1600479 (Refugee)

[2018] AATA 4148

1600479 (Refugee) [2018] AATA 4148 (15 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600479

COUNTRY OF REFERENCE:                  India

MEMBER:Melissa McAdam

DATE:15 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2018 at 11:59am

CATCHWORDS

REFUGEE – protection Visa – India ­– religion – Sikh – race – ethnic Punjabi– applicant converted to Islam – family violence victim – experienced ostracism from some members of the Sikh community in Australia – Membership of a particular social group – a divorced woman from a Sikh family who has re-married a non-Indian Muslim – a Muslim, lone woman and mother without family support – state protection not available – relocation not reasonable – applicant would be exposed to a significant risk of sexual violence and gender-based discrimination in Nepal – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91,499

Migration Regulations 1994, Schedule 2

CASES

MIMAC v SZRHU [2013] FCAFC 91

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of India, applied for the visa on 10 December 2014 and the delegate refused to grant the visa on 7 January 2016.

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

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    SUMMARY OF CLAIMS AND EVIDENCE

    Protection visa application

19. The following is a summary of the claims and information provided by the applicant in her Protection visa application:

    a.The applicant was born on [date of birth] in [Punjab], India. She submitted a copy of her Indian passport issued in Chandigarh in [2008].

    b.She is ethnic Punjabi and of Muslim religion.

    c.She graduated with a [degree] from [a] University.  She worked [in] India.

    d.In 2006 she married [Mr A] and they had a daughter who now lives with her husband’s parents. She divorced her first husband in June 2014 and married her second husband in Australia in [2014].

    e.Her parents, brother, step-sister and daughter, [are] in India.

    f.She was born into a Sikh family in India and she practiced the Sikh religion all her life.

    g.She came to Australia to study, with her ex-husband, on 17 June 2009 on a Student visa. Her last student visa was valid until 10 April 2017.

    h.She was a victim of family violence from her ex-husband. He was very cruel and would bash her and lock her in her room.  He also transferred all her salary to his account.

    i.She started having major problems with her ex-husband in January 2013. She told her parents she did not want to continue in the marriage. She moved into a separate room.  Many times she slept in a nearby park because of her ex-husband’s mistreatment.

    j.One night in October 2013 her ex-husband told the applicant not to come home.  It was raining heavily and she had nowhere to go so she stayed overnight at [a public venue].  When she returned home the next day her ex-husband accused her of having an affair. He hit and kicked her. She started bleeding and fainted.

    k.In December 2013 her ex-husband started hitting her and she phoned the police.  The police advised her to go to a friend’s home and ordered her ex-husband not to follow her. In January 2014 she returned to the home to collect her belongings. Her ex-husband was not there. She learned he had returned to India with all her documents, jewellery, money, laptop, etc.

    l.Her ex-husband remarried in India in March 2014. The applicant divorced him in June 2014.

    m.In about November 2013 she met her now husband, [Mr B]. They became good friends.  He is a devout Muslim and the applicant learned about Islam from him. She also read the Quran in English. She was fascinated by Islam and [Mr B]’s good behaviour convinced her to convert to Islam.

    n.She converted to Islam [in] 2014 on the same day she married [Mr B].  She lives very happily with him.  She is known [by a Muslim name] amongst her friends.

    o.Since she has converted to Islam her ex-husband’s friends in Australia and India have been threatening her over the phone. Her ex-husband’s cousin and his friend are living in Australia. They have threatened and verbally assaulted the applicant over the phone.

    p.Her ex-husband has threatened the applicant’s parents and told them if he finds her in India he will kill her.

    q.She is facing serious discrimination because of her conversion. The college where she studied in Australia is owned by a Sikh family.  They learned of the applicant’s religious conversion and made it difficult for her to complete her final subject. She worked [in a workplace] in Australia with other Sikhs. After her conversion they stopped helping her and sharing meals with her. She was threatened and left her work.  She and her husband were refused accommodation by one of her Sikh classmates.

    r.She believes she will be killed in India because she is now a Muslim.

    s.She submitted the following document copies with her application:

    i.Her [Marriage] Certificate to [Mr B] , dated [date] 2014.

    ii.A Certificate of Marriage for the applicant from Sheikh [name], Minister of Religion.

    iii.An Islamic Marriage Certificate for the applicant dated [date] 2014.

    iv.A declaration by the applicant on a ‘Supreme Islamic Shiite Council’ form that she is Muslim, dated [date] 2014.

    v.An Australian Federal Circuit Court Divorce Order for the applicant, dated [date] 2014, declaring her divorced from [Mr A].

    vi.An Indian Marriage Certificate for the applicant and [Mr A], dated [date] 2006.

    vii.An Advanced Diploma [for] the applicant, dated 9 April 2014.

    viii.A Diploma [for] the applicant, dated 8 April 2013.

    ix.A Certificate [for] the applicant, dated 9 October 2012.

    x.An Advanced Diploma [for] the applicant, dated 2 December 2011.

    xi.A Health Form for the applicant.

    xii.Email messages dated 19 January 2014, 6 January 2014, 7 January 2014,and 21 January 2014, in another language, described as ‘Threatening messages from ex-husband’.

20. The applicant later submitted the following documents:

    i.Copy of a news article in another language.

    ii.Copy of a ‘Pubic Notice’ in [a specified Indian newspaper], dated [date] December 2014, stating that [Mr C] declares his daughter [the applicant] out of his control and disowned and that to deal with her is at a person’s own risk.

    iii.A notarised Declaration in another language, with an English translation stating it is an: Affidavit from [Mr C], who states that his daughter [the applicant], [married] a Muslim without their consent and she has changed her religion; that they are unhappy about this; that they revoke all their daughter’s rights to their movable and immovable property; and that she must not be allowed to return to India.

