1515100 (Refugee)

1515100 (Refugee) [2018] AATA 1425 (19 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515100
COUNTRY OF REFERENCE:                  India
MEMBERS:Amanda Paxton (Presiding)

Nora Lamont
DATE:19 April 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 19 April 2018 at 10:43am
Statement made on 19 April 2018 at 11:19am

CATCHWORDS
Refugee – Protection visa – India – Social group – Domestic violence victim – Divorced women with no male protection
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 29 November 2013 and the delegate refused to grant the visa on 30 October 2015.
The applicant appeared before a Tribunal constituted by two Members on 19 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review by her registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken into account 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is an Indian national born [date] in [Town 1] Haryana, India and she identifies as Hindu. The applicant presented her claims in her protection visa application on 29 November 2013 and in the Departmental interview on 24 February 2015. The applicant appeared before the Tribunal on 14 September 2017.
The applicant’s claims can be summarised as follows:
Claims against the applicant’s ex-husband
·The applicant was married in an arranged marriage and her husband was abusive, often beating her. The applicant and her husband had a child born on [date]. The applicant’s parents-in-law with whom she lived would also often beat her son.
·In 2008 the applicant’s husband and family forced her to apply for a student visa to Australia as a way for them to make money in a western country. The applicant applied for and was granted a student visa to study [a course] in [State 1] and the applicant and her husband arrived in Australia on 3 May 2008. The applicant’s son remained in India living with her husband’s parents.
·The applicant returned to India from [date] November 2008 until [date] December 2008 because her husband’s behaviour was “not good” and she went to speak with his family about his behaviour and to see her son. She stayed with her husband’s parents who told her that their son used her to come to Australia. One night they tried to kill her and her son. The applicant’s mother-in-law rang the applicant’s husband in Australia while she was staying in her in-laws house and he told his mother to go ahead and “kill them”. She and her son ran away from the home and she returned to her family home.
·On her return to Australia in 2008, the applicant told the Department about her husband’s behaviour but they did not do anything about it.
·In 2009, her husband returned to India for a visit and while he was away the applicant went to the Department and had his visa cancelled. When the applicant’s husband attempted to return to Australia he was not allowed to board his flight in New Delhi as he no longer held a valid visa.
·The applicant returned again to India to see her son and family from [date] December 2009 until [date] February 2010. While in India she was summonsed to court for mediation because her husband wanted them to get back together so he could return to Australia. She spoke to an officer of the court separately from her husband and told him how her husband had treated her, but the judge and lawyer said she should return to her husband. Her husband wanted her to “write documents” indicating that they live together happily and that she wanted him to be issued a visa. She refused and came back to Australia two weeks later.
·The applicant’s husband’s family often went to her parents’ home looking for her and demanding money from her family, saying that it was owed to them because the applicant was in Australia earing money and she had cancelled their son’s visa. They wanted to recoup the money they spent sending her to Australia.
·When she returned from court, she went to her parents’ house but they told her she should go back to her husband’s house, even though her husband said he did not want her there and she should be killed.
·The applicant stayed at her [relative]’s place about 20 kilometres away from her husband’s village. She made a successful application to the court to make arrangements for her son to live with her parents because she feared that something would happen to him at her husband’s house.
·In 2010, the applicant returned again to India and stayed with her [relative] from [date] November until [date] November 2010. Her husband’s family had gone to court claiming that her parents were not looking after her son and seeking custody. Herson attended court and told the court he wanted to stay with her parents. The court agreed that custody of her son should remain with her parents.
·The applicant returned to India [in] July 2011 and remained [until] August 2011 to see her son and father who were both sick at the time. The applicant returned to India again from [date] November 2012 until [date] December 2012. She did not have contact with her husband on these occasions.
·In 2013, the applicant divorced her husband in Australia. She does not know if her husband knows about the divorce.
·[In] May 2013 the applicant travelled again to India, staying until [June] 2013 as herson was sick. The applicant had no contact with her now ex-husband while in India.
·The Khap Panchayat, the council of village elders, will not recognise the applicant’s divorce from her ex-husband and will force her to return to live with him. In her community all marriages are arranged and obtaining a divorce is not easy because the community believes that as a woman you do not have a right to divorce and that you have to stay with your husband. Regardless of India’s divorce laws, the Khap Panchayat, make the rules and you have to follow them.
