ‘no I don’t think so’. And I said would you like to check if I leave the room?
And the lady from the [Women’s] Association said would you like me to check for you? And she said yes. So I left the room and they told me that they had, she had taken her dress off and checked for any injuries and they told me there was no visible injuries.
Q. You note in her statement that she alleges that she was brutally kicked, her legs, her stomach, her back on[date]?
A. I’d have to refer back to her statement to the details but
Q. But in any event no injuries?
A. No injuries.

If the Tribunal finds that what you said at [the]Local Court proceedings is inconsistent with your statement and with what[the] Senior constable [said] at court, then, subject to your comments the Tribunal would affirm the decision under review.

1. The applicant responded as follows:

   Our client instructs that during the AVO court proceedings she did not have the benefit of an accredited interpreter and this was significantly disadvantaged.

   Our client further claims that threats made by her estranged husband to harm her in India were made after she reported the incidents of family violence to the NSW police and was granted an interim AVO. She claims that he was extremely angered by her actions and such anger was further exacerbated during the drawn out legal process. We respectfully submit that the fact that our client was not ultimately successful at being granted an AVO does not in itself discredit our client’s claims that her estranged husband is seeking revenge.

   It is the fact that our client defied her estranged husband and the act of reporting him to the police remain the pivotal cause for his anger and his determination to exact revenge against her if she were to return to India. Apart from physical harm, our client fears that her estranged husband will be able to deprive her of seeing her[child], as he has threatened on many occasions.

   Country Information

   Marriage and Divorce

   28.According to DFAT

   3.34 Arranged marriages continue to account for the overwhelming majority of marriages across India. Parents and/or significant family members are often solely responsible for making a decision about who children marry, particularly in north India. Many parents consider arranging a marriage for their children a right and duty, and may not accept modern marriage practice such as a son or daughter choosing their own spouse. There is enormous social pressure for women to marry by their mid-20s and men by their mid-30s. Although the divorce rate has increased in recent years, particularly among the affluent middle classes, India has one of the lowest divorce rates in the world at an estimated one in 1 000 marriages…

   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.
   3.53 Domestic violence against women has been a criminal offence since 1983 and was strengthened with the Protection of Women from Domestic Violence Act 2005. However, credible non-government organisations in India have described a very high prevalence of domestic violence. Rape within marriage is not a crime in India.
   3.54 The National Crime Records Bureau registered 309,546 cases of crimes against women in 2013. Of these cases, 118,866 were cases of domestic violence (including dowry harassment); 70,739 were cases of molestation; 51,881 were kidnappings; and 33,707 were cases of rape. According to the third National Family Health Survey conducted in 2005-06, around 14 per cent of current or previously married women had reported some form of emotional violence, 10 per cent ‘severe’ physical violence, 31 per cent ‘less severe’ physical violence, and eight per cent had experienced sexual violence. Many cases of domestic violence go unreported.
   3.55 While illegal under Indian law since 1961, there is a general expectation that a bride’s family will provide a dowry consisting of both money and items such as household goods. According to government statistics, in 2013 around 8,000 Indian women died violent deaths because their families were unable to meet demands for further dowry after marriage, and more than 220,000 people were arrested on charges of dowry harassment. In response, the Supreme Court issued a ruling in July 2014 that questioned the propriety of the anti-harassment laws and said that police should follow ‘due diligence’ before making arrests in dowry harassment cases.
   3.56 A number of high-profile cases during 2012 focused media attention on the broader issue of sexual assault against women. This resulted in the creation of the Verma Committee to consider and recommend amendments to criminal law to provide faster and more effective access to justice for victims of sexual assault. Following the release of the Committee’s report in January 2013, the Central Government amended the Penal Code to expand the definition of rape, introduce new crimes such as stalking, acid-throwing and assault with intent to disrobe, and strengthen sentences for these crimes. The amendments also made it a crime for police or public officials to refuse to register sexual assault complaints. Despite these reforms, sexually-motivated harassment and violence remain a problem of significant scale in India, and access to police and judicial intervention for victims is often poor.

   According to Country of Origin Information Services Section India, Common claims 9 May 2017:

   Divorced and separated women are stigmatised in Indian society. Relocation within India of single women, women with children or victims of familial crime can be difficult because of the need to provide details of their husband’s or father’s name in order to access government services and accommodation. Restrictions on the ability to control or own land may also apply to many women in parts of India, while single women also face difficulties finding housing. India’s Ministry of Women and Child Development runs Short Stay Homes and Swadhar Homes to support women in difficult circumstances, and there are also non-government-run shelters, some of which provide job training and work.

   Domestic Violence

   29.Domestic violence against women remains a serious problem in India. Domestic violence has been a criminal offence since 1983 and this was strengthened by the Protection of Women from Domestic Violence Act 2005 (PWDVA). However, rape within marriage is not a crime and there remains a very high prevalence of domestic violence. Social pressure also prevents many women from reporting domestic abuse.