    Departmental Interview, 6 November 2015

21. The following is a summary of the claims and information provided by the applicant in her Departmental Interview:

    a.Her parents disowned the applicant when she married [Mr B]. They told the community she was disowned and would be killed if she returns. Her ex-husband said he will her if she returns.

    b.She had good attendance and results at her college.  After she married [Mr B], her ex-husband told the college she was immoral.  The college said her assignments were not good enough and sked her to pay more money to re-enrol in the assignments. The college would later not allow her to enrol in another course after she gained her certificate.

    c.Her ex-husband locked her in her room and hit her. She called the police three times. She has a card from the police. She showed it during her divorce proceedings.

    d.Her ex-husband left Australia on 7 January 2014. He took her property.

    e.Her ex-husband filmed them both having sex and distributed the film in her community.  She found this out after she married [Mr B]. Her parents told her she had been doing this. Her ex-husband doctored the films.

    f.In her ex-husband’s family, male relatives have killed people.

    g.Her ex-husband’s cousins would call her by phone and threaten her.  She is fearful when she sees them at the markets. She has changed her phone number.  She doesn’t go anywhere without [Mr B].  She told the police but they want evidence.

    h.She has blocked her email account to stop receiving the threatening emails. The emails she submitted state that the day she arrives in India they will see to her. She did not inform the Indian consulate about the emails she received because no one told her she could.

    i.Her father has placed a disowning notice in a newspaper.

    j.Her father’s cousins financially supported her last student visa application, in February 2014, because they did not know she was in a relationship with [Mr B] then. They only knew she was living in his house, but not that she was alone there with him.

    k.Her parents were supportive of her for a while after her ex-husband returned to India. He got married in India so they supported her.  She had no intention of converting and marrying [Mr B] at the time.

    l.Her ex-husband wants to harm her because she had his Student visa cancelled. He wanted to bring his girlfriend to Australia and for the three of them to live together.

    m.Her ex-husband became resentful of her and became aggressive towards her. She knew he was having an affair for over a year but only started speaking up about it after a long while.  He still wants to harm her now because he holds a grudge and thinks she should have stayed married to him.

    n.Her ex-husband and parents have told her if she comes back to India they will kill her. She comes from a village. She has shamed the family.  The community knows what she has done.  The police will not help her. The police rape women and do atrocities in India.

    o.She cannot take her husband to India because he is Afghan. There is a conflict between Afghans and Indians in India.

    Delegate’s Decision

22. The Delegate accepted the applicant had converted to Islam and married a Muslim man. She accepted the applicant has experienced ostracism from some members of the Sikh community in Australia.

23. The Delegate considered the newspaper notices were produced at the applicant’s request and gave them little weight. She noted they were dated the day before the date on which the applicant lodged her Protection visa application.

24. The Delegate concluded that the applicant’s parents support her despite her marriage to a Muslim.

25. She found that the applicant’s ex-husband had remarried and would not have any interest in harming her now.

26. The Delegate did not find it credible that the applicant would be seriously harmed by her ex-husband, or her family, or her ex-husband’s family in India.

    Information to the Tribunal

    Tribunal Hearing

27. The applicant appeared before the Tribunal on 17 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The following is a summary of the information provided by the applicant at the hearing:

    a.The applicant’s parents, brother, brother’s family, and her other blood relatives are all in India.  They mostly live in [a town]. Some of her relatives live in [various places in India].  Her ex-husband and his family are also in India, in [Punjab].

    b.All of her family and relatives follow the Sikh religion.

    c.She no longer has any communication with her family or relatives.

    d.There was a problem with her pregnancy [and] her hospital in [Australia] asked her for the medical report from her previous caesarean operation in India. She rang her home to ask her family for a copy of the report but they had changed their number. She then called a cousin who refused to speak with her. She then rang the Indian hospital where she had had the operation however the doctor found out she has changed her religion and remarried in Australia so refused to give her the report.  She was therefore transferred to a larger hospital in [Australia] because of the risk of her unknown medical history. There is a note in her Australian hospital medical file about this. She will try to find the record and submit it to the Tribunal.

    e.The last time she spoke with her mother was in about 2015. During the call she could hear her father swearing and saying he would kill her if she returns.  Her mother told her they would not let her return to them because she has become Muslim and has lost their love and trust.

    f.She no longer has any contact with her ex-husband.

    g.She last went to India in 2013. She told her family about her then husband’s violence and his girlfriend.  Her family told her that everything will be alright, and that with time things would settle down. They told her just take care of him and look after him.

    h.Her new husband, [Mr B], is an asylum-seeker in Australia.  He has never been to India.  He has no right to enter or live in India. Their child was born in [year].  He does not have an Indian passport. She went to the Indian embassy in Australia to renew her passport. The staff were rude to her and made comments about her changing her religion. She was given a temporary passport for just two years instead of ten.

    i.The applicant is practicing Islam in Australia. Her husband teaches her and she has an online teacher who also teaches her. Every Friday some of her Muslim friends help her learn more about Islam.  She studies and reads translations of the Koran.

    j.She prefers Islam to the Sikh religion. There are a lot of things in Islam that appeal to her. Her ex-husband was chosen for her by her family.  She was crying [when] she met her current husband, [Mr B].  She had been telling her family what her ex-husband was doing and they just argued with her. [Mr B], who has a totally different religion, listened to her and wanted to help her. He showed her that the Prophet Mohammed loved his wife Aisha and took care of her.  In Islam woman are given a special status and are not treated like dirt or just for domestic duties or sex.  She was impressed by Islam because it is the only religion that shows you how to live in this life.