- The applicant will be forced to return to her husband and his family and she will not be afforded protection from the police.
·The applicant fears that if she is returned to India her ex-husband and his family will kill her.
Claims against the applicant’s ex-partner
·     In December 2008, the applicant commenced a relationship with an Indian man who was living in Australia. The relationship continued until [date] November 2011 when the applicant was sexually assaulted by her then partner in her home in [State 1].
·     The applicant reported the matter to the police and her partner was charged and convicted of sexual assault.
·     The applicant’s ex-partner’s family went to the home of her parents to demand that they persuade the applicant to write a character reference, a “good behaviour letter”, for her ex-partner to present to the court at sentencing. In Australia, the applicant’s ex-partner forced her, sitting next to her, to write this letter so he would receive a lighter sentence. She did this because she did not want her family to be in danger from her ex-partner’s family.
·     The applicant subsequently moved from [State 1] to [interstate] because she feared her ex-partner.
·     The applicant’s ex-partner was sentenced to [number of months] in prison and was then either returned or removed back to India upon completion of his sentence in 2014.
·     Her ex-partner, who is married with children in India, has made contact with her mother three or four times and he and his family say she has ruined their family reputation in the community and that it was her fault that he was convicted and went to prison in Australia. In addition, they are angry that due to his conviction he will most likely be unable to obtain a visa to return to Australia.
·     The applicant fears that her ex-partner will kill her if she is returned to India. The applicant would be easy to find as they are from the same caste, community and culture and have common relatives and friends connected through arranged marriages.
·     Violence against women is a part of Indian culture and the applicant is considered a “troublemaker” by both her ex-husband and ex-partner’s families and the only way to deal with this is to punish her, even with death.
Claims against state and police
·     The applicant claims that if she is returned to India she will not be protected by the police as they have a lax attitude towards the mistreatment of women and it is well known that the Indian law and order system is corrupt. The applicant fears she would have to pay large sums of money to the police in order to obtain protection and she could not afford it.
·     The Khap Panchayat controls the village and what women can and cannot do and the police will not be able to stop them from forcing her to return to her husband.
Membership of a particular social group
The applicant’s representatives submitted to the Tribunal that the applicant is at risk of persecution due to her membership of a particular social group namely:
·Single/divorced women in India
·Single mother in India
·Single/divorced women in India without male protection
·Single/divorced women who experienced domestic violence
·Women who breached social and cultural norms by separating from their husbands, living with a man outside of wedlock, bringing a sexual assault case against her domestic partner.
Mental health
The applicant has provided evidence that she has been receiving mental health therapy through Monash Health and South Eastern Centre Against Sexual Assault & Family Violence (CASA).[1] The applicant has received counselling at CASA a total of 36 times since 2014. A report from the applicant’s counsellor suggests the applicant has post-traumatic stress disorder (PTSD), flashbacks, depression and suicidal thoughts and notes the applicant was hospitalised in 2015 for suicidal thoughts. The Tribunal accepts the applicant has mental health concerns as identified by her counsellor and that she displays symptoms of PTSD. The Tribunal notes the applicant’s counsellor’s opinion that due to depression and PTSD symptoms the applicant does not have the mental stamina or necessary protective resources to cope as a woman in India in her circumstances. In the counsellor’s view, the applicant’s mental health will therefore deteriorate to such a level that she will be deemed a high suicide risk if she is returned to India.[2]
[1] AAT 1515100, f.87.
[2] AAT 1515100, f.87.
Assessment of claims
In assessing the applicant’s oral evidence, the Tribunal considered that she has provided information indicating that she displays symptoms of PTSD and depression. The Tribunal had regard to the AAT’s ‘Guidelines on Vulnerable Persons’ and encouraged the applicant to make the Tribunal aware if she had concerns that she was unable to present her evidence and argument or if she needed a break for any reason. The Tribunal indicated willingness to seek assistance from the applicant’s representative if any concerns developed. The Tribunal remained alert for any evidence that the applicant was unable to present evidence and argument. However, the Tribunal found the applicant responded appropriately to questions and the Tribunal identified no reason to consider that the applicant experienced difficulties in presenting her evidence. The Tribunal is satisfied the applicant was fully able to present evidence and arguments.
