1617313 (Refugee)

[2021] AATA 1389

1617313 (Refugee) [2021] AATA 1389 (19 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617313

COUNTRY OF REFERENCE:                   India

MEMBER:Denise Connolly

DATE:19 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 19 March 2021 at 10:56am

CATCHWORDS

REFUGEE – protection visa – India – particular social group –  a single woman with no male protection in India – a single mother – single divorced woman who is also a mother – victim of domestic violence – husband’s father is an influential politician – fears harm from her ex in-laws – manufactured claims to strengthen her protection claims – dowry issues – honour killings – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2
Victim’s Rights and Support Act 2013 (NSW)

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 on 23 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of India applied for the visa on 31 July 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.  

3. This matter was constituted to a Sydney based member because the applicant had informed the Tribunal that she resided in Sydney. The Tribunal wrote the applicant on 22 September 2020 advising that it would be recommencing in-person hearings in the foreseeable future. It asked her to provide information about whether witnesses and/or a representative would be attending and if she needed an interpreter for the hearing. The applicant responded advising that she was suffering from severe depression and insomnia and so visited [State 1] to stay at a friend’s place for a change in atmosphere and environment. She indicated that having spent a few months in [State 1] she thought she needed more time until she felt alright. She indicated she had been hit while crossing the road in [State 1] and her health deteriorated, although her CT scan was normal. She indicated her friend in [State 1] was looking after her. She asked that the hearing be postponed because she could not afford to pay an agent. She provided a record from [Hospital 1] recording that she had attended the hospital in July 2020 after the accident. She had a [injury] and was discharged after observation. She also provided a medical certificate indicating she would be unfit for work from 6 to 15 September 2020.

4. The Tribunal wrote to the applicant on 29 September 2020 advising that, as she was residing in [State 1], it may be appropriate to conduct her hearing by video link. It also asked if she had any further medical evidence she wished to have taken into account regarding her capacity to participate in a hearing. The applicant did not respond. The Tribunal wrote again on 6 October 2020 and asked that she provide information by 16 October 2020. On 16 October 2020 the applicant provided a medical certificate indicating that she had presented to a general practitioner, Dr [A], reporting a high level of emotional distress, having applied for protection following separation from her violently abusive husband whom she divorced in 2016. The doctor formed the view, based on her presentation, that her request for adjournment of the hearing until early 2021 was reasonable.

5. On 1 February 2021 the Tribunal wrote to the applicant advising that it had tried to contact her using her mobile telephone number but was unsuccessful. It asked that she advise the Tribunal, by 3 February 2021, of her current residential address and where she would be residing for the next two months. On 3 February 2021 the applicant advised that she would be residing in [State 1] for at least the next two months but she may return to NSW in May 2021. The Tribunal decided it was appropriate to hold her hearing by video conference and arranged for her to participate in her hearing from [a local] Magistrates Court. It also arranged for a Bengali interpreter to assist in the conduct of the hearing. On 2 March 2021 the applicant confirmed that she would be participating in the hearing and the hearing proceeded as scheduled.

   CLAIMS AND EVIDENCE

   Evidence provided to the Department

6. The applicant is a [age]-year-old Indian national. She was born in [City 1] West Bengal. Her parents reside in [City 1], India. She first arrived in Australia [in] December 2012 as a dependent applicant on her then husband’s Subclass 457 Temporary Work (Skilled) visa. She speaks, reads and writes in Hindi, English and Bengali. She returned to India in February 2014 for 3 months and in March 2015 for one month. She completed secondary school and a [degree].

7. The applicant claims to be the victim of domestic violence perpetrated by her former husband, [name deleted]. She provided to the Department two provisional apprehended domestic violence orders, both made in October 2014, the first protecting her former husband, in which the applicant is identified as the person of interest, and the other protecting the applicant from him.  She provided evidence that she subsequently sought to have withdrawn the ADVO protecting her.