    k.Her relationship with [Mr B] started in around 2013. They started to live together in 2014.

    l.She reported her ex-husband’s violence to the Australian police at [Suburb 1]. Twice she rang them but they did not come. On the third occasion she rang they did come and they gave her a card. She thinks they would have entered her details into the police system.

    m.During her divorce proceedings in Australia she gave her lawyer the police card and told the lawyer about the incidents with her husband. Her lawyer included the details in her court statement.

    n.Her family, ex-husband and other relatives would want to harm her if she returns to India.  She is also afraid of the Sikh community, and even Hindu people.  In India, family aand parents are very strong. Sikhs have animosity towards Muslims because in the past Muslims were believed to have killed a lot of Sikh children.

    o.Her husband, [Mr B], will not be able to go to India with her because he is a Muslim and from Afghanistan.

    p.She will not be safe anywhere in India.  The rape and murder of women is quite common in India.

    Post-Hearing Submission

1. On 20 July 208 the applicant submitted the following documents to the Tribunal:

   a.‘Ante-Natal History’ notes from [a] [Hospital]. The notes record that the applicant’s previous partner returned to India and took another wife; that the applicant met a new partner and converted to Islam; and that she does not speak with her family anymore.

   b.[Another] hospital records for the applicant noting that she was unable to provide a copy of her previous medical record regarding her caesarean in India.

   c.A card from ‘[Suburb 1] Local Area Command’, [Police] Force, with the name ‘Cst. [name]’ handwritten on the card.

   Country information

   Women, Marriage and Religion in India

2. DFAT’s ‘Country Information Report for India’, published on 15 July 2015, states the following:

   3.25 DFAT assesses that there is a low level of official discrimination against Muslims in India, particularly in relation to police and security forces’ interaction with the Muslim community. …There is a moderate level of societal discrimination against Muslims across India, which can be partly attributed to the community’s relatively low socio-economic status …

   3.33 India is officially a secular and multi-ethnic country, and as such inter-faith and inter-caste marriages are legal. … Couples may seek to marry under one of India’s personal religious laws which have been codified according to the requirements of different religions in India. The Special Marriage Act 1954 is an alternative to each of the various religious personal laws. The Act is available to all citizens who choose to marry outside their faith and the religion of the parties to an intended marriage is immaterial under the Act.

   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.

   3.35 There is also significant social pressure for individuals to marry within their own caste and/or religion. … Since the election of the Modi government in May 2014, Hindu right-wing groups that claim proximity to the BJP have stepped up social pressure and violence against inter-faith marriages involving Hindus. In rural India, village councils have played a role in upholding conservative community views about marriage and relationships. In January 2014, the Supreme Court intervened after a woman in West Bengal was allegedly gang-raped on the orders of a village council as punishment for having a relationship with a man from a different caste. So-called “honour killings”, committed by the families and communities of those involved in inter-faith and inter-caste relationships, are particularly prevalent in villages and small towns in north India. It is estimated that at least 1,000 honour killings take place each year in India.

   …

   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. …

   3.56 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.

   …

   5.5 According to a 2009 report by Human Rights Watch and other sources, the capacity of India’s police forces is limited by poor infrastructure, insufficient personnel, inadequate training, poor living conditions for low-ranking officers, insufficient remuneration and a lack of training and equipment to conduct their duties. India also has relatively few police officers per capita – 129 per 100,000 people, compared to a global average of 350. Only around five per cent of Indian police officers are female, while only six per cent of Indian police officers are Muslim (despite Muslims comprising 13.4 per cent of the population).

   5.6 Allegations of human rights abuses carried out by police in India are frequent. Section 197 of the Criminal Procedure Code 1973 provides immunity to public servants against prosecution without prior sanction from the Central Government (or relevant state government) for offences alleged to have been committed while in the discharge of official duty. Only 28 per cent of the 282,384 complaints made against police between 2003 and 2007 resulted in police or judicial inquiries. During the same period, 8,736 prosecutions were initiated against officers, 1,070 trials were completed and 264 officers were convicted.

   …

   5.17 In practice, options for internal relocation can be limited by a range of factors. These include language barriers; a lack of documentation; lack of familial or community networks; lack of financial resources and employment opportunities; and discrimination based on ethnicity, religion, caste or gender. …

   5.19 Without proof of identity and local residence, internal migrants can be excluded from public services and social security programs. As a result, they often face barriers in accessing subsidised food, housing and banking services until they can establish identity and local residence. Ethnic, religious or caste identity may provide a basis of anti-migrant sentiment and a limiting factor for internal relocation. Single women, women with children or victims of familial crime may find relocating within India difficult due to the need to provide details of their husband’s or father’s name in order to access government services and accommodation.

   5.20 Despite these difficulties, millions of Indians successfully relocate within India either temporarily or permanently every year, and it is possible to obtain work in the large informal sector without papers. In general, DFAT assesses that there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence.

3. DFAT’s ‘Thematic Report – Indian State Of Punjab’, published on 7 December 2016, states:

   In practice, religious diversity is broadly accepted in Punjab. Interfaith marriage does occur, particularly between Sikhs and Hindus, and typically happens without major protest from either group. However, these marriages can cause familial tension resulting in the loss of property inheritance rights. Inter-faith marriages involving Muslims are less common. Punjab has a relatively small Muslim population, which experiences considerable social and economic disadvantage, much like Muslim communities across India (this is exacerbated in Punjab by its proximity to Pakistan and the state of Jammu and Kashmir). Hostility against Muslims across India links back to the traumatic process of India’s division in 1947.