Country of nationality
The applicant travelled to Australia on a valid Indian passport and stated she was a national of India. The applicant provided her Indian passport at her Departmental protection visa interview and brought her passport to the Tribunal hearing. The Tribunal is satisfied the applicant is a citizen of India and India is her receiving country. Therefore the Tribunal has assessed the applicant’s claims against India as her country of nationality and receiving country for complementary protection purposes.
Harm from the applicant’s ex-husband

The Tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of significant harm arising from her relationship with her ex-husband. On the basis of the documentary evidence before it and the oral evidence of the applicant, the Tribunal accepts the applicant was married [in] February 2005 in an arranged marriage and that the applicant and her ex-husband have a son from that marriage.
The Tribunal accepts, on the basis of the applicant’s consistent evidence, that the applicant did not feel secure at the home of her parents-in-law but given that they had the opportunity to harm her and her child when she was under their roof, but did not, the Tribunal does not accept that her parents-in-law intended to kill her or that their conduct at that time was or is indicative that they will harm the applicant in the future. Further the Tribunal accepts that the applicant was afraid and stated she thought her parents-in-law would kill her and her son whilst at their house and she ran away. However the Tribunal does not accept that the parents-in-law tried to kill the applicant and her son as it is inconsistent with the parents-in-law and ex-husband’s bid in the court to get custody of the applicant’s son.
On the basis of the applicant’s consistent evidence, the Tribunal accepts that as a result of the applicant’s approach to the Department in 2009, when her then husband was visiting India, the Department cancelled the applicant’s then husband’s visa to Australia. The Tribunal accepts that when the applicant’s then husband sought to return to Australia in 2009, the airline refused to board him. On the oral evidence of the applicant, the Tribunal accepts that the applicant’s former husband and his family were angry with the applicant that he could not return to Australia where he had opportunity to work and that they may have felt humiliated by the applicant.
On the basis of written and oral evidence presented the Tribunal accepts that the applicant’s ex-husband and his family visited her parents’ home looking for the applicant and demanding money.
On the basis of the divorce documentation before it and the consistent evidence of the applicant, the Tribunal accepts the applicant initiated divorce proceedings in Australia and she and her husband were divorced in 2013. On the oral evidence of the applicant, the Tribunal accepts that the applicant does not know whether her ex-husband received the divorce papers. Given the passage of time of some five years since the divorce and almost ten years since the applicant has had contact with her ex-husband the Tribunal does not accept the applicant’s claims that if the ex-husband finds out about the divorce he will find the applicant and harm her. The Tribunal considers it likely that the applicant’s ex-husband is aware of the divorce.
On the basis of the applicant’s affidavit dated 19 May 2017, and the applicant’s oral evidence, the Tribunal accepts that the applicant left her son with her parents when he was [very young]. The Tribunal notes and accepts the applicant’s father’s written statement to the police station in [Town 1] in August 2009 reporting that the applicant’s ex-husband had gone to the village “with some goons and tried to forcefully take away the child and he beat and abused his wife and threatened to remove the child”.[3]
[3] AAT 1515100, f.53.
The Tribunal accepts that in 2012, the applicant’s ex-husband applied to the court for custody of the applicant’s son, but this was refused when the court took into account the child’s wish to remain with his maternal grandparents. The Tribunal accepts the applicant’s oral evidence that she has not had contact with her ex-husband since 2012.
In considering whether the applicant has a real chance of serious harm or a real risk of significant harm from her ex-husband and his family, the Tribunal has taken into account the facts as accepted above. The Tribunal also notes that the applicant has been back to India, where she has stayed with her family or her [relative], eight times since her initial arrival in 2008. The Tribunal takes into account that the applicant has had no face to face meeting or confrontation with her ex-husband since she was in India in 2010, after their separation. The Tribunal considers that eight visits over a nine year period is a significant number, and typically for a three or four week period, which the Tribunal considers would give the applicant’s husband’s family opportunity to locate the applicant if they so intended. The Tribunal accepts the applicant’s oral evidence that she has stayed with her [relative] on her return and has stayed with her family for short periods of time only, but considers that given the claimed closeness of the social relationship between the applicant’s family and her ex-husband’s family, the applicant’s ex-husband’s family would have become aware of her presence and approached her had they had any intention of harming her. The Tribunal does not accept that the applicant’s ex-husband or her parents-in-law had the intention of harming the applicant, as they would have had the opportunity to do so at an earlier time.