8. The applicant provided a written statement with her visa application in which she makes the following claims. She separated from her husband in March 2015 (although she stated in her visa application that she separated in September 2014). Her husband was “very aggressive and abusive” towards her after arriving in [State 2] in December 2012. They moved to [State 3] in January 2013, and his behaviour was abusive. She called the families in India to inform them about his behaviour. His father said the applicant needed to “fix” herself, as his son was not doing anything wrong. He threatened to “fix” her family in India if she gave her husband a hard time. The applicant got scared and decided not to complain to the police.

9. The applicant claims that in December 2013 the couple settled in Sydney. Through family intervention, they attempted to resolve their issues but it did not work. His aggressive behaviour continued and he would hit her, take her pay and transfer it into his account, leaving her with no money.  He would often stay away on his days off, deliberately causing her anxiety. On [date] September 2014 he assaulted her. She called the police and an AVO was issued. However because of family pressure she withdrew the AVO.  

10. The applicant claims her husband’s father is an influential politician in India, and very close to [Government Official 1] of Kolkata. She provided photographs claiming to be of her father-in-law with a politician at her wedding. Her father-in-law has been threatening her and her parents in India since she arrived in Australia, but the threats intensified after she called the police. He said he could kill her parents in a motor accident, which she claims is a common form of killing by politicians in India. She was scared, and her parents, fearing for their safety, pressured her to withdraw the AVO. 

11. The applicant claims that in March 2015, the couple travelled to India, residing with her husband’s family. They physically abused her and threatened to take her life. Her father visited her, fearing for her safety, but her father-in-law threatened him and pushed him out of the house. Her husband said he would arrange for the police to torture her father. Her father left without saying goodbye to her and she had to continue living at her in-laws’ house, like a prisoner.

12. The applicant returned to Australia [in] March 2015 and has been separated from her husband since [date] March 2015. She seeks protection because she is a single woman with no male protection in India. Her parents are old and unable to protect her from male aggression and the influence of her husband. She has received several messages from her in-laws that they will kill her on her return to India. Her husband also made similar threats via friends.

13. The applicant provided to the Department various documents. In the Grounds of the application set out for the ADVO, dated [date] September 2014, in which the applicant is the person of interest, the police recorded the following. The applicant made it clear she no longer wanted to be in the marriage and that she had been staying away from the home overnight. She had previously been reported as missing by her former husband. The pair were constantly arguing about matters but her former husband was trying to resolve the situation. He wanted to return to India and have their respective families assist in the resolution. She did not want to do this but wanted to stay in Australia and live separately until her former husband was granted permanent residence, thereby allowing the applicant to also be granted permanent residence before they divorce and go their separate ways. The former husband alleged that she had offered to pay him $50,000 to agree to this. On [date] September 2014 the couple were arguing about returning to India and speaking to his family over the phone when the applicant became aggressive. That night her former husband attended [a] police station seeking general advice but in particular with respect to her offer of $50,000. The police recorded that her former husband had several fresh scratch marks on his face and neck. He was asked about the marks and responded “my wife and I are having problems”. The police requested that he make a statement regarding the injuries but he was adamant that he would not provide a statement saying “any problems, I will sort out in India, I don’t want my wife charged, she is my wife”. He would not further elaborate on how the scratches occurred. He acknowledged that the couple were constantly arguing and there was hostility. The police noted that they strongly suspected an assault had occurred but her former husband refused to provide a statement.