   In India [an honour killing] typically occurs when a person has a relationship with someone of whom their family does not approve, either because of their caste, religion, socio-economic status or some other reason. For example, in July 2015 a Sikh woman was reportedly murdered by several members of her family in Punjab’s Gurdaspur district after marrying a Christian man…. In May 2016 a man reportedly killed his 19-year-old daughter in Bathinda district because she was believed to be having a relationship with a man from a backward caste.

   …

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

   … Sexual harassment is highly prevalent in Punjab (as in other states). Several credible diplomatic and human rights sources told DFAT that women in Punjab are highly likely to regularly face some form of sexual harassment in public, including inappropriate staring, touching, verbal harassment or worse. In extreme cases, women who have rejected the advances of men may be subjected to serious assault, including possible acid attacks….

   Serious sexual assaults are highly prevalent in Punjab…. While serious sexual assaults are increasingly attracting media attention and condemnation from the community, a great deal of community apathy remains and many people do not recognise the prevalence of attacks.

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

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

   …

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

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

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

4. The recent UK Home Office Policy and Information Note, ‘India: Women fearing gender-based violence’, published in July 2018, contains the following:

   Despite laws aimed at addressing gender-based violence, persistent gaps in enforcing the laws, relevant policies and guidelines, aimed at justice for victims of sexual violence, persist. Some women and girls are reluctant to report, or discouraged from reporting attacks to the police, for fear of reprisals, being stigmatised or unsupported by the justice system. Few police stations have specialised women’s mechanisms to address the concerns of women and some police reportedly encourage dispute resolution at a local level.

   …

   Data from the National Crime Records Bureau (NCRB) recorded the incidence of crime against women between 2014 and 2016. Total crimes committed against women was reported as 339,457 (2014), 329,243 (2015), 338,924 (2016). According to the data, in 2016 the majority of cases under crimes against women were reported under ‘Cruelty by Husband or His Relatives’ (32.6%) followed by ‘Assault on Women with Intent to Outrage her Modesty’ (25.0%), ‘Kidnaping & Abduction of Women’ (19.0%) and ‘Rape’ (11.5%).

   In its 2017/2018 report Amnesty International (AI) stated that the statistics for 2016 included over 110,000 cases of violence by husbands and relatives.

   The report of the UN Special Rapporteur, dated April 2014, noted:

   ‘According to numerous interlocutors, the physical, sexual and psychological abuse of women in the private sphere is widely tolerated by the State and the community. The perpetrators include husbands, in-laws and other family members. Many victims live in family settings that are rooted in deeply entrenched patriarchal and customary practices that are sometimes harmful to women. The widespread socioeconomic dependency of women subordinates them to their husbands and other family members. The fear of social exclusion and marginalization, and the lack of effective responses to violence, keeps them in a context of continuous violence and intimidation.’

   … The UN Special Rapporteur, in her report of 1 April 2014, stated:

   ‘Sexual violence, including rape and sexual harassment, is widespread across the country and perpetrated in public and private spaces ... Many interlocutors stated that there was a general sense of insecurity for women in public spaces, especially in urban settings. Women are easy targets of attacks, including sexual violence, whether while using public transportation or sanitation facilities or on the way to collect wood and water. Many victims of sexual violence carry a deep sense of shame, which is further exacerbated by the stigma and exclusion they experience, especially from family members and the community, and which may result in suicide.’

   The USSD HR Report 2017 noted:

   ‘Official statistics pointed to rape as the country’s fastest growing crime, prompted at least in part by the increasing willingness of victims to report rapes, although observers believed the number of rapes still remained vastly underreported.

   ‘Law enforcement and legal recourse for rape victims were inadequate, overtaxed, and unable to address the problem effectively. Police officers sometimes worked to reconcile rape victims and their attackers, in some cases encouraging female rape victims to marry their attackers. NGO Lawyers Collective noted the length of trials, lack of victim support, and inadequate protection of witnesses and victims remained major concerns. Doctors continued to carry out the invasive “two-finger test” to speculate on sexual history, despite the Supreme Court’s holding that the test violated a victim’s right to privacy. In 2015 the government introduced new guidelines for health professionals for medical examinations of victims of sexual violence. It included provisions regarding consent of the victim during various stages of examination, which some NGOs claimed was an improvement to recording incidents.’

5. A July 2013 COISS background paper on mixed marriage in India refers to sources that indicate ‘[i]ntermarriage between Hindus, Sikhs and Jains appears to be more generally accepted than intermarriage between members of these religions and Christians, Jews or Muslims’.[1] 

   [1] Mixed Marriage in India, COISS, July 2013,  section 2.4, p.9

6. In 2015, the Immigration and Refugee Board of Canada (IRBC) provided the following overview of violence against women in India:

   Sources report that violence against women in India has increased (Ghosh 2013, 409; UN 26 Aug 2013).  According to Crime in India 2013, a report published by India’s National Crime Records Bureau (NCRB), which is part of the Ministry of Home Affairs (MHA), 309,546 crimes against women were reported in 2013, including 33,707 rapes and 51,881 cases of kidnapping and abduction (India 2013a, 81). There was an increase of 26.7 percent in crimes against women from 2012 (ibid, 79). The same source reports that in 2013, more than 8,000 women were killed in dowry-related crimes, and more than 100,000 were victims of cruelty by their husbands or male relatives (ibid.). A 30 September 2014 article published by Inter Press Service (IPS), citing “the latest records published by the …NCRB, “reports that 92 women are raped every day in India.  Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

   Sources report that under-reporting of violence against women is common (Al 2015, 182; CNN 15 Dec 2013). Similarly, a 19 December 2014 article by the Hindu, an English-language daily newspaper, states that the rate of unreported sexual violence in India is “far higher” than statistics indicate.