Looking to the future, the Tribunal accepts that the applicant’s ex-husband and his family will become aware of her return to India. The Tribunal has also considered that the applicant’s last contact with her ex-husband occurred over five years ago. Given the passage of time, which the Tribunal considers to be significant, the Tribunal considers that the chance the applicant faces reprisal from her ex-husband and his family on return to India is remote. The Tribunal does not accept the applicant has a real chance or a real risk of harm on return to India on this basis.
In making this finding, the Tribunal has taken account of the applicant’s claim that she did not return to India in November 2016 in the period of her father’s last illness and his funeral, and acknowledges the applicant may have a subjective fear of return. However, the Tribunal has also considered that the applicant has returned to her home area numerous times and that a period of five years has now elapsed since her last contact with her ex-husband. On the evidence before it, the Tribunal does not accept the applicant has a well-founded fear of persecution or has a real risk of significant harm for this reason.
The Tribunal has considered the applicant’s claim that she will be forced to return to her ex-husband by the Khap Panchcayat which will not recognise her divorce. In her written statement, the applicant claims that her parents told her that the Khap Panchcayat had instructed that if she returns to India she is to resume her marriage and live again with her ex-husband. At the hearing, the applicant indicated that she made this claim on the basis that while her Australian divorce is recognised under Indian law, the Khap Panchayat will overlook this. In considering this claim, the Tribunal notes that as discussed with the applicant at hearing, divorce is legally recognised in India and marriages and divorce are a state and national matter governed by the various marriage acts in India.[4] The Tribunal recognises India’s Constitution does indeed recognise self-governing ‘panchayats’ at the village, intermediate and district levels as well as larger urban municipal corporations and city councils.[5] The Tribunal has considered the applicant’s claim she will be forced by the Khap Panchayat to return to her ex-husband but given the legal status of her divorce and given that the applicant has not lived in her local village since 2008 and her ex-husband is from a village over 35 kilometres away, the Tribunal considers that the chance the local Khap Panchayat will force the applicant to return to her ex-husband to be remote. In reaching this conclusion, the Tribunal also takes into account that since separating from her husband the applicant has returned to India five times and has not been forced by any entity to return to her ex-husband on any of these occasions. On the evidence before it, the Tribunal does not accept the Khap Panchayat will force the applicant to return to her ex-husband.
[4] Family Law in India: overview,
[5] DFAT Country Information Report India, 15 July 2015.
The Tribunal has considered the applicant’s claim that her ex-husband and family will take her son from her on her return to India. The Tribunal has considered that according to the applicant, her ex-husband and his family have not attempted to take her son back from the applicant’s mother since 2012 when a court ruled that the son was to live with the applicant’s mother. The son is now [age] years old. In these circumstances, the Tribunal considers that the chance the applicant’s ex-husband and his family will take her son or harm him in any way is remote. The Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm on this basis.
The Tribunal has considered the applicant’s claim that her ex-husband and his family will kill the applicant on her return to India. In considering whether there is a real chance or a real risk the applicant’s husband and family will harm the applicant, as above the Tribunal accepts the applicant’s claim that they asked her mother for money and that the applicant’s mother was attacked by the ex-husband however this was under different circumstances when the ex-husband was attempting to retrieve his son.
The Tribunal has also considered that the applicant waited four years after her husband was removed from her visa to apply for protection. The applicant also applied for a student visa in March 2012 and a regional sponsored visa in June 2012. The Tribunal considers there is a significant gap between the time when the applicant’s relationship with her ex-husband ended and when she lodged her protection application. The Tribunal would expect the applicant to have applied for a protection visa at the earliest possible time if she needed protection in India. The Tribunal considers this is not consistent with her claim to need protection.
Taking into account all the findings, the Tribunal finds that the applicant does not face a real chance of persecution now or in the foreseeable future from her ex-husband and his family or their agents such as the Khap Panchayat for reasons of her membership of a particular social group, “single/divorced women in India”, “single mother in India”, “single/divorced women in India without male protection”, “single/divorced women who experience domestic violence” or any other reason.
The Tribunal has also had regard to relevant country information, discussed with the applicant, indicating that persistent discrimination for women in India and the ongoing cultural preferences for males.[6] The Tribunal acknowledges there is discrimination against women in India. However, in the circumstances of the applicant, the Tribunal is not satisfied that she faces discrimination amounting to serious harm. The Tribunal does not accept the applicant has a well-founded fear of persecution on this basis.