14. The applicant also provided the Grounds relating to the ADVO made to protect her. The police noted that she had advised the marriage was arranged by both families in India. She informed the police that she had been the subject of psychological torment and that her former husband would not let her leave their home without being in his company, other than to go to work. She was not allowed to socialise and she was constantly belittled. Previously she had caught the train to Kiama rather than go home as she was scared of her former husband. She alleged that she was the subject of social isolation, financial restrictions and psychological torment. She alleged the former husband exerted power over her insisting that she would be shunned by the community and her family if she left the marriage. She told the police that on one occasion after she had stayed away, on [date] September 2014, her former husband returned home and found her asleep. He pulled the blanket off her and was yelling at her “Why did you not come back home?”. She alleged that he grabbed her and pulled her up to a seated position. When she tried to call the police, he took her phone. She informed the police that she wished to end the marriage as she had had enough of the psychological torment. The police recorded that there were no other issues and the parties remained in the same home without incident for that night. Her former husband drove her to work and she returned home with no further issues. However on [date] September 2014 she claimed she received phone calls from her former husband that she did not answer. Ultimately she answered and told him that she did not want to live with him anymore. He arrived at her workplace and insisted she return home. She then contacted police who attended her workplace. She told them that she had been hiding from her former husband and that he had assaulted her the previous day. He was then placed under arrest and cautioned. He denied the allegations regarding the assault. The police noted that, due to the conflicting versions and the lack of physical signs of assault or any other evidence, her former husband was not charged with assault and he was released. However they sought the ADVO with regard to the allegations of social isolation and psychological torment.

15. The applicant also provided a copy of an email exchange between her former husband and his lawyer dated [date] October 2014 in which it is recorded that the applicant contacted her former husband’s lawyer and said that she wanted a divorce straight away. She wanted to claim that it had not been a real marriage and that she had been living separately for the last 18 months. The lawyer recorded that she explained to the applicant that there needed to be a separation of at least 12 months prior to applying for a divorce in Australia. She recorded that the applicant stated she wanted a divorce now and she did not care about the visa implications as she would simply marry someone else to remain in Australia. The lawyer recorded that she explained to the applicant that this was not proper and Immigration would look at this very carefully, to which the applicant responded that she would seek to remain in Australia on a student visa. The lawyer recorded that the applicant did not seem to think it was wrong to tell lies.

16. The applicant also provided a copy of documents relating to counselling, dated 10 October 2014, indicating that 10 hours of counselling, pursuant to the Victim’s Rights and Support Act 2013, had been approved for the applicant and an assessment would be undertaken at her first appointment to see if she needed further counselling.

    Evidence provided to the Tribunal

17. The applicant provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was interviewed by the delegate on 30 August 2016. During that interview she corrected typographical errors made in her written statement. She also informed the delegate that she was still married to her former husband who was in Australia as the holder of a Subclass 457 Visa, working as a [occupation]. She advised that her father, aged [age], works [for a company]. Her mother, aged [age], did not work. The applicant claimed that she was not working and her father was supporting her by sending her money from India. She told the delegate that in fact she was residing with her father when she departed India for Australia in March 2015. She indicated her father took her to the local police station [in] 27 March 2015 to raise a complaint about her husband however he was not arrested. She left India for Australia on [date] March 2015. She claimed to fear she would be killed by her in-laws, who have political connections, if she returned to India because divorce is taboo.

18. The delegate found that the applicant would not be killed by her parents-in-law or by her husband if she returned to India. The delegate was also satisfied the applicant would be supported and protected by her family while she lived and worked in India.

19. When making her application for review the applicant provided to the Tribunal medical records for her grandfather indicating he had been admitted to hospital with urinary tract infection, vascular dementia and psychosis in 2013 and 2016. She also provided receipts for gold purchased in India in 2011, 2012 and 2013 and indicated this related to the dowry.

20. The applicant provided to the Tribunal a letter from Dr [B] dated 25 February 2018 indicating she had presented to his practice with chest pain and she had reported to him that she was under a lot of stress and suffering panic attacks and suicidal thoughts. She informed Dr [B] that she had lived with domestic violence in the previous 12 months and was in touch with the domestic violence support team.

    Pre hearing submissions

21. Prior to the hearing the applicant made written submissions are provided imitation including the following:

    ·antenatal blood test results reported in January 2021

    ·general costs agreement with [a law firm]

    ·statement of attainment from [two schools]

    ·certificate dated 27 August 2020 issued by [an organisation] for a [course] completed by the applicant in June 2020

    ·certificate for [a] course issued by [University 1] completed by the applicant in May 2020

    ·report from [Hospital 1] recording the applicant was injured [in] July 2020 in a motor vehicle accident

    ·letter of offer for enrolment in [Degree 1] from [University 1] dated 8 May 2019, to be commenced in February 2020

    ·Academic Transcripts issued by [University 1] recording the applicant’s results for semester 1 and semester 2 2020

    ·various certificates from [an organisation], dated September 2019 and September 2020, acknowledging the applicant’s participation in voluntary work in 2019 and 2020

    ·medical certificate indicating the applicant was unfit for work from 6 September 2020 to 13 September 2020.

