1604609 (Refugee)

[2019] AATA 1472

1604609 (Refugee) [2019] AATA 1472 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604609

COUNTRY OF REFERENCE:                  India

MEMBER:Roslyn Smidt

DATE:8 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 08 April 2019 at 9:16am

CATCHWORDS

REFUGEE – protection visa – India – forced to marry – fear of psychological harm – fear of serious harm – pressure to marry – lose of liberty – member of a particular social group – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 438(1)(A), 499

Migration Regulations 1994 (Cth) 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

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 is a citizen of India, applied for the visa on 3 December 2014 and the delegate refused to grant the visa on 16 March 2016.

3. The applicant appeared before the Tribunal on 13 March 2019 to give evidence and present arguments.

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

   THE RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

   S438(1)(A) ISSUES

10. A document entitled Certificate and notification regarding the disclosure of certain information under s438 of the Migration Act 1958 is attached to the applicant’s file. It states that it would be contrary to public interest to disclose information held at folios 60 and 62 because they relate to internal working documents and business affairs.  Both documents are checklists intended to ensure that are range of administrative tasks have been completed.  In my view the Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.  Furthermore none of the information contained on these folios has any relevance to issues before me.

    BACKGROUND

11. The applicant is a [single] woman from Gujarat in western India. Her parents have lived in [Country 1] where her mother’s family [resides]. She has [brothers], [who] remain in India.   She completed [Bachelor Degrees] before leaving India and has completed [other qualifications in Australia].  From January 1999 until December 2002 she worked as [occupation] in India.  In Australia she has worked as a [occupations].

12. The applicant first arrived in Australia on a student visa [in] June 2006. At the time she was about [age] years old.  She returned to India for about 3 weeks in mid-2009 and for about about a month in early 2012

    THE APPLICANT’S CLAIMS AND EVIDENCE

13. In her protection visa application lodged on 3 December 2014 the applicant said that she left India in 2006 to further her studies and for relief from the pressure to marry. She said that arranged marriages were common in India and she feared that her family would force her to marry if she returned to India. Her representative submitted that being forced to marry constituted serious harm as the applicant would lose her liberty and suffer psychological harm and that the harm was for reasons of her status as an Indian woman, which he appeared to suggest constituted a membership of a particular social group.

14. The applicant repeated these claims when she gave oral evidence during an interview with the delegate on 6 January 2016.  She added that her family had not wanted her to come to Australia and had continued to pressure her to marry when she last returned to India in 2012.  She said that this pressure came mainly from her parents who now reside in [Country 1], but her friends and brothers had also pressured her to marry. She said that her parents were permanently based in [Country 1] and she spoke to them by phone about once a month.

15. The delegate accepted that the applicant had a strained relationship with her parents but did not accept that she faced a real chance of experiencing serious or significant harm as a result of family pressure that she should marry.  In reaching this conclusion she noted that the applicant’s parents lived in [Country 1] and she only spoke to them about once a month which suggested that if she returned to India she would experience nothing more than occasional verbal pressure to marry. 

16. The delegate was unable to locate information which dealt specifically with the situation of women who did not want to marry, but noted information in articles from the Washington Post and the New York Times on growing empowerment of women, in particular educated women who were gaining the confidence and financial security to act differently from previous generations and leave unsatisfactory marriages.  She observed that the applicant had lived apart from her family for many years and had the resources to relocate elsewhere in India to avoid being pressured to marry.  She also noted that there were laws and a number of organisations which provided support to women at risk of domestic violence.  

17. The applicant provided a copy of the delegate’s decision to the Tribunal.

18. In a submission provided on 12 March 2019 the applicant’s representative again claimed that the applicant’s family would force her into an arranged marriage if she returned to India. She submitted that this would amount to serious harm for reasons of her membership of the particular social group of Hindu women of marriageable age.  In support of this claim she provided a copy of DFAT’s report and also referred to articles in the Hindustan Times and Gendermatters.  She also provided copies of the applicant’s original application and the delegate’s decision.

19. The applicant attended a hearing of the Tribunal on 13 March 2019. I asked why she feared returning to India.  She said that she would lose her independence and her liberty as she would be forced to live with her brother and he would pressure her to marry.  I asked if anyone in her family had abused her in any way in order to pressure her to get married.  She said that nobody had abused her, but they were always pressuring her to get married.

20. I advised the applicant that I was aware that arranged marriages were common in India, but it was not my understanding that an educated middle class woman with her background was likely to be forced to marry against her will. She said this was not correct and her family would pressure her to marry if she returned to India.

21. I advised the applicant that it was not my understanding that educated middle class women were forced to live with family members in India and it was my understanding that she would be able to live independently of her family if she chose to do so. She said that this was not correct and maintained that she would have no choice but to live with her brother.

22. I asked the applicant if she feared harm from anyone apart from her family if she returned to India. She said that she did not.

23. The applicant’s representative said that the applicant would suffer significant long term pressure from her family unless she agreed to marry.

    COUNTRY INFORMATION

24. According to DFAT, women typically face social pressure to marry by their mid-20s and arranged marriages continue to account for the overwhelming majority of marriages across India.  Many parents consider arranging a marriage for their children a right and a duty, and may not accept their son or daughter choosing their own spouse.  However, they also note that sources had advised that acceptance of marriages outside of castes or religion, or even of marriage partners not chosen by the family, depended heavily on the individual family.

25. While there is no suggestion that the applicant has been or would be a victim of violence from her family, DFAT advice on the circumstances of women who face this problem provides some insight into the situation of women in general.  They note that the situation for women varies according to factors such as their location, age, education, class and caste background. In general, urban women from higher class backgrounds have better access to legal protections and education and the standard of literacy has a significant impact on access to services.  DFAT assesses that women generally face a low risk of official discrimination. DFAT, assesses that women, particularly in rural areas and from lower castes, face a moderate risk of societal discrimination and violence.

26. I have also noted the articles referred to in the representative’s submission. Both articles refer cases in a report by the UK Home Office on cases of forced marriages involving UK citizens or residents.  According to the report India, with 89 cases in 2017, was one of the top four countries named in the report.  As it deals only with cases involving UK residents of Indian origin the report is of limited value.

    CONSIDERATION OF THE APPLICANT’S CLAIMS

27. It is clear that arranged marriages are common in India and that in some cases women are coerced or face extreme pressure to marry someone chosen by their family.  However, as pointed out in the DFAT advice, the situation for women varies depending on a range of factors including education, socio-economic and caste status and their family. 

28. The applicant is a highly-educated woman aged [age] years old who has lived independently in Australia for some [years].   While she may have faced some pressure to marry prior to her first arrival in Australia at the age of [age] and during her visits in 2009 and 2012, there is no suggestion that this involved physical abuse or serious or significant harm of any kind.  Her decision to return to India in 2009 and 2012 suggests that she was not fearful of serious harm from her family members remaining in India or anyone else at that time because she wished to remain single.

29. In these circumstances, while I accept that the applicant may continue to face some pressure from family members to marry, I am not satisfied that there is a real chance she would be forced to marry against her will or that she would face physical harm or serious or significant harm of any kind from members of her family or anyone else for choosing to remain single. 

30. In addition, while I accept that it may be more common and socially acceptable for single women to reside with members of their family members in India and cultural norms may mean that single women who live alone face some low level discrimination, I am unaware of any evidence which suggests that educated women who are able to support themselves are unable to live independently in India or that single women who chose to live independent of their families face a real chance of suffering serious or significant harm from family members or anyone else in India.

31. In the applicant’s case, while it may be that members of her family were not happy with her decision to come to Australia alone, she has returned to India twice and there is no suggestion that she was rejected or abused by family members during those visits because she had chosen to live independently in a foreign country.  Nor is there any evidence which suggests that any member of her family attempted to prevent her from returning to Australia.  In these circumstances I do not accept that the applicant would be unable to live independently of her family in India if she wished to do so and I am not satisfied that there is a real chance she would face serious or significant harm from members of her family or anyone else because of a desire or decision to live independently.

    IS THE A REFUGEE

32. After considering the applicant’s claims singly and cumulatively, I am not satisfied that she faces a real chance of suffering serious harm amounting to persecution for any of the reasons in the Refugees Convention now or in the reasonably foreseeable future. Therefore I am not satisfied that she has a well-founded fear of persecution.

    DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERIA?

33. After considering the applicant’s claims singly and cumulatively, I am not satisfied that she faces a real risk of suffering significant harm on return to India. Therefore, I am not satisfied 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.

    CONCLUSIONS

34. 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).

35. 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).

36. 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 criterion in s.36(2).

    DECISION

37. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Roslyn Smidt
    Member