[6] DFAT Country Information Report India, 15 July 2015.
Having regard to the applicant’s circumstances and the findings above, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will suffer significant harm from her ex-husband, his family or agents.
Harm from ex-partner
The Tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of significant harm from her ex-partner. On the basis of the documentary evidence before it and the oral evidence of the applicant, the Tribunal accepts the applicant met her ex-partner, an Indian national from the applicant’s caste and area in India, in [State 1] in 2008. The Tribunal accepts the applicant was sexually assaulted by her ex-partner, who was subsequently charged and tried for the offence. The Tribunal further accepts that the applicant’s ex-partner’s family visited her family to persuade her to write a character reference for him so he had a positive statement from her in his court proceedings. The Tribunal accepts that the applicant’s ex-partner sat with her indicating what she should write and that she felt intimidated and under pressure to write a letter for the court.
The Tribunal accepts that the applicant provided her ex-partner with such a letter, and he was sentenced to [number of months] imprisonment. The Tribunal accepts that given the fact the ex-partner’s family went to the applicant’s family they do know where her family lives in India. However, the Tribunal notes that this contact was in the context of the sentencing of the applicant in respect of his sexual assault conviction. In the view of the Tribunal, this conduct was specific to the circumstances of attempts to minimise the sentence imposed on the ex-partner. The Tribunal also takes into account that this occurred in 2011. Given the specificity and given the passage of time since these events, the Tribunal considers the chance the applicant faces serious or significant harm on this basis is remote.
The Tribunal accepts the applicant’s oral evidence that her ex-partner was released from prison in 2014 and she believes he returned to India although she does not know how he departed Australia, whether voluntarily or whether he was deported.
The Tribunal accepts that the ex-partner made several contacts with the applicant’s mother upon his return to India.
The Tribunal accepts the applicant’s evidence that her ex-partner is married, and does not come from the same village. The applicant claims that they are from the same caste and connected through arranged marriages. Yet the applicant has not been in India since 2013 and has had no contact with her ex-partner since his release from prison.
The Tribunal accepts that the ex-partner was violent in the past. The Tribunal accepts the applicant was in a domestic relationship with her ex-partner from 2008 until 2011 when the ex-partner sexually assaulted the applicant. The Tribunal accepts that the applicant was abused in this relationship which culminated in a serious assault, arrest, conviction and prison time. The applicant however, has been out of this relationship since 2011 and has not had any contact with her ex-partner since that time. The Tribunal accepts that the applicant was in a violent abusive relationship; however the applicant upon return to India will not be in the relationship and the ex-partner is married with children and does not live in her home village.
In considering the evidence before it, the Tribunal finds there is not a real chance of serious harm from the applicant’s ex-partner. Further, the Tribunal notes that the ex-partner knows where the applicant’s family lives and the ex-partner and his family have had the opportunity to harm the applicant’s mother and son over the past three years but they have not done so.
Discrimination as a single/divorced woman/single mother
The Tribunal accepts that the applicant will be returning to India as a single/divorced woman/single mother and a woman who has lived with a man outside of wedlock. The Tribunal also accepts that the applicant may find it difficult to adjust to being back in India as a single/divorced woman. Further, the Tribunal acknowledges that there is no uniform code in India which means that under India’s system of personal laws, rights for women on issues of marriage and divorce can differ between religions and states. This results in persistent discrimination for the majority of women in India.[7] However, in the case of the applicant the Tribunal notes that on return to India, she will have the practical and emotional support of her mother and [siblings]. The Tribunal also notes that the applicant’s mother has been living alone since her husband passed away as a single woman caring for the applicant’s son and the applicant did not report that her mother had experienced any difficulties arising from her status as a single-woman living alone or single woman caring for a child. Further, the Tribunal notes the applicant has [brothers] who can provide male protection to the applicant and her mother. The Tribunal draws from this evidence that the applicant in her circumstances does not have a real chance of serious harm or a real risk of significant harm upon return to India due to being a single divorced woman or as a single parent.
[7] DFAT Country Information Report India, 15 July 2015.