22. The applicant also provided a statutory declaration attested on 15 March 2021, by Mr [C], businessman (no address provided), stating he met the applicant in February 2017 in [a named] car park where she was living. He took her home. She had a panic attack in 2018 and it took over two years for her condition to stabilise. She got work rights in 2019 and is now pursuing a [degree] at [University 1].

23. The applicant also provided a written submission in which she set out the history of her relationship with her former husband. She claimed he used to hit her, control her and deny her access to her income from her work in Australia. She described various violent incidents. She told her boss at [her workplace] and arrangements were then made for her to be paid by cash. She claimed that when the parties were living in [location], in September 2014 she decided not to return home but stayed at Central Station and caught a train to Kiama. Her ex-husband was very worried and lodged a missing person’s report with the police. She claimed she then spoke to her family in India who advised her ex-husband was really worried and promised that he would no longer abuse her. She claimed that she begged her ex-husband for a divorce as they had not been in a physical relationship for a year, but he was unwilling to divorce. She claimed there was another occasion when she did not return home from work but stayed on Night Rider buses all night. She indicated that when she did returned home her husband found her lying on the bed and attempted to choke her. She claimed that she wanted to call the police but he took her phone. She claimed the next afternoon the police came to her home and issued an AVO against her. She contacted her employer who suggested she go to the police which she did. She then attempted to leave but her ex-husband arrived at her workplace and told her she needed to go home. Her workplace called the police who attended. She told the police about her husband’s violence and they arrested him. The AVO against her was then withdrawn and she got a property order allowing her to recover her personal property.

24. The applicant claims that she was accused of stealing a luggage bag and $500 by her former husband. She called his lawyer who she claims “works for criminals only”.  She acknowledged that she told his lawyer that she wanted a divorce as they had not had a physical relationship for over a year as she knew that, even if she was living under the same roof, she could get a divorce.

25. The applicant referred to the email sent to her former husband by his lawyer. She claimed that it was taken to her uncle’s workplace in Kolkata by her former husband’s father to drag her character down and mentally harass her. She claimed her parents faced continual harassment and they were scared. She provided a copy of the email to the Department to show the harassment she faced. With respect to the delegate’s question as to why a lawyer would lie, the applicant stated “lawyers are liars, the whole world knows, they can do anything for money. Studies show that lawyers are the least trusted profession, not only in Australia but in the rest of the world.” She provided survey results recording data about perceptions of various professions, including lawyers, in Australia and the USA.

1. The applicant claimed that her ex-husband called her a few times and threatened to tell the Department that she married him to come to Australia. She claimed that he asked her for $50,000 or he would have her visa cancelled and his family would harass and torture her, which they could do because of his father’s political power. She claimed she was forced to withdraw the AVO by her former husband’s lawyer who told her to write to the Magistrate seeking to have it withdrawn. In December 2014 the AVO was withdrawn and her husband hit her on that day but she was unable to lodge a complaint. She claimed that her husband forced her to withdraw the AVO so that he had the police clearance required to get his visa. She claimed that when she was in India she was not able to lodge a complaint with the police because of the political involvement of her ex-father-in-law.

2. The applicant claimed that she fled India in March 2015 and returned to Australia to save herself from the torture and to get her rights. She then lodged her protection visa application in July 2015. However she had no work rights in Australia and was surviving on “a few pennies” sent to her by her father. After the divorce was granted in late 2015 things deteriorated in India and her family received threats which forced her family to cut off contact with the applicant as they were “super scared” as her ex husband’s family could plan a road accident against her father. She lost all connection with her family and all monetary support. She was homeless in 2017 when, on a random day she met an elderly man, Mr [C]. He provided her with accommodation and support. She survived on sleeping pills. In 2018 she had panic attacks. However Mr [C] and his family motivated her and in early 2019 she started doing volunteer work. She got work rights and became financially independent. She achieved the required English language score and got an offer from [University 1]. Mr [C] helped her find accommodation in [State 1]. He thought it was better for her to move to [State 1] as she needed a change of environment for a fresh start. Life got better because she got a job in a [workplace] and she was making good money. However COVID19 hi, she lost her work and she financially struggled. She was prescribed depression and sleeping pills by a local GP in [State 1]. She was supported by social workers. She then had an accident in July 2020 when a car hit her. She had no one in Australia or the whole world who could help her.This situation hampered her study and grades. She was under financial pressure to pay her fees. On [date] 2020 she was feeling anxious, depressed and lonely as she had no one to celebrate with. So she went to a nearby pub and had a few drinks to feel better. She then became intimate with someone she did not know. In January 2021 she found out she was pregnant. Her estimated date of confinement is [date]. As India is conservative, and she will be a single mother, she will not be able to survive there. Her child will not be able to get a passport or his birth registered or admission to a school. She will be tortured as a single mother. But at least now she will have family, a blood relative.

   Hearing on 16 March 2021

3. At the commencement of the hearing the applicant indicated that she was confident to give her oral evidence in English. She indicated that she would use the interpreter if need be, which she did occasionally. The Tribunal is satisfied the applicant was able to express herself and engage meaningfully in the hearing.

4. The Tribunal explained to the applicant the requirements of the law and discussed with her the concerns raised by her written and oral evidence. The following is a summary of her oral evidence.

5. The applicant informed the Tribunal that Mr [C] would not be available to give oral evidence. She confirmed that he lives in NSW but was at work on the day of the hearing.

6. The Tribunal raised with the applicant its concern that there appeared to be inconsistencies in her evidence with respect to a number of her claims. It raised its concern that she had informed the Tribunal in September 2020 that she was suffering from severe depression to the extent that she would not be able to participate in a hearing. It explained however that she has since provided evidence that she was studying for her [Degree 1] at that time, and working in [Industry 1]. It also noted that she had provided evidence that she had undertaken voluntary work in 2020. It explained that this evidence might cast doubt on her claim made to the Tribunal that she was experiencing emotional distress to the extent that she could not participate in hearing. The applicant indicated that at the time she had been suffering insomnia and the consequences of a road accident in July 2020. She indicated that while she was studying her capacity was impaired. The Tribunal noted that her Academic Transcript recorded that she in fact undertook five units in the second semester of 2020, passed all units and scored a distinction in one unit. The applicant indicated that that unit was undertaken early in the second semester, before September 2020 when the Tribunal made its enquiries about her readiness for a hearing.

7. The Tribunal asked the applicant about her last address in India. She gave an address in [City 1] Kolkata and said she had lived there since her birth. It was her parents’ home. She said however that she was not sure if her parents were still living there because she has had no connection with her parents since September 2017.

8. The Tribunal asked the applicant if she stayed at that address when she returned to India in March 2015. She confirmed she last stayed with her parents at their home in March 2015 and returned to Australia from their home. She stated she also spent time at her in-laws, however confirmed that her father took her to the airport when she returned to Australia.

9. The Tribunal asked the applicant about her qualifications and employment experience. The applicant confirmed that she completed a [degree] in India and started a [course]. She is currently undertaking [Degree 1] at [University 1] which she commenced in semester 1 2020. Her Academic Transcript indicates that she was given exemptions for a number of subjects which she had already completed, although it does not indicate when those units were undertaken.

10. The Tribunal asked the applicant who is paying her fees for her current study. She indicated that she pays for the study. She then indicated that Mr [C] paid for her first year, $32,000. The Tribunal asked why he would have done this. She stated she borrowed the money from him but she has now paid him back. The Tribunal asked about the source those funds. She indicated she had been working in [Industry 1]. The Tribunal asked how she was able to study full-time and work in [Industry 1] and earn sufficient income to repay a $32,000 debt and cover her costs of living such as accommodation, food and transport without other financial support. She indicated that she did not have high transport expenses. She claimed she was able to juggle work and study and earn enough to repay Mr [C]. She confirmed that she studied for the whole of 2020 although not face-to-face because of COVID19 restrictions.

11. The Tribunal asked the applicant about her current circumstances. She indicated she works at [a workplace] in [State 1] where she started in 2019. She also started studying in [State 1] in 2019. The Tribunal noted that she had informed the case officer that she would be returning to NSW in 2021 and asked how this would be possible if she is studying for her [Degree1 ]. She indicated that Mr [C] wants her to return to NSW and study part-time. The Tribunal asked about the nature of her relationship with Mr [C]. She indicated it is friendship, like a father daughter relationship.

12. The Tribunal asked the applicant about the pregnancy and any personal relationship. The applicant indicated she is currently [number] weeks’ pregnant. She denied being in any relationship. The Tribunal asked about the circumstances of the conception. She indicated she went out and became intimate with someone. She has had no contact with the person since. She claimed she was not able to give the person’s name or citizenship. She indicated she wants to have a baby because then at least she will have a blood relative. She denied any current intimate relationship with Mr [C] or anyone else.

13. The Tribunal asked the applicant about her separation and divorce. She indicated that she and her ex-husband separated in March 2015. She subsequently divorced him. The Tribunal asked if she had the divorce certificate. She indicated she did not have it but from memory the divorce was finalised in October 2016. She made the application for the divorce. The Tribunal asked if she has been in a relationship since she separated from her former husband. She denied being in any relationship. She denied seeing her former husband since 2015. She did not know where he was living or if he had re-partnered.

14. The Tribunal asked the applicant why she moved to [State 1]. She indicated she tried to enrol in a [Degree 1] in NSW but was unsuccessful. She got admission to the [Degree 1] at the University [and] decided to move there. The Tribunal noted that this reason appeared to be somewhat different to the reason she had given previously to the Tribunal. The applicant indicated it was also cheaper to live in [State 1]. She indicated that once she has her qualification she can live anywhere in the world. The Tribunal noted that she may be able to return to India in those circumstances. She said she cannot return to India because she fears harm from her ex in-laws.

15. The Tribunal asked the applicant about her father’s employment in India. She indicated that when she last saw him he was [working]. She acknowledged that he was earning a reasonable income, she thought the equivalent of about A$2000 a month. However she claimed she has had no contact with him since 2017, after the divorce. The Tribunal asked why she ceased to have contact with him in 2017. She indicated that her in-laws had said that they would say she had died in Australia because of the shame associated with divorce. She indicated that her in-laws were stopping her parents having contact with her. The Tribunal questioned why she could not contact her parents from Australia. She indicated that they do not know where she is as she has changed her [social media] account. The Tribunal asked the applicant again why she cannot make contact with her parents in India. She indicated that if she contacts them it would be very humiliating. The Tribunal questioned why her contacting her parents would cause them humiliation. It also noted that she has now been divorced for over four years. It questioned whether it was the case that she is no longer in contact with her parents. The applicant claimed that her parents said if she contacted them the in-laws would harm them.

16. The Tribunal asked the applicant about her former father-in-law’s employment. She stated he was in politics. She confirmed however that he is not a Member of Parliament. The Tribunal asked about his employment prior to his involvement in politics. She indicated she had no idea. The Tribunal explained that it may not accept, on the basis of the evidence she had provided so far, that her father is influential in politics. It noted that all she had provided were a few photographs said to be of her father-in-law and a politician. The applicant repeated that her father-in-law is influential in politics and has a connection with an elected politician who attended her wedding. Her father-in-law belongs to the Trinamool Party, the ruling party in West Bengal. The Tribunal indicated it may accept that her father-in-law belongs to a political party but it may not accept that he has political influence or strong political connections. The applicant referred to a dowry complaint and said she went to the police about her husband but the police would not take her complaint because of her in-laws’ political connections. She indicated if they had not been connected he would have been put in jail. She confirmed that her in-laws live about [number] km from her parents’ home. The Tribunal suggested in those circumstances they may never come into contact if she returned to her family home in India. She repeated that they may try to kill her if she returns.

17. The Tribunal noted that the applicant had indicated previously that her father was supporting her in Australia. The applicant confirmed that her father continued to send her money until the end of 2016. However after the divorce he stopped supporting her. The Tribunal questioned why he would do this, given he was supporting her after the separation. She indicated that the divorce made the separation more permanent and that was when he had to stop supporting her because of fear of the in-laws.

18. The Tribunal noted that the applicant has claimed to have suffered episodes of depression and anxiety in Australia. However it also noted that she has been able to move interstate, secure accommodation and employment, commence and succeed in her [studies]. It explained that this may raise concerns as to whether she has genuinely suffered depression and insomnia to the extent she has claimed. The applicant indicated she was on medication for depression and insomnia. She indicated she could not work in the first semester because of COVID19. She indicated that she had a few phone consultations with Dr [A] and he also referred her for counselling with [a service]. She had three or four counselling sessions by telephone.

19. The Tribunal noted that the applicant had provided evidence indicating she had been approved for 10 sessions of counselling in 2014 under the Victims Rights and Support Act. It asked if she undertook that counselling. The applicant confirmed that she did not do any of the sessions. When asked why she did not participate in that counselling, she indicated she was working. The Tribunal questioned why she would not have participated in the counselling if she needed it. She indicated she had to go to the police station all the time and she was not given permission to have time off work. Also she was being harassed by her former husband. She did not have the time to attend the counselling sessions.

20. The Tribunal asked the applicant if she travelled to India with her former husband in March 2015. She confirmed that they flew to India together in March 2015. She indicated that the AVO had been withdrawn and they were trying to reconcile but it was unsuccessful. After spending time at her in-laws she went to stay at her father’s place and that was the end of the marriage. The Tribunal asked the applicant if her parents knew at that stage that she considered herself to be separated. She indicated that it was not until the divorce was finalised that they accepted that she was no longer married.

21. The Tribunal noted that when the applicant made her visa application she provided two ADVOs to the Department. The first protected her former husband from her. It noted that the police had made notes that he presented at the police station with scratches on his face and that her former husband did not want her to be charged because he did not want there to be any problems for her. He indicated however that she had offered him money so that they could continue to present as being in a relationship for the purposes of securing permanent residence in Australia. The Tribunal asked if the applicant had any comment to make about the information she provided which may indicate that she had perpetrated violence against her former husband. The applicant became very distressed at this point. She described in some detail the violence in the relationship. She asserted that she wanted to divorce him in September 2014. She went missing from the home because she did not want to be with him. When she returned home she made a complaint to the police but her parents assured her that he would not hit her so she returned to the relationship. He was good to her for a while but then he became violent again. She left the home again and he did not contact the police - he did not lodge a missing person’s report for one week. She returned and there was another incident. She scratched his face when he was trying to choke her. She tried to reconcile with him having been assured that he would not beat her but when she returned he beat her again. She indicated that they were then living separated under one roof.

22. The Tribunal raised with the applicant the email from her former husband’s lawyer indicating the applicant had wanted to claim that they had been separated for 18 months in order to expedite a divorce. It noted that the lawyer also recorded that the applicant had claimed she would simply marry someone else so that she could remain in Australia. The lawyer then expressed her concern that the applicant did not think there was anything wrong with telling lies. The applicant became very emotional at this stage. She claimed her former husband’s lawyer is a defence lawyer who would do and say anything for money. She then recounted the circumstances leading to the email; her recovering a luggage bag and being accused of stealing it, along with $500. The applicant indicated that the former husband’s lawyer works for criminals. She also referred to perceptions of various professions and indicated that the majority of people do not trust lawyers.