   …In a telephone interview with the Research Directorate, an associate professor of political science at Carleton University, whose research interests include South Asian politics and who has co-authored a book on domestic violence in Mumbai, noted that “violence against homeless women in India is rampant” (Associate Professor 27 Apr 2015).  According to the same source, homeless women are “open to all kinds of abuse including sexual and physical abuse” and they face daily violence by “just about anyone” including the police (ibid). According to SAM:BKS, violence against homeless women includes verbal, physical and sexual abuse as well as economic and social “exploitation by police, employers, local goons, and even passers-by” (SAM:BKS Jan 2014).  The report on violence against homeless women in Delhi similarly states that homeless women commonly face “rape, theft, murder, kidnapping, sexual exploitation and gender-based violence” (Chaudhry et al Mar 2014).  Sources indicate that a lack of access to essential services and public facilities is one of the major issues encountered by homeless women (ibid, Satija and Datta 28 Feb 2015, UN 20 Feb 2013).

   According to SAM:BKS, women who are affected by homelessness “have no recourse to legal remedy, aid or redress” (Jan 2014).  The report on violence against homeless women in Delhi similarly reports that “homeless women have no access to government schemes” (Chaudhry et al Mar 2014).[2]

   [2] Canada: Immigration and Refugee Board of Canada, 15 May 2015, IND105130E

1. An earlier 2013 report from the IRBC states:

   Media sources report that, according to India’s census of 2001, there are approximately 36 million women in India who are widowed, divorced or separated from their husbands (IPS 22 Oct 2009; the Times of India 8 Oct 2009; Womens eNews 10 Jan 2010).  The National Forum for Single Women’s Rights indicates that these single women are rejected by society and treated with indifference by the federal government (ibid).  For example, widows are said to face “deep social stigma” (IPS 22 Oct 2009), “social marginalisation” (IANS 6 Oct 2009) and “cruel” treatment by in-laws (The Hindu 7 Oct 2009).  Media sources similarly note that divorced women face social “stigma” (ibid 30 Dec 2009) and “ridicule” (Mail Today 2 Feb 2011).

   According to an activist involved in launching a national forum for single women’s rights in 2009, single women in India are subjected to “unjust social customs” (IANS 6 Oct 2009). Women’s eNews, a non-profit internet based news service reporting on women’s issues likewise explains that women who are unmarried or who were left by their husbands generally “live invisibly, often at the mercy of callous family customs” (10 Jan 2010).

   …

   According to India’s Ministry of Women and Child Development, finding safe housing is one of the “main” problems for women who move to larger cities in search of employment (India n.d.b).  Media and academic sources also report on the difficulties single women face trying to rent apartments in metropolitan areas (Global Post 8 Aug 2010; DNA 4 July 2010; The Straits Times 4 Dec 2010; Patel 2010).  The professor of women’s studies and political science said that while access to housing is “significantly improving” for middle-class and high income single women (including divorced and widowed women), there continue to be significant social and cultural barriers around women’s sexuality.  Women residing alone may be viewed as having suspect reputations and may have to have family members vouch for them in order to gain access to housing….

   …..Muslim women ….. may face additional barriers of discrimination that intersect with gender obstacles (professor 4 May 2011)

   In Delhi, where 60 percent of residents live in slums (PCESCR May 2008), women who are arriving from other areas of India for an education or employment reportedly lack proper housing (The Straits Times 4 Dec 2010).  Access to adequate housing is also an issue in Mumbai, where 50 percent of residents live in slums (PCESCR May 2008).  For example, Global Post, a Boston-based internet news agency, reports that single women in Mumbai have a difficult time finding landlords willing to rent them apartments (8 Aug 2010).  According to a real estate agent featured in the Global Post article, many Mumbai housing societies, which decide who can and cannot rent apartments, expect single women “will use the apartments for sex work” (8 Aug 2010).  Patel similarly notes that some landlords suspect that single women are prostitutes or bar dancers (2010).  Media sources also indicate that such perceptions result in single women who live on their own being subject to scrutiny by neighbours (Global Post Aug 2010; DNA 4 July 2010).  The DNA notes that another obstacle to finding “decent” housing is that many single women cannot afford the high rent for apartments in Mumbai (DNA 22 July 2010).[3]

   [3] Canada: Immigration and Refugee Board of Canada, India 16 May 2013, IND104430E

2. A 2015 report on the Status of Women by the High Level Committee on the Status on women, which is constituted by government of India, states:

   … Muslim women lag behind in almost all key socio-economic indicators of development.  They are economically and educationally marginalised, have low social status, and experience domestic as well as communal violence spurred by identity politics.  They are second lowest on WPR (work participation rate) an lowest on labour force participation rate.  Health services rarely reach them due to lack of existing schemes, and partly due to the limited mobility on account of ghettoization, as a result of riots and communal violence.  They suffer the male-centric legal provisions of triple oral talaq (divorce), polygamy, customs such as Halala and lack of maintenance.

   …Single Women: the incidence of singleness is much higher for women than men, and numerous socio-cultural, psychological and economic factors make them vulnerable and marginalised.  Within single women divorced/separated women are more stigmatised.  Widows are the largest category of single women (86 percent) an face high levels of deprivation, social taboos, limited freedom to remarry, insecure property rights, social restrictions on living arrangements, restricted employment opportunities, emotional and other forms of violence and lack of social support. [4]

   Entry and residence in India

   [4] “Report on the Status of Women in India – Executive Summary”, High Level Committee on the Status on Women, Government of India, 01 July 2015, CISEC96CF13102

3. Information on the Indian government’s Ministry of Home Affairs, Foreigners Division website sets out the details of different visas for entry to India.[5] These include an Entry (‘X’) Visa, which may be granted to the ‘[s]pouse and children of an Indian citizen’.[6] These visas are granted for a period of five years, and application can be made for an extension of the visa. It is stated on the website that:

   [5] ‘Details of Visas granted by India’, Foreigners Division, Ministry of Home Affairs, Government of India, 1 February 2018, CIS7B839411570

   [6] ‘Details of Visas granted by India’, Foreigners Division, Ministry of Home Affairs, Government of India, 1 February 2018, p.26; See also ‘General Policy guidelines relating to Indian Visa’, Foreigners Division, Ministry of Home Affairs, Government of India, 1 February 2018, pp.8-9.

   An Entry (‘X’) Visa may be granted to a foreigner in the following cases:-

   (1)   A Person of Indian Origin, who do not possess an OCI card, and may be granted ‘X-1’ Visa for a period of five years at a time, with multiple entry facility.

   (2)   Spouse and children of an Indian citizen/ Person of Indian Origin/ OCI cardholder (other than those who are registered as OCI cardholder) may be granted ‘X-2’ visa for a period of five years at a time, with multiple entry facility.

   Note

   (i)After completion of 5 years from the date of issue of X-1/ X-2 visa, if further extension is required, the proposal shall be referred by FRRO [Foreigners Regional Registration Officers] / FRO [Foreigners Registration Officers] concerned to the Ministry of Home Affairs for clearance. MHA would grant extension for one year after the expiry of the initial period of five years. Subsequent extensions, if any, up to a total period of another 5 years at a time may be granted by FRROs /FROs concerned. The same procedure will be adopted if further extension is required.

   (ii)“Person of Indian Origin” means - (a) a person who at any time held an Indian passport; or (b) a person who or either of his / her parents or grand parents or great grand parents, was born in, and was permanently resident in India, provided neither was at any time a citizen of Afghanistan, Bangladesh, China, Pakistan or Sri Lanka or any other country that may be specified by the Government of India from time to time.[7]  [emphasis added]

   [7] ‘Details of Visas granted by India’, Foreigners Division, Ministry of Home Affairs, Government of India, 1 February 2018, p.26.

4. Information on the Indian government’s Ministry of Home Affairs, Foreigners Division website indicates that for nationals of thirty countries, including Afghanistan, the duration of a tourist visa ‘will be decided by the concerned Indian Missions/ Posts subject to a maximum of 5 years with the stipulation continuous “stay during each visit shall not exceed 90 days and registration not required”’.[8] There would also ‘be a gap of at least 2 (two) months between two visits to India on a Tourist Visa in respect of nationals of Afghanistan’ and some other countries.

   [8] ‘Details of Visas granted by India’, Foreigners Division, Ministry of Home Affairs, Government of India, 1 February 2018, pp.3-4.

5. An article from February 2017 refers to India having ‘further liberalised its visa policy for Afghan nationals to make it easier for them to visit the country’. According to a Press Trust of India article, the Indian embassy in Kabul had issued a statement indicating that the duration of a tourist visa had ‘been enhanced to one year with continuous stay of 90 days during each visit as against the existing provision of stay of 30 days’, although ‘[t]he provision of a gap of 60 days between two tourism visits, however, remains unchanged, the statement said’.[9]

   [9] ‘India further liberalises visa policy for Afghan nationals’, Press Trust of India, 3 February 2017.

6. According to a recent Press Trust of India article dated 9 July 2018 the Indian government planned to change the existing rules to allow foreign spouses of Indian nationals married abroad to convert their tourist visas to dependent visas. This would not, however, be offered to the nationals of certain countries, including Afghanistan, or to stateless persons.[10]

   [10] ‘Govt. to allow spouses of Indian nationals to convert visa category even if married abroad’, Press Trust of India, 9 July 2018.

7. Another document on the Indian government’s Ministry of Home Affairs, Foreigners Division website provides information on Long Term Visas (LTV) for ‘Pakistan, Bangladesh and Afghanistan nationals coming to India on valid travel documents i.e. valid passport and valid visa and seeking permanent settlement in India with a view to acquire Indian citizenship’.[11] The categories of persons eligible for this visa include ‘Afghanistan nationals married to Indian nationals in India & staying in India’. In relation to the procedure for a grant of the LTV, the document indicates that ‘Pakistan/ Bangladesh/ Afghanistan nationals coming to India on short term visa (on any category of visa applicable to such Pakistan/ Bangladesh/ Afghanistan nationals) and applying for LTV under the above mentioned eligible categories may be granted extension on their short term visas up to a period of six months by the FRRO/ FRO concerned’. Also, ‘Afghanistan nationals under eligible categories already staying in India on Stay Visa/ Residential Permit may also apply for grant of Long Term Visa (LTV)’. LTVs are granted for five years for most categories of persons eligible for the visa, and applications can be made for further extensions of the visa, granted on a two year basis.

   [11] ‘Long Term Visas’, Foreigners Division, Ministry of Home Affairs, Government of India, 1 February 2018, p.1.

8. Information on the Indian government’s Ministry of Home Affairs, Foreigners Division website indicates that ‘Indian citizenship can be acquired by birth, descent, registration and naturalization’.[12] There are provisions in India’s Citizenship Act, 1955 that allow a person to apply for Indian citizenship through registration or naturalisation. Under Section 5(1) (c) of the Citizenship Act, 1955, a person who is not an illegal migrant and ‘is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration’, can apply for citizenship through registration.[13]

   [12] ‘Acquisition of Indian Citizenship (IC)’, Foreigners Division, Ministry of Home Affairs, Government of India, 2 September 2015.

