1612637 (Refugee)

1612637 (Refugee) [2020] AATA 1531 (3 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612637
COUNTRY OF REFERENCE:                   India
MEMBER:Kate Millar
DATE:3 February 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

STATEMENT MADE ON 03 FEBRUARY 2020 AT 11:48AM
CATCHWORDS
REFUGEE – protection visa – India – religion – political opinion – Dera Sacha Sauda (DSS) follower – fear harm from Hindu hardliners or husband’s family – particular social group – divorced single women – risk of sexual assault – not victim of domestic violence – family support available – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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

[The applicant] came to Australia from India in 2008 as a dependent on her ex-husband’s student visa. In October 2011 a further visa application for a [temporary] visa was refused. The decision to refuse [the applicant] a [temporary] visa was affirmed by the Migration Review Tribunal [in] July 2013 and by the Federal Circuit Court [in] February 2014. A further appeal to the Federal Court was dismissed. [The applicant] and her then husband sought the intervention of the Minister, which was also unsuccessful.
They were each granted a bridging visa pending leaving Australia. In the period before they left Australia [the applicant] said they separated, and she applied for a Class XA (Subclass 866) protection visa on 10 May 2016.
In her application [the applicant] she feared harm if she returned to India because she was a follower of Dera Sacha Sauda (DSS), and her husband and his family had tried to get her to abandon the DSS. She said she is separated from her husband and his family and Hindu hardliners had threatened to harm her.
Her application was refused by a delegate of the Minister of Immigration on 20 July 2016 as the delegate was not satisfied [the applicant] was a refugee, or there are substantial grounds for believing there is a real risk she would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.
[The applicant] has applied to this Tribunal for a review of the decision under s.65 of the Migration Act 1958 (the Act) to refuse to grant her a protection visa.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994.
[The applicant] must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c) to be granted the visa. This requires that she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, the person is outside the country of their nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a).
Under s.5J(1), a person has a well-founded fear of persecution if:
·     The person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,
·     There is a real chance they would be persecuted for one or more of those reasons, and
·     The real chance of persecution relates to all areas of the relevant country.
There are circumstances in which a person will not have a well-founded fear of persecution, which include where effective protection measures are available to the person in the receiving country; and, in certain circumstances, where the person can take reasonable steps to modify his or her behaviour to avoid a real chance of persecution (ss.5J(2)–(6)).
Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of 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’).
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.
In this case, a DFAT Country Information Report – India dated 17 October 2018 was before the Tribunal, and relevant sections of this report were put to [the applicant] for comment.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity and nationality
[The applicant] claims to be a national of India. She provided a copy of her passport, and said she was born in India. On this basis the Tribunal finds she is a national of India which is also her receiving country, and has assessed her claims in relation to India.
Claims
In [the applicant]’s protection application she claims that she will be harmed if she returns to India because:
I was married to a [Mr A]. I am follower of Dera saccha sauda. [Mr A] and his family over years were trying me to abandon Dera. We finally got separated. [Mr A]’s family and hindu hardliners have threatened me that they will harm me.
In her claim form, [the applicant] states she does not think the authorities will protect her because ‘Many people in government are against Dera’ and that she does not think she could relocate within India because ‘It’s easy for people to find me out and kill me.’
[The applicant] said she was born in [Town 1 in] Haryana in India. At birth, her religion was Hindu. She has a brother [Mr B] who lives in [Town 1] with his wife and [family]. Her father died in [year] and her mother lives with her brother. Her sister [Ms C] lives in [another village] with her husband and [children].
[The applicant] was educated in India. She completed year [level] at [a named] School, attending school until she was [age] years old. [The applicant] lived in [her home town] until she married in 2000, and then lived in [Village 1] in [Region 1] with her husband and parents-in-law until 2008. [The applicant]’s marriage was an arranged marriage conducted in [Village 1] in a Hindu ceremony.
[The applicant] came to Australia in April 2008 on a student visa with her husband, who studied and completed [a course].
[The applicant] said she is separated from her husband. They have two children, [Child D] who is [age] years old and [Child E] who is [age] years old. Their children live in [Region 1] with her husband’s parents.
After the hearing [the applicant] provided a divorce order from the Federal Circuit Court dated [in] August 2019, stating a divorce order is made with effect from [a date in] September 2019.
Since coming to Australia in 2008, [the applicant] has returned to India three times, in 2010 for approximately six weeks, in 2012 for six to seven weeks and again in 2014 for three weeks.
At the hearing [the applicant] claimed:
·In the times she returned to India she could not stay with her parents-in-law and had to stay with her friend. Her husband would bring the children to visit her.
·In 2014 when she was in India she called her husband to arrange to meet the children. Her husband called her cousin to arrange the meeting. She went to meet her children in [Region 1] and was told to wait at [a location]. Her children did not come but two people came on a motorcycle and pushed her over then drove off. She thought they were trying to kill her. People gathered around to help her and her assailants ran off.
·She has not mentioned this before because her husband told her they were going back to Australia so she did not need to worry about it.
·She fears strict Hindu followers because she follows DSS, and fears that if she returns to India she will be killed or tortured.
·That when she was pushed by the people on the motorbike she fell on the ground and they started hitting her. She did not recognise the people who attacked her. They took the motorbike when they ran off.
·People tried to stop her assailants but were unable to do so.
·She did not report this incident to the police because she was injured, and instead went to get treatment for her injuries. Her friend advised her not to report it to police because the police do not support the DSS.
·She was injured on her [specified body parts]. She went to [Hospital 1] and got a band aid and some cream for her injuries. She went by rickshaw with her friend and it took about 20 minutes to get there.
·She did not have records of treatment from the hospital, but could get a record.
·She did not make these claims before the hearing because she felt okay in Australia before and it is safe here.
·She became a DSS follower when she was [age] or [age] years old, and people would know she is a DSS follower if she returned to India because ‘People just know that because people who are Dera go to the Ashram.’
·She had been to the ashram five times before she was married but then did not go to the ashram again after marriage. She only attended to the ashram five times in five years because she was going to school and could only go in the school holidays.
·She did not attend more frequently because there is no reason to call people to the ashram, as they teach people meditation and ask them to meditate at home.
·Her mother is a DSS follower, she does not recall when her mother started being a follower because she was very little. Her father and siblings were not followers of the DSS.
·Because she is a follower, her mother meditates two-and-a-half hours a day and talks about a ‘spiritual way’. [The applicant] meditates two-and-a-half hours a day because she is a follower of DSS.
·On being asked to explain about the “spiritual way” the applicant said the ashram tells people to remember God every day for two-and-a-half hours, to help others always, and encourages people to do good things, for example not to give a dowry. She said they do not encourage showing off with their prayer.
·On being asked about the statement in her application that her religion is “DSS Hindu” she said she does not believe in any religion because the DSS do not have any particular religion. On being asked why she had taken an oath on the Gita to give evidence, she said she was born Hindu but for her any religion is the same.
·She has not undertaken any DSS activities in Australia and does not attend the Hindu temple.
At the hearing, [the applicant] provided an article from The Guardian dated 4 March 2019 ‘Four decades after my gang rape in India, the face of change smiles back at me’, an article from Wikipedia printed 16 August 2019 ‘Violence against women in India’ and an article from The Independent dated 25 August 2017 ‘Gurmeet Ram Rahim Singh: 29 killed as protests erupt in India after spiritual leader convicted of raping two women’.
After the hearing she provided a screen print of the contact details for the DSS in Haryana and an article from The Hindustan Times dated 23 August 2019 ‘Punjab on alert after Dera man accused of sacrilege killed in Patiala jail’.
[The applicant] also provided a letter dated 24 August 2019 which states it is from [a named doctor] of [Hospital 1]. This states [the applicant] attended the hospital [in] April 2014 and was examined and found to have bruises, swelling and internal injury on her [body parts] and was noted to have an injury to [another body part]. It states she was given non-steroidal anti-inflammatory medication and a dressing for her [injury] and ointment. It states she was given three different types of tablets and an injection.
Assessment of claims
The Tribunal has considered the claims that [the applicant] will be persecuted because of her political beliefs and her membership of a particular social group of divorced single women.
Does [the applicant] fear serious harm because she is a follower of the DSS?
[The applicant] claims to be a follower of DSS and to fear harm from Hindu hardliners or from her husband’s family.
The DSS is described by DFAT as a non-profit social welfare and spiritual group founded in 1948 and headquartered in Haryana. Its key principles are secularism, equality, anti-materiality, truth and faith, meditation, strict individual and social discipline and hard work. It has undertaken a number of environmental and cleanliness campaigns in India.[1]
[1] ‘DFAT Country Information Report – India’ 15 July 2015
In January 2019, the spiritual leader of the DSS, Ram Rahim Singh was sentenced to life imprisonment for the murder of a journalist who published a letter about his alleged sexual exploitation of women. This followed his sentencing in August 2017 after being convicted of rape. Following protests that occurred after his conviction in August 2017, there are reports including that in The Independent article provided by [the applicant], that 38 people were killed and 200 injured.[2]
[2] ‘Indian court jails self-styled “godman” for 20 years, security tight’, Reuters, 28 August 2017, CXC90406612960
[The applicant] said she feared harm as a DSS supporter because 29 people were killed and 100 people injured. However these injuries and deaths occurred in protests in 2017 after Ram Rahim Singh was sentenced. The article provided by [the applicant] states his supporters “rampaged in response [to the sentencing], setting a train on fire and attacking government buildings and journalists in town across the northern states of Punjab and Haryana”. It states after the clashes erupted more than 15,000 troops and police officers were deployed and a curfew imposed with police using tear gas and water cannons to control the crowds. It is also stated that it had been reported that the violence had left more than 200 injured after it was said police had fired live rounds into the crowd.
It was put to [the applicant] that the deaths and injuries were a result of the actions of DSS supporters rather than DSS supporters being targeted. [The applicant] did not have any comment in response.
[The applicant] provided a report from The Hindustan Times that a DSS supporter was killed while in prison. It is also reported in this article that the person killed was in prison for sacrilege, and that a special investigation team claims he had stolen a copy of a Sikh holy book, strewn pages on the streets and thrown it into a drain. Following the murder, the police are reported to have a brought a first information report against the two inmates involved, and the jail minister is reported to have stated this was negligence on the part of jail administration. The jail superintendent, an assistant superintendent and two warders are reported to have been suspended for the lapse in security. The Tribunal does not consider this shows that [the applicant] has either a subjective or objective fear of persecution on the basis of being a DSS supporter as there are no reports of DSS supporters who are involved in such activities being targeted. The report states that the police have taken action against those accused of the attack, and that the prison supervisors face disciplinary action.
Otherwise, reports of Hindu hardliners targeting others involve reports of Muslims being attacked, including in the article provided by [the applicant]. There were no reports provided to the Tribunal, or that the Tribunal could locate of people who are DSS supporters being attacked or targeted by people who are Hindu.[3] The article provided by [the applicant] refers to tensions between a DSS supporter accused of sacrilege and the Sikh community.
[3] >
[The applicant] said she feared she would be harmed by Hindu hardliners if she returned to India. She said this was because when she returned to India in 2014 “a similar thing happened” when she says she was pushed over by two people on a motorbike who were trying to kill her. She said she had not mentioned this incident before the hearing because her husband said she was returning to Australia and so she did not need to worry about it. She also said she did not feel any fear living in Australia and this is why she didn’t tell anyone about this incident.
[The applicant] said she did not recognise the people who pushed her. She said when she had fallen on the ground they started hitting her. She said that when people gathered her assailants ran off. She then also said they took the motorbike. She did not report this to the police as her friend told her not to because the police do not support DSS supporters.
She thought the people who pushed her were anti-DSS and strict Hindu followers. She said she thought this was the case because she does not have anyone to fear other than this group. This is mere speculation.
It was put to [the applicant] that this incident occurred after her [temporary] visa was refused and the decision had been affirmed by the Tribunal and the Federal Circuit Court. As a result when she returned to Australia after this occurred she did not hold a substantive visa. She was asked why she did not mention this incident on her return to Australia or claim protection at this point. In response [the applicant] said she did not feel any fear living in Australia so she did not raise this incident.
This incident is not mentioned in her claim form, and in response to the question “did you experience harm in that country(s)?” she responded “no.”
After the hearing, [the applicant] provided a letter on the letterhead of [Hospital 1] dated 24 August 2019 which reports she attended the hospital in 2014. It describes injuries broadly consistent with [the applicant]’s account of her injuries. It does not state a cause of these injuries.
On being asked how others would know she was a follower of DSS, she states others would know she was a follower of DSS because “they just know that” or because of her attending the ashram. While I accept that in a small community others in the community are more likely to know a person’s beliefs, [the applicant] said that the manifestation of her following DSS was meditating for over two hours a day. She has not been to the ashram for approximately 19 years, and before then said she visited the ashram five times in a period of five years. She has not mentioned prior to applying for a protection visa that she had any fear of returning to India. After the hearing, [the applicant] provided a screenshot of the contact details for the DSS in Haryana, and stated that contacting the DSS in Haryana would provide more information that she is a follower.

While the Tribunal accepts [the applicant] may have attended [Hospital 1] it does not accept this was because she had been attacked in the manner she describes, or that this attack was by Hindu hardliners, or that the attack occurred because she is a DSS supporter. The absence of her claiming this occurred on her return to Australia or in her application for the visa, and this claim being raised in her application for review for the first time, results in the Tribunal finding her claim that she was attacked because she is a follower of DSS is a recent invention to bolster her claims.
It follows that the Tribunal does not accept there is a real chance as required by s.5J(1)(b) [the applicant] will be persecuted by Hindu hardliners or others in the community because she follows the DSS. It does not accept that Hindu hardliners would find her anywhere in India as she claims.
[The applicant] said that she commenced being a follower prior to her marriage, when she was [age] or [age] years old, but had only attended the ashram on five occasions in five years. She said she shows she is a follower by meditating for two-and-a-half hours a day.
According to her oral evidence she did not tell her husband or his parents she was a follower of DSS at first because it is “not a big deal”. She said after three or four years she told her husband and asked him to go with her to the ashram. She said her husband was angry and asked why she hadn’t told him earlier.
Information contained in a review of a decision of the Tribunal in relation to her husband was put to [the applicant] under s.424AA of the Act. This information was that in her husband’s case, the Tribunal did not accept that she was a follower of DSS or that her husband would be unaware that she was a DSS follower from 2000 until 2008. It is reported in the decision that her husband gave evidence that he did not know she was a DSS follower for a period of eight years between 2000 and 2008. It was put to [the applicant] that if the Tribunal relied on this information it would find she was not a follower of DSS and did not have a well-founded fear of persecution if she were to return to India because she is a follower of DSS.
In response, she said she was a follower at that time and she had told her husband. She said her husband did not have a problem with that [her being a follower of DSS], but her husband’s family has a problem. This explanation is inconsistent with her application form in which she states her husband [Mr A] was trying to get her to abandon the DSS. She said her parents-in-law also came to know she was a follower of DSS and after that did not behave well with her.
[The applicant] said her practice was to meditate for two-and-a-half hours a day. On being asked if her husband or his family asked why she was meditating one to two hours a day, she said when he asked she said she was praying to God and seeing God from the inside.
On being asked what threats she had received, [the applicant] said her husband’s family and his neighbours kept telling her to leave the DSS or to leave home. She said she considered this a threat because if she did not follow it she may be killed. According to [the applicant]’s evidence she told her husband three to four years after they married, in 2000. Given they left India in 2008, if her account is accepted, no harm befell her before in the three to four years between her parents-in-law and husband being told she was a DSS supporter and when she came to Australia. The Tribunal does not accept that if she was at risk of serious harm from her parents-in-law nothing would have happened in this time. It follows it does not accept that she has a well-founded fear of serious harm from her parents-in-law or their neighbours.
The Tribunal accepts in [the applicant]’s favour that she is a follower of DSS but does not accept there is a real chance that if she returned to India she would be persecuted because she is a follower of the DSS as required by s.5J(1)(b) and s.5J(4)(b) of the Act.
Does [the applicant] fear serious harm as a single divorced woman?
The Tribunal has considered whether [the applicant] has a well-founded fear of persecution based on being a member of a particular social group of divorced women.
Around one in 1,000 marriages in India ends in divorce, although rates are reported to be increasing.[4] In India, the default regime after divorce is separation of property, and the right to maintenance is weakly enforced. A survey of 405 separated/deserted and divorced women, covering mostly urban areas across the country, found the majority to be dependent on their natal families, particularly parents and brothers, in terms of financial support and living arrangements after separation. If they had some income, it was not sufficient for them to live on their own or independently with their children. The rate of re-marriage was low.[5] Relocation within India for single women, women with children or victims of domestic violence can be difficult because of the need to provide details of their husband’s or father’s name in order to access government services and accommodation.[6] A government-run Swadhar Greh Scheme aims to cater for the primary needs of women in difficult circumstances, including women who are deserted and without any social and economic support.[7]
[4] ‘DFAT Country Information Report: India’, 17 October 2018, p.18 See also: ‘Divorce and Separation in India’, Dommaraju, P, Population and Development Review, vol. 42, issue 2, June 2016, p.216; ‘Executive Summary – Report on the Status of Women in India’, High Level Committee on the Status of Women, July 2015, pp.37-38
[5] ‘Progress of the World’s Women 2019-2020: Families in a Changing World’, UN Women, 25 June 2019, p.127
[6] ‘DFAT Country Information Report – India’, Department of Foreign Affairs and Trade, 17 October 2018, p.27
[7] UK Home Office, Country Policy and Information Note: Women fearing gender-based violence, July 2018, at 7.2.2
The most recent DFAT Country Information Report for India notes that the issue of violence against women has had increased attention following the gang rape and homicide of a young student in December 2012 in New Delhi. Reports of rape have sharply increased since 2013, though the conviction rate has declined. The number of cases going unreported is likely to be much higher.[8] It is reported that many women fail to report violence for fear of retribution. Women who are of lower socio-economic class or caste may have particular difficulties in having reports of sexual assault filed or investigated.[9] In traditional rural areas, senior community members have reportedly arranged gang rapes of women as punishment for their families’ perceived misconduct.[10]
[8] DFAT Country Information Report, India, 17 October 2018 at 3.34
[9] DFAT Country Information Report, India, 17 October 2018 at 3.35
[10] ‘DFAT Country Information Report – India’, 17 October 2018, at 3.36
The UK Home Office states that in general the level of societal discrimination against women and girls in India is not sufficiently serious that it would reach the high threshold of being persecutory, but that women who are seen to have transgressed social, cultural and religious norms and who fear gender-based violence as a result may be at risk of persecution or harm.[11]
[11] UK Home Office, Country Policy and Information Note: Women fearing gender-based violence, July 2018 at 2.4.4 and 2.4.5.
DFAT assesses that women 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.[12]
[12] DFAT Country Information Report, India, 17 October 2018 at 3.38 – 3.41
Relocation in India of single women, women with children or victims of familial crime was reported by the UK Home Office to be difficult because of the need to provide details of their husband’s or father’s name to access government services and accommodation. The UK Home Office also noted that single women faced difficulties in accessing housing.[13]
[13] UK Home Office, Country Policy and Information Note: Women fearing gender-based violence, July 2018 at 4.8.1
The Immigration and Refugee Board of Canada, in a research request cites sources which states the percentage of married women has decreased, that 62% of single women in India live in rural areas and widows account for the highest proportion of single women followed by those who are divorced or separated and those who have never married. In India 14% of households are headed by women. It is reported that single women need to depend on someone’s goodwill such as parents, brothers or in-laws to provide for them and their children. Single women are reported to face struggles with renting a flat or being taken seriously as a start-up entrepreneur or getting a business loan.[14] The High Level Committee on the Status of Women reported in 2015 that the incidence of ‘singleness’ is much higher for women than men, and that numerous sociocultural, psychological and economic factors make single women vulnerable and marginalised. Within the category of single women, divorced or separated women are much more stigmatised.[15]
[14] Immigration and Refugee Board of Canada IND106275E ‘India: Situation of single women and of women who head their own households without male support’, 3 May 2019
[15] High Level Committee on the Status of Women, Government of India, ‘Report on the Status of Women in India’ 2015 at >
The article provided by [the applicant] is the author’s personal perspective on community support following rape. It states that India is horrifying for women, for Muslims and for Dalits the support for rape victims is increasing and she did not face hostility from her audience when speaking at a literary festival, and that she sensed a hunger for knowledge:
I know rape is entrenched, quotidian, epidemic. I know many people are clueless, malign, brutal. I know all this because I have seen all this. I see the troll on Twitter, and roll my eyes at the newspaper headlines unable to sing a different tune, that insist on making me sad downtrodden victim. But I also see some other things, things that would not have been possible when I wrote my first piece: my 80-year-old uncles and aunts showing up at my book launch radiating support and love, after almost four decades of not saying a word about the subject. My mother’s driver, hearing about my book, casually asking, “Have you mentioned your own rape?” The woman in Mumbai who wept while asking what to do about her father who loves her but is smothering her for her own protection. The hundreds of people in Jaipur who broke into spontaneous applause when I talked about rapists being ordinary men. The young man who stood up in the audience and said, “What can we do, Mam? What can we do to make it better?”
The Wikipedia information “Violence against women in India” states India has a Gender Inequality Index of 0.524 in 2017, putting it in the bottom 20% of ranked countries from that year. It states 65% of Indian men believe women should tolerate violence in order to keep the family together, and women sometimes deserve to be beaten. It cites a survey in which it is reported 24% of Indian men had committed sexual violence at some point in their lives. It details dowry deaths, honour killings witchcraft-related murders, and female infanticide and sex-selective abortion. It states India is considered to be the world’s most dangerous country for sexual violence against women. It states victims of rape are increasingly reporting their rapes and confronting perpetrators due to increased attention in the media and awareness among Indians and the outside world. It states perpetuation of violence against women in India continues as a result of sexism and patriarchy in Indian culture.
Where the Wikipedia article is supported by other reports such as the DFAT report and the UK Home Office, the Tribunal accepts that women in India are at risk of sexual assault. It does not contain information about single women or divorced woman being targeted, and the Tribunal is not satisfied these articles support that [the applicant] would be targeted because she is a single women or because she is a divorced woman.
[The applicant] gave evidence that her husband said he did not want to stay with her any more. She said she wanted to stay with him, but he moved out. She said she has contacted him many times since to ask about the children. After they separated she asked him “quite a few times” about getting back together but has been refused.
Information from a decision of the Tribunal that relates to her husband, [Mr A], was put to [the applicant] under s.424AA. The information was that her husband gave evidence to the Tribunal that he still wanted to live with her in the future, but that she had given oral evidence said she no longer wanted to live with him. It was put to her that this inconsistency, together with, at that time the absence of sufficient documentation, may lead to the conclusion they were not, in fact, separated. [The applicant] said she had nothing to say in response.
It was put to [the applicant] that the delegate had expressed significant doubts about her status as a separated woman, and found it more likely that she had claimed she was separated as she had exhausted all other migration options to remain in Australia. [The applicant] said she has nothing to say in response other than that she has a fear of going back to India.
After the hearing, she provided a copy of a divorce order from the Federal Circuit Court, and on this basis the Tribunal accepts she is divorced. While it continued to have significant concerns about whether the separation from her husband is genuine, it finds in her favour that if she returns to India it will be as a single divorcee.
[The applicant] says it is difficult for a single woman to survive by herself in India. She said if she returns to India she is concerned about where she will live and what she would do. She said in India that if people know she is single she may be raped or killed or have no-one to look after her. If she lives by herself others may get a group together to attack her. She said she could not live anywhere in India because she could be found by people easily. On being asked how she could be found, she said “they [Hindu hardliners] will know” because “someone will tell them”. [The applicant] said she is not working in Australia. She lives with a friend she met in Australia.
On being asked about living with her mother and brother, she said her mother is very old and her brother has to look after his own family and as a farmer hardly has enough for his own family. On being asked if she could work in India, she said there is not enough opportunity for a single woman.
The Tribunal is not satisfied on the information before it that could not or would not live with her brother and her mother if she returned to India, or that the lack of opportunity for a single divorced woman would threaten her capacity to subsist. While her family will suffer financial hardship were she to return to live with her brother and mother, no other reasons were proffered such that she would be unable to seek shelter with her brother.
The Tribunal has considered other decisions of this Tribunal where it was found that a single woman in India would have a well-founded fear of persecution, however those cases involve circumstances where it has been established that the woman had been a victim of domestic violence and would have to relocate if returned to India due to the risk in her local area. This is not such a case, as [the applicant] is able to return to [her home town] in India where she has family members who, while they may face hardship if she were to live with them, do not pose a risk to her. In these circumstances [the applicant] would not be required by her circumstances to relocate to another part of India as a single divorced woman.
The Tribunal accepts that life is difficult for single women in India, and that [the applicant] may suffer financial hardship if she returns to India. The Tribunal also accepts that [the applicant] fears harm as a single woman in India. It does not, however, accept that there is a well-founded fear of persecution, in the form of a serious harm such as a threat to her life and liberty, physical harassment or ill-treatment, or a threat to her ability to subsist. This is because she has family with whom she can seek shelter, despite some hardship that would result. It follows the Tribunal finds she does not meet s.5J(1)(b) because there is no real chance she will suffer serious harm as defined in s.5J(4)(b) and (5).
Cumulative factors
The Tribunal has also considered whether being a DSS supporter and a divorced single woman would cumulatively mean that she had a well-founded fear of persecution.
The Tribunal does not accept [the applicant] has a well-founded fear of persecution because of either of these factors, and also does not consider that together they result in her having a well-founded fear of persecution.
As the Tribunal does not accept [the applicant] meets the refugee criterion in s.36(2)(a) because she does not have a well-founded fear of serious harm for one of the reasons listed in s.5J(1)(a), the Tribunal has considered if she is a person to whom Australia owes protection obligations under s.36(2)(aa).
As a result of being removed from Australia is there is a real risk [the applicant] will suffer significant harm?
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The term “significant harm” is defined in s.36(2A) as being arbitrarily deprived of life, the death penalty being carried out, being subjected to torture, being subjected to cruel and inhumane treatment or punishment or subject to degrading treatment or punishment.
The Tribunal has found that [the applicant] does not face a real risk of significant harm from Hindu hardliners, from her husband’s family or from neighbours or others because she is a DSS follower. For the same reasons, the Tribunal finds she does not face a real risk of significant harm because she is a DSS follower.
[The applicant] has claimed she will face harm as a single woman in India. The Tribunal does not accept that she faces a real risk of serious harm on the basis of being a divorced single woman. It is also not satisfied that she will face significant harm on the basis of being a single woman. [The applicant] is able to return to her local area, where her brother and mother are living. While this will cause hardship, the Tribunal does not accept this is to the extent that she will suffer significant harm as defined. Her stated fears about being raped or killed or having a group attack her if she lives alone are speculative, and unlikely to occur if she lives with her brother and mother. While attacks on women have been publicised of late, specific attacks are reported to have been in the context of a perceived family misconduct, which is not suggested in this case.
[The applicant] did not suggest reasons other than being a follower of the DSS or being single as she is divorced from her husband which may put her at risk. The Tribunal is not satisfied that any general risk [the applicant] may experience as being a single women means that as a necessary and foreseeable consequence of being removed from Australia she would face a real risk of significant harm.
The Tribunal is not satisfied [the applicant] faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia and that she does not meet the requirements in s.36(2)(aa) for the grant of the visa.

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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Millar
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 1531

3 February 2020

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