   30.Indian law provides women with the right to police assistance, legal aid, shelter, and medical care, but this is of limited effectiveness. The PWDVA defines violence against women as including physical, sexual, psychological, verbal and economic abuse. It enables victims of domestic violence to seek interim protection and residence orders, as well as compensation and maintenance, and protects women not only from abuse by a spouse, but also members of the spouse’s family. However, endemic corruption and weak enforcement limits the effectiveness of the law. There are over 600 shelter homes for women provided through the Ministry of Women and Child Development, as well as non-government-run shelters.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   31.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.

   32.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).

   33.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.

   34.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’).

   35.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.

   36.The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in India and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to India, there is a real risk that she will suffer significant harm.

   37.For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   38.The applicant claimed in her protection visa application to have been subjected to verbal beatings and abuse from her husband since the beginning of their marriage and describes two occasions, one where her husband beat her viciously ‘by kicking her all over her body until she fell to the ground where he continued to kick her while she was on the floor’ and the other occasion where her husband was showing her daughter photos of his family when her daughter told him that he did not want to see them because he always fought with the applicant whereupon her husband started shouting at her and got ready to beat her and at hearing, she agreed that that would have been on [date] 2014. However, the transcript of [Court] proceedings on [date] 2014 states that at court, the applicant initially stated that on [date]2014 he beat her very badly and she didn’t call the police but then on [date]2014 she called the police and described how she had been beaten quite badly, that is he started kicking her and he did not stop but then stated that on [date]2014 he hit her with his hand. In addition, the Tribunal finds that she was physically examined at the police station on [date]2014 and there were no injuries. When this was put to the applicant at hearing, she stated [date]2014 he had pushed her and was very angry and wanted to be violent but she stopped him and that she told the truth in relation to events on [date]2014 and could not say why she did not have the injuries on her body and that he beat her with a [object]very badly.

   39.While the adviser subsequently asked the Tribunal to consider the extent of the police examination and that if they had not checked under clothing then how could they know the full extent of the injuries and that the applicant added that the lady with the [Women’s] Association just checked her back and arms and that she did not undress, in addition to there being no injuries cited at the physical examination, [the] Constable has also stated that the applicant did not allege that there were injuries.

   40.The Tribunal has struggled to understand why there were no cited injuries on [date] 2014 given the level of violence that the applicant said her husband inflicted against her on [date]and again on [date]2014. This also concerned [the]Magistrate who in his decision dismissing the final apprehended violence order stated:

   There was no support concerning the violence and again my own experience, if someone is punched and kicked to the ground and then kicked repeatedly on the ground, that there are bruises left, even after six days. That is only my own experience and some little time ago at the annual magistrate’s conference there was an expert on bruising, and he said the rules are there are no rules.

   Some people clear up quickly, some clear up slowly, different people bruise black and blue and so it is possible that the bruising that might have been inflicted on the[date], according to the victim’s evidence, might have gone by the time the lady from the [Woman’s] Association had a look and could not find anything. And it is possible that any violence that was inflicted on the victim from [date](as said) might not have manifested itself in bruises at that time. That is a possibility but it would seem to me, on the balance of probabilities, it would be unlikely that there would be no evidence of violence after these two matters.

   41.The Tribunal has also struggled to understand why the applicant did not call the police at any time before [date] 2014 despite being in Australia since [date]2012 and according to her evidence the verbal abuse and beatings started immediately. When this was put to her, she stated she did not call the police because her husband threatened to hurt her family in India. She also stated she did not have a phone or Internet and she was on her own and did not know about Australian laws, did not know the police number and came from a family that did not like the police. She also stated she went to a park and they told her there and that the reason things changed was because [her child] was growing and started to know everything.

   42.The Tribunal considers the applicant’s explanation as to why she did not call the police before [2014] plausible. The Tribunal has also considered the evidence of [Ms C]whose history and experience, according to her undated letter includes having worked as a senior social worker at [a]Domestic Violence Service [from] 2009-2016 where her work involved counselling women and children who had been affected by domestic violence. [Ms C] stated that when she first met the applicant in 2014, her intuition told her she was honest, that she was very distressed and traumatised and her method of telling her story was congruent with what she knew about trauma and that it appeared that the control he had over her was extreme, that is she did not know how to [use public transport], she didn’t have any money and she didn’t have any contact with the outside world and her relationship fitted patterns of domestic violence. She also stated that it not until she told the applicant there were options other than staying with her husband that the applicant had not even considered that there may be other options. She stated when people are hit they often did not get injuries. The Tribunal considers [Ms C] to be a reliable witness and accepts her assessment of the applicant’s circumstances as accurate.  The Tribunal also accepts that when the applicant became aware of options other than staying with her husband, she availed herself of those options and since that date, has acted in a manner consistent with someone who has alleged and indeed suffered domestic violence. Country of Origin Information Services Section India report confirms that social pressure also prevents many women from reporting domestic abuse and the Tribunal considers that this advice is consistent with the applicant’s alleged behavior in not reporting the abuse earlier. 

   43.Having considered the totality of the evidence, the Tribunal cannot find with confidence that the applicant has not been telling the truth about her past experiences of domestic violence. While the Tribunal finds that the applicant’s claims that she was repeatedly beaten [in] 2014 may have been exaggerated and overstated, the Tribunal accepts that the applicant has been subjected to domestic violence and that she has separated from her husband as a result of domestic violence. In reaching this conclusion, the Tribunal has considered the court transcript and the fact that the court did not consider it appropriate to make any final apprehended violence order. However, and as stated, the Tribunal is persuaded by [Ms C]’s testimony and the applicant’s actions after she met[Ms C].

   44.DFAT reports that credible non-government organisations in India have also described very high prevalence of domestic violence and the Tribunal considers that the DFAT advice also adds weight to the applicant's claims.

   45.On the evidence before it the Tribunal accepts that the applicant's husband and family have been violent and exploitative towards her since their marriage in August 2010. The Tribunal accepts that harm constitutes serious harm for the purposes of s.91R(2).

   46.It is necessary, however, to consider whether one or more of the five Convention reasons is the essential and significant reason for the harm which the applicant fears at the hands of her husband and his family.

   47.As the applicant does not suggest that she fears being persecuted for reasons of her race, religion, nationality or political opinion, the only relevant ground is her membership of a 'particular social group' in India. In Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36], Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of a particular social group: '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".'

   48.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 feared for reasons of the person's membership of the particular social group.

   49.A group in a particular society may form a 'particular social group' for the purposes of the Refugees Convention in that they have identifiable characteristics or attributes common to all members of the group and which distinguish them as a group from society as a whole: see Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at paragraphs [32] to [35] per Gleeson CJ, and at paragraphs [81] to [83] per McHugh and Gummow JJ where the particular group was women.

   50.While the harm that the applicant fears is based on what could be categorized as a private matter, the High Court held in Khawar, referred to above, the relevant Convention reason can be found in the state toleration of domestic violence and the systematic discriminatory implementation of the law: see Khawar at [26] per Gleeson CJ and at [84] to [87] per McHugh and Gummow JJ.

   51.In this context it is not sufficient to show maladministration, incompetence or ineptitude by the police or that the systemic failure is due to a shortage of resources.

   52.The Tribunal accepts that the applicant is a separated woman who has suffered domestic violence. The Tribunal also accepts the country information that states that separated woman in Indian society are stigmatised. The Tribunal also accepts that because rape within marriage is not a crime and there remains a very high prevalence of domestic violence, there are entrenched attitudes which regard the potential domestic violence that the applicant will suffer as an internal family matter. Accordingly, the Tribunal is satisfied that the police will withhold or will be unable to provide adequate protection to the applicant from her husband and his family.

   53.The Tribunal finds on the evidence before it that there is a systematic discriminatory failure on the part of the Indian authorities to protect separated women from domestic violence for reasons of their membership of the particular social group of separated women in India of the sort referred to by the High Court in Khawar. The Tribunal considers that the harm which the applicant fears amounts to persecution involving 'serious harm' as required by paragraph 91R(1)(b) of the Act in that it involves a threat to her life or significant physical harassment or ill-treatment.

   54.The Tribunal considers that her membership of the 'particular social group' of separated women in India is the essential and significant reason for the persecution which she fears, as required by paragraph 91R(1)(a) of the Act. The Tribunal further considers that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c), in that it is deliberate or intentional and involves her selective harassment for a Convention reason.

   55.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 has not been in Australia. While the applicant has also stated that her intention is to divorce and never see her husband, the Tribunal also notes that the parties have a child together and in such circumstances, the Tribunal accepts the applicant’s arguments that her husband will continue to seek her out in order to have contact with [their child]. Considering her husband’s conduct towards the applicant 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]. This risk is exacerbated because the Tribunal accepts the applicant’s evidence that she would return without family support or a home and the Tribunal considers that this evidence is supported by DFAT advice that divorced women face negative attitudes in society. It follows that the Tribunal finds that the applicant has a real chance of persecution for reasons of her membership of a particular social group if she returns to her [home], [India] now or in the reasonably foreseeable future.

   Relocation

   56.The Tribunal has had regard to the fact that the applicant is a [age]year old woman who prior to coming to Australia, had never worked and had lived only at her family home and at the home of her husband's family. The Tribunal has accepted that she has been seriously harmed by the husband and his family 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[her home city]. The Tribunal has also accepted that she will have no family support. The Tribunal also accepts that the applicant has no qualifications or work experience and has a child with her who she has to look after. Since the evidence shows that the systematic discriminatory failure on the part of the Indian Government to protect women from domestic violence applies throughout India the Tribunal considers that there is no part of India to which the applicant could reasonably relocate where she would be safe from the persecution In the particular circumstances of the applicant, the Tribunal accepts that relocation within India is not reasonable.

   57.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).

   DECISION

   58.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.

   Angela Cranston
   Member