   [13] ‘Citizenship Act, 1955’, No. 57 of 1955, Amended to Act No. 1 of 2015, Government of India, 30 December 1955.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant submitted her Indian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of India. The Tribunal assesses the applicant’s claims against India as her country of nationality and receiving country.

   Credibility

10. The Tribunal found the applicant a largely credible witness. She was forthcoming with detail about significant events in her life.  She was cooperative during the hearing and made observable efforts to recall difficult memories from her past.  She was readily able to provide coherent explanations for gaps or concerns in her account.  She also provided documents which lent direct or at least subsidiary support to aspects of her claims.

11. The applicant’s husband attended the hearing with the applicant and provided both emotional support and corroboration to her claims regarding their relationship.

12. The Tribunal therefore accepts that the applicant is from a Sikh family and community and that she was raised as a Sikh in India. The Tribunal accepts that she suffered physical and emotional abuse from her former husband. The Tribunal accepts that the applicant’s ex-husband has returned to India and re-married there, and that the applicant has divorced him.

13. The Tribunal accepts the applicant has married an Afghan man in Australia who is Muslim and that she has converted from the Sikh religion to Islam.  The Tribunal accepts that the applicant’s family in India have ceased all contact with the applicant because of her marriage and conversion.

    Husband’s right to enter and reside in India

14. According to the available information the applicant’s husband, an Afghan national who is an asylum-seeker in Australia, does not have an automatic right to enter and reside in India as the applicant’s spouse.  While he may be able to obtain permission to enter and stay in India as the spouse of an Indian national, at least temporarily, to do so he would have to satisfy a number of criteria to be eligible for such permission. He has no entitlement to permission to enter and reside in India and he will be dependent upon a non-compellable favourable decision from an Indian immigration or consular official to obtain permission to travel to India.

15. In view of his circumstances the Tribunal considers there is a real chance that the applicant’s husband will not be permitted to enter and reside in India with the applicant if she returns there.

    Fear of Harm in India

16. As a divorced woman from a Sikh family, who has re-married a non-Indian Muslim and who has converted to Islam, the Tribunal considers it likely the applicant will face isolation, discrimination and significant animosity on return to India.  The available country information indicates that the applicant’s actions in Australia would be perceived as bringing shame and dishonour to her ex-husband and to her family, by both them and the broader Sikh community in the Punjab.

17. The applicant’s family in India have ceased contact with the applicant. The Tribunal considers this strong indication of their opposition to the applicant’s actions in Australia and their rejection of her.  She has spoken of threats by her parents that they will kill her if she returns to India.  However she has not presented any evidence of actual violent behaviour or any tendency to violent reactions by members of her own family in India. The Tribunal accepts that they have disowned her and do not want her to return to them. The Tribunal considers it likely that they will not permit the applicant to return to them and will not provide any support to her in India. On the evidence before it the Tribunal is not however satisfied that there is a real chance the applicant’s parents, or other family members, will ty to physically harm or kill the applicant in India.

18. The Tribunal has accepted that the applicant’s husband was violent and abusive to her during their marriage in Australia. He has re-married and re-established his life in India, with no recent contact between him and the applicant. It cannot be predicted with any certainty whether or not he, or members of his family, would now resort to physical violence against the applicant.  However in view of his past behaviour and the information regarding the prevalence of ‘honour-killings’ and other violence from husbands and family members, against women who are considered to have caused dishonour, the Tribunal does not discount the possibility of this occurring as remote.

19. If the applicant returns to her home area the Tribunal considers there is a real chance her presence may trigger a violent reaction from her former husband and/or members of his family, because she is perceived to have dishonoured and shamed him and them.  Her vulnerability to such harm is increased by her own family’s likely unwillingness to provide any protection to her, in the form of support and a safe home.

20. The Tribunal therefore is satisfied that there is a real chance that the applicant would be subjected to serious physical violence or killing, from her ex-husband, or members of his family, on return to Punjab.  The Tribunal finds that serious physical violence or killing amount to serious harm.  The Tribunal is satisfied that the harm will be a result of systematic and discriminatory conduct in that it will be done to her selectively and intentionally.

21. The Tribunal finds that the reasons for the harm are the applicant’s status as a divorced woman and because she has converted to Islam.  The Tribunal considers divorced women are a particular social group in India, given they have a shared characteristic and because of the stigma and intense community identification and judgment which attaches to them.  The Tribunal finds that the essential and significant reasons for the serious harm the applicant faces in India are her membership of a particular social group, divorced women in India, and her religion, as a convert to Islam.

    State Protection

22. The available country information, as set out above, indicates that the police in India, and in the Punjab especially, are unlikely to provide protection to the applicant from the family violence she fears.  The information highlights that the police are poorly trained, corrupt, ineffective, and at times responsible themselves for human rights abuses.  The Tribunal considers that the stigma that attaches to the applicant, as a divorced former-Sikh who has converted to Islam, would also prompt local police to disregard her fears and provide no protection to her.

23. In view of the available information and the applicant’s personal circumstances the Tribunal finds that the applicant would not have access to effective state protection in Punjab.

    Relocation

24. The Tribunal has found that there is a real chance the applicant will face serious harm if she returns to Punjab. 

25. The Tribunal considers that if the applicant lives somewhere else in India, outside of the Punjab, then she will have removed herself from the environment in which she may be the victim of family-related violence.  The Tribunal considers that her husband and his family would not feel the threat to their honour that the applicant’s presence in their proximity causes.  The Tribunal also considers that the chance of any of them attempting to locate and harm the applicant outside of Punjab is remote.

26. The Tribunal therefore needs to determine whether there is an area in India, outside of Punjab, in which the applicant could live safely and relocate as a matter of reasonable practicality.

27. The Tribunal has found that there is a real chance the applicant’s husband will not be able to  travel to India and reside there with the applicant.  She would therefore be returning to and residing in India as a woman alone, with a young child.

28. According to current information about the situation for women in India, lone adult women are particularly stigmatised, discriminated against, and at risk of violence in India. The information also shows that single women can have difficulty accessing government services and accommodation. Without the support of her family the applicant would find it difficult to obtain employment and housing in India. There is a real chance she would have no or very little access to income and basis resources.  She would therefore be further vulnerable to violence throughout India as a woman at risk of being homeless.

1. Furthermore, the country information indicates that there is a moderate level of societal discrimination against Muslims and that the Muslim community “experiences considerable social and economic disadvantage” across India.  The Tribunal finds the applicant will likely encounter heightened discrimination as a lone woman, in obtaining employment and secure accommodation for herself and her child, because she is Muslim and a convert from the Sikh religion. She will also be additionally vulnerable to gender based harassment, abuse and violence.

2. Given the level of discrimination she will face and the threat to her physical safety, the Tribunal finds it is not reasonable for the applicant to relocate to an area outside of Punjab in India.

   Third Country Rights

3. Subsection 36(3) of the Act has the effect that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) exclusion will not apply.

4. The conditions prescribed in s.36(4), (5) or (5A) will be met where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.

5. The Full Federal Court in MIMAC v SZRHU [2013] FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise any particular correlative duty upon the state in question. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

6. The country information indicates that the administrative arrangements relating to the entry of Indian nationals into Nepal allow them to enter Nepal without seeking a visa or other permission and that these arrangements pertain under the provision of the treaty.  Article 7 of the Indo-Nepal Treaty of Peace and Friendship of 1950 (the Treaty) provides that Indian nationals such as the applicant can enter and reside in Nepal, on the basis that:

   [t]he two governments agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.

7. The applicant is a national of India.  Accordingly, having regard to the terms of the treaty and the administrative arrangements for entry, the applicant may have the right to enter and reside in Nepal for the purposes of s.36(3). However the Tribunal finds it unnecessary to determine this matter definitively because it is clear from the available information, as set out below, that there is a real chance the applicant would face serious harm in Nepal, so that s.36(3) would not apply to her.

8. With respect to the situation of women in Nepal, in April 2016 DFAT reported that:

   The World Economic Forum’s Global Gender Gap Report for 2014, an index that measures gender-based gaps in accessing resources and opportunities across 142 countries, ranked Nepal at 112. 

   Patriarchal attitudes and deep-rooted stereotypes, as well as traditional practices such as child marriage (although prohibited), the dowry system, son preference, witchcraft accusations and sensitivities about menstruation (at its most extreme form seen through chaupadi, a traditional practice now outlawed whereby women who are menstruating are sent from the house and given minimal shelter and access to food and water during menstruation), continue to exist in Nepal.

   Nepali women rarely receive the same educational and employment opportunities as men.  Although there has been an increase in the proportion of economically active women, their earned income is about one-third that of men.  Less than six per cent of women are employed in the formal sector (compared to 21 per cent of men) ….

   Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and trafficking.  The Government is yet to investigate credible allegations of sexual violence allegedly committed during the 1996-2006 conflict but has acknowledged that women suffered rape during these years.

   Nepal’s laws contain a narrow definition of rape and have a 35 day limitation period for filing complaints.  Penalties for marital rape are low.  Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement through informal justice mechanisms.

   DFAT assesses as credible reports outlining women’s fear of, and related actual experiences of, sexual harassment and violence on the street (including rape and other forms of physical attack such as murder and mugging) and in the home.  DFAT assesses that social stigma, cultural taboos about sexual violence and the fear of retaliation by the perpetrators prevent women from reporting criminal activity.  Women’s fear of potential violence or attack can restrict their freedom of movement.[14]

   [14] DFAT Country Information Report: Nepal, 21 April 2016

9. The same report by DFAT also notes that social stigma against divorced women, who can be seen to have contravened family honour is high.  Social services such as refuges are inadequate and can be difficult to access.

10. In 2016 Amnesty International reported that discrimination, including on the basis of gender, caste, class, ethnic origin and religion persisted.  Women from marginalised groups, including impoverished women, continued to face particular hardship because of discrimination, while laws criminalising rape continued to be inadequate and to reflect discriminatory attitudes towards women.[15]

    [15] Amnesty International, Amnesty International Report 2015/6 – Nepal, 24 February 2016

11. In a January 2010 report the Internal Displacement Monitoring Centre reported that displaced women have struggled to find proper accommodation or access basic services in cities noting that displaced women suffer from significant discrimination making them highly vulnerable to further impoverishment and forcing many to resort to prostitution. The report concludes that in a society where women and girls already suffer from discrimination, displaced women are even further disadvantaged, at risk of further impoverishment and exposed to significant protection and health risks.[16]

    [16] Internal Displacement Monitoring Centre 2010, Failed implementation of IDP policy leaves many unassisted/, 28 January 2010.

12. The applicant lacks family and other networks of support in Nepal. The Tribunal finds there is a real chance she would be unable to secure employment and accommodation for herself and her child and that in these circumstances there is a real chance that she would, as a Muslim, lone woman and mother without family support, find herself unemployed and homeless and be exposed to a significant risk of sexual violence and gender-based discrimination which would in the circumstances amount to serious harm.

13. The Tribunal therefore finds that s.36(3) would not apply, and does not apply, to exclude the applicant from Australia’s protection obligations.

    CONCLUDING PARAGRAPHS

14. For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for Convention reasons in India.

15. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The applicant therefore satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Melissa McAdam
    Member