The applicant claims that violence against women is a part of Indian culture and the applicant is considered a “troublemaker” by both her ex-husband’s and ex-partner’s families and the only way to deal with this is to punish her, even with death. The Tribunal has regard for the country information indicating that there are multiple laws in place in India in regard to the protection of women which was discussed with the applicant at the hearing. At a national level, laws and policies have been put in place to prevent and respond to violence against women. These include the Penal Code, the Criminal Law (Amendment) Act 2013 (India), and the Sexual Harassment of Women at Workplace Act (Prevention, Prohibition and Redressal) Act 2013 (India) among many other laws for the protection of women in India.[8] Given the relevant country information and the passage of time the Tribunal does not accept that the applicant would be punished and or suffer death from her ex-husband or ex-partner upon return to India for being a troublemaker.
[8] Country Information and Guidance UK Home Office India: Women fearing gender-based harm/violence, April 2015.
The applicant claims that she will be harmed upon return to India for living with a man outside of wedlock and for bringing a sexual assault case against a domestic partner. The Tribunal accepts that the applicant was living with a man outside of wedlock whilst in Australia from 2008-2011. However, that relationship ended in 2011 when the applicant’s partner sexually assaulted her and was sentenced to a prison term. The applicant herself has had no contact with her former domestic partner since that time. The Tribunal finds that with the passage of time (nine years have passed) since the applicant was living with her partner and he assaulted her that there is not a real chance of serious harm upon her return to India. Further the Tribunal considers that given the passage of time and given the out of wedlock relationship occurred in Australia, adverse community interest in the applicant for this reason is remote. The Tribunal does not accept there is real chance the applicant faces serious or significant harm from the community for this reason.
Mental health
The Tribunal has taken into account the applicant’s mental health symptoms and noted the counselling reports provided. However, the Tribunal finds that the applicant will not be alone upon return to India as she has her mother for support and also her [age] year old son. Further, the Tribunal notes that the applicant has stated she stays with her [relative] when she visits India and her [relative] can also offer her support upon return. Relevant country information suggests that India’s health indicators have improved over the past decade and the Indian government develops and monitors national standards and disburses funding for the states to implement programs.[9] The Tribunal finds there is nothing to suggest that the applicant would not have the support of her family members upon return to India to assist her with her mental health symptoms. Further, the Tribunal finds there is nothing to indicate that the applicant would be denied access to mental health services and medication upon her return to India for a Convention based reason or any other reason.
[9] DFAT Country Information Report India, 15 July 2015.

The Tribunal has considered all of its findings above both singularly and cumulatively, and finds there is not a real chance the applicant will be persecuted for reason of her membership of a particular social group, single-divorced women in India/single mother in India/single-divorced women in India without male protection/single-divorced women who experience domestic violence/women who breached social and cultural norms by separating from their husbands, living with a man outside of wedlock, bringing a sexual assault case against her domestic partner, or any Convention reason if she returns to India now or in the foreseeable future. The Tribunal finds the applicant does not have a well-founded fear of persecution on this basis.
Complimentary protection
Considering the applicant’s individual circumstances and the country information before it, the Tribunal does not accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to India, there is a real risk that the applicant will suffer significant harm from her ex-husband, her ex-husband’s family, her ex-partner or his family, the Khap Panchayat, or from the police, or anyone else. The Tribunal accepts that the applicant has been in an abusive relationship with her ex-husband and her ex-partner who sexually assaulted her, but finds that with the passage of time and the distance between the applicant and her ex-husband and ex-partner and in the absence of any evidence of recent threats, that she does not face a real risk of significant harm on return to India.
The Tribunal has considered the applicant’s claims singularly and cumulatively. On the evidence before the Tribunal and having regard to the Tribunal’s findings of fact above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment as defined. Accordingly, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa).
State protection
The applicant claims she will not be afforded protection by the police or authorities upon return to India as a single woman and as a single divorced woman and single mother because they have a lax attitude towards the mistreatment of women and because it is well known that the Indian law and order system is corrupt. She also indicated that in her culture it is not acceptable to go to the police for assistance.
The Tribunal has found above that the applicant does not have a well-founded fear of persecution for any reason or a real risk of significant harm on return to India at the hands of her ex-husband, her ex-partner, the community or anyone else. The Tribunal has therefore not addressed the applicant’s claims that she will be denied effective protection from state authorities.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Paxton
Member

Nora Lamont
Member

[2018] AATA 1425

19 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction