1615776 (Refugee)

[2019] AATA 4380

1615776 (Refugee) [2019] AATA 4380 (7 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615776

COUNTRY OF REFERENCE:                  India

MEMBER:Nora Lamont

DATE:7 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 August 2019 at 9:49am

CATCHWORDS
REFUGEE – protection visa – India – particular social group – single/divorced women – single mothers in India – women who have breached religious and social and cultural norms by separating from their husbands – female children of separated/divorced parents – female without male protection – gender-based violence – physical, sexual and psychological abuse of women in the private sphere – ineffective state protection – Protection of Women from Domestic Violence Act 2005 (PWDVA) – internal relocation – need to provide husband’s details to access services – difficulty finding accommodation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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 on 12 September 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of India, applied for the visas on 24 March 2016. The delegate refused to grant the visa on 12 September 2016.

3. The applicant appeared before the Tribunal on 13 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English language.

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

   CRITERIA FOR A PROTECTION VISA

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, he or 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.

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 because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

8. Under s.5J(1), a person has a well-founded fear of persecution if they fear 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. 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.  

9. 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 the 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 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

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant will be harmed in India as a member of a particular social group and whether the applicant and her daughter (secondary applicant) fear persecution.

12. Based on copies of the applicant’s passports which were provided to the Department the applicant’s oral and written evidence, and in the absence of any evidence to the contrary, the Tribunal accepts that the applicants are nationals of India and has assessed their claims against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Migration Act (as amended).

13. On the basis of the abovementioned reasons, the Tribunal further accepts the applicants’ identities as claimed.

14. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purpose of s.36(3) of the Act.

15. The primary applicant travelled to Australia as a dependent on her husband’s student visa in March 2013. The secondary applicant was born in Australia on [date].

16. The applicants claims are accurately summarised by the delegate and are as follows: [1]

    [1] [Department file] page 130

    ·The applicant claims the Indian authorities cannot protect her from harm she fears she will face at the hands of her husband and his family. She claims her husband and his family have threatened to kill her and her daughter in the past.

    ·The applicant claims she is separated but not divorced from her husband. She claims he became violent towards her and she is in the process of obtaining an intervention order.

    ·The applicant claims her husband and his family were not happy that she gave birth to a daughter and her husband told her that he ‘does not need a daughter or her’.

    ·The applicant claims her husband wanted her to pay for a permanent visa and threatened that if her parents did not pay for the visa, the applicant and her daughter would not be included in the application.

    ·The applicant claims after her trip to India in June of 2014 her husband left her as he did not come back to Australia with the money for the visa.

    ·The applicant claims that she again went to India in July of 2014 with her husband although she was not allowed inside her in-laws house. The applicant claims her daughter was pushed and hospitalised for a sprained ankle after her father-in-law pushed her daughter over when her mother-in-law said ‘the whole problem is this I’m going to finish it right now’.

    ·The applicant claims she and her parents lodged a complaint against her in-law following the incident and her father-in-law came to her parent’s home threatening that he should withdraw the complaint. She claims he tried to harm her father and threatened to kill her parents if another complaint was lodged.

    ·The applicant claims she left her daughter with relatives in India found a job on her return to Australia in August of 2015. She claims she hoped she could reconcile with her husband. Her daughter remained in India until February of 2016 when the applicant brought her to Australia.

    ·The applicant claims in September 2015 her husband became more violent towards her and threatened to kill her and her daughter. She claims he called her from India as he heard his daughter was there and thought the applicant was there as well.

    ·The applicant claims her in-laws continued to harass the applicant and her parents over the phone. She claims her in-laws said they knew where her family lived and could easily kill them; and would prefer to kill their granddaughter rather than allow any child support be given to the applicant. The applicant claims the threats were the reason her daughter was moved to different relative’s homes while her daughter lived there.

    ·The applicant claims her husband is in Australia and even if she were to grant him a divorce as he wants, her husband and his family will still try to harm the applicant so that people do not become aware ‘what has happened and this will ensure he does not have to give her any money’.

    ·The applicant claims she cannot live in India as a single mother as the family does not have the finances to support her. The applicant claims if she lived at home it would be difficult to for her [younger sisters] to be married to good men. She claims her parents cannot support her if she lived away from home.

    ·The applicant claims she cannot work and care for her daughter in India as a single mother. She claims there is no child care in India and doubts she would be able to find a job upon return, as being a single mother makes securing work difficult.

    ·The applicant fears her husband’s family or relatives will find her in India as he has relatives all over India. She claims that as a single mother the community will gossip about her and her husband’s family will be able to find out where she is living and harm her.

    ·The applicant claims the Indian authorities cannot protect her as her husband’s family and neighbour are friends with local members of Parliament who she believes will assist in delaying her complaints. The applicant claims she has a complaint against her husband’s parents currently and it has not progressed.

    Tribunal Hearing and Claims

17. The applicant originally arrived in Australia in March of 2013. Her husband through an arranged marriage told her that he had applied for permanent residency but it turned out he was on a student visa. The applicant moved into a house with her husband, his sister, and her husband. The applicant’s husband was friendly at first then became abusive and beat her. Her brother in law sexually assaulted her. Her husband had a girlfriend and would often stay with her or bring her to their home.

18. The applicant became pregnant and was physically assaulted by her husband at the train station and it was reported to the police. The applicant also started a course of study but her husband refused to pay the fees. The applicant’s mother died in India and she returned for a few months. Upon return the applicant became pregnant and her husband forced her to have an abortion because he didn’t want another daughter. In 2015, the applicant’s husband forced her to go back to India to get money for his visa applications. It was during this trip that the applicant’s daughter was assaulted by her in-laws.

19. The applicants in laws assaulted her daughter and pushed her to the ground and she received injuries to her legs, back and face and she was hospitalised for five days. The applicant and her father went to the police however, they failed to follow up. Further, the applicant’s in laws continuously harassed the applicant’s father.

20. The applicant and husband have since split up and the applicant fears for her safety from her husband and his family. In 2015 the applicant’s husband sent an email to the Department from India demanding his wife be taken off his visa as a dependent.

21. The Tribunal has considered whether the applicant is a member of a particular social group that being:

    ·Single/separated/divorced women

    ·Single mothers in India

    ·Women who have breached religious and cultural, social norms by separating from their husbands

    ·Women who suffered domestic violence

22. Based on the available country information and the oral and written evidence of the applicant the Tribunal finds that the applicant is a member of a particular social group and as such the applicant faces a real chance of harm arising from this membership. Country information notes that central to the problem of gender-based violence in India is that men and women are socialised to believe that men’s dominance over women is normal and acts of violence against women are justified. The causes of intimate partner violence against women are thus rooted in India’s social, cultural and economic context. [2]

    [2] ICRW, Masculinity, intimate partner violence and son preference in India –page 3 2014

23. Further, 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. [3]

    [3] UN Special Rapporteur 1 April 2014 –page 8

24. Further, the Tribunal considers that the secondary applicant is also a member of a particular social group that being:

    ·Female child in India

    ·Female child of divorced/separated parents

    ·Female child without male protection

25. The fact that the secondary applicant is a small child and dependent on her mother (the primary applicant) the secondary applicant would experience the same harm as her mother as a member of a particular social group. Further, it is clear from the evidence before the Tribunal that the secondary applicant will not have any family in India to take care of her given they have already physically harmed her.

    Conclusion

26. In the circumstances of the applicant, the Tribunal considers that the subjective fear that the primary applicant has for the future is objectively made out on the available country information. The Tribunal considers that the violence and fear of being killed does constitute serious harm. The Tribunal therefore considers, based on the evidence before it, that the applicant has a real chance of harm arising from her membership of a particular social group of single/divorced women, single mothers in India, women who have breached religious and social and cultural norms by separating from their husbands, and the secondary applicant as a member of particular social group female children of separated/divorced parents and female without male protection.

27. The Tribunal finds that the applicants have a real chance of serious harm on return to India as above and the Tribunal finds that the applicants have a well-founded fear of persecution for this reason.

28. With respect to state protection, the Tribunal is not satisfied the applicant and her daughter (Secondary applicant) can avail themselves to the state for protection. The Tribunal has also considered all of the available country information that suggests while reform in India related to the treatment of women who suffer domestic abuse has improved with the Protection of Women from Domestic Violence Act 2005 (PWDVA) which came into force in October 2006 it is still ineffective and the applicant and her daughter will not be afforded effective protection.[4]

    [4] Country Information and Guidance UK Home Office India: Women fearing gender based harm and violence April 2015

29. With consideration of relocation, whilst the Tribunal notes that citizens can move about India freely and there is little restriction on internal movement the UK Home Office reports that relocation within India for single women, women with children or victims of familial crime was reported to be difficult because of the need to provide details of their husband’s or fathers name to access government services and accommodation. Single women also faced difficulty finding accommodation. The Tribunal does not consider that there is a location within India where the applicant would not face the real chance of serious harm arising out of her circumstances and the particular social group that the applicant is a member of. [5]

    [5] UK Home Office Country Policy and Information Note India: Women fearing gender-based violence Version 2.0 July 2018 page 10

30. The Tribunal finds that the applicant has a real chance of serious harm arising from her membership of a particular social group. The Tribunal finds that the applicant has a well found fear of persecution for this reason.

31. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).

32. 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

33. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

    Nora Lamont
    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.

    …