23. The Tribunal asked the applicant what she fears would happen to her if she returned to India. She is stated that her life will be in danger. She is also worried about her child who will not be able to go to school as she cannot give the father’s name.

24. The Tribunal explained to the applicant that the DFAT country information indicates there are about 73 million single women living in India, including divorced and separated women and single mothers. It explained that there are also shelters for women with children and country information confirming that there are antenatal and obstetric services for women in Kolkata. It also noted there is country information about mental health services available in Kolkata. The Tribunal explained to the applicant that while it may accept that she would face challenges as a single mother, it may not be satisfied there is a real chance or a real risk of serious or significant harm. The applicant indicated that accommodation will be a problem because she has no contact with her family. The Tribunal explained that it may not accept that she has no contact with her family. The applicant indicated that if she goes back to India they (the in-laws) are going to kill her. The Tribunal explained that it may not accept on the evidence before it that they would do this. The applicant indicated that she would love to go back to India but she wants to get her [professional] registration. She has decided she wants to complete her [degree] here. If she returns to India she would not get credit for the study she has undertaken so far.

25. The Tribunal explained to the applicant that it appeared she is very resourceful. She has been able to move interstate, secure employment, accommodation and enrolment in a tertiary course, for which she has studied on a full-time basis. It noted she already has a tertiary qualification and has good language skills. It explained that it may form the view that she would be able to return to India and establish herself even if she has a child. The applicant indicated it will be difficult for her to find work and study. As a single woman she will be socially ostracised and people will gossip about her. Even if she relocates, she will suffer the same problems. The Tribunal indicated it may accept that she will be ostracised and gossiped about however it may not accept that this is serious or significant harm.

26. The Tribunal gave the applicant an opportunity to comment on other country information concerning single and divorced women in India, from DFAT, the UK Home Office and the Immigration and Refugee Board of Canada. It also discussed with her country information about “honour killings” which indicates they are rare.

1. The applicant indicated that her CV will not be accepted in India. While she will be able to deliver the baby in India she will have trouble registering the birth. The social work services are different there. While there are orphanages she wants to keep her baby. She repeated her claims about the problems she will have with her in-laws because of their political connections.

2. The Tribunal asked the applicant if she had any other evidence to give before it closed the hearing. She indicated that she is in the process of claiming compensation for the [accident]. She indicated that she has nothing to go back to in India and she wants to remain here to complete her studies and be secure. She will not be able to study in India because she is too old. If she had the option she would go back but all of her effort would be wasted.

   Post hearing submissions

3. After the hearing the applicant wrote to the Tribunal and made the following submissions. She moved to [State 1] because she was unsuccessful in her attempts to enrol in various other universities across Australia. She provided evidence of her several attempts to enrol. If she had family support she would have enrolled earlier, from 2015 to 2017. She was having panic attacks in 2018. She provided photographs of an antidepressant prescribed in September 2020 and sleeping medication prescribed in May 2020. She mostly studied online in 2020. She wants to change her university.

   Country information

4. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

5. DFAT reports that single women reportedly make up 21 per cent of India’s female population, at around 73 million. These include unmarried, divorced, separated and widowed women. The 2011 Census recorded an almost 40 per cent increase in their numbers over the preceding decade. [1] DFAT previously reported that around one in 1,000 marriages in India ends in divorce, although rates are reported to be increasing.[2] 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 in terms of financial support and living arrangements after separation. The rate of re-marriage was low.[3] 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.[4]

   [1] ‘DFAT Country Information Report: India’, 10 December 2020, p.41

   [2] ‘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

   [3] ‘Progress of the World’s Women 2019-2020: Families in a Changing World’, UN Women, 25 June 2019, p.127

   [4] UK Home Office, Country Policy and Information Note: Women fearing gender-based violence, July 2018, at 7.2.2

6. 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.[5] 

   [5] UK Home Office, Country Policy and Information Note: Women fearing gender-based violence, July 2018 at 2.4.4 and 2.4.5.

7. DFAT assesses that women face a moderate risk of societal discrimination and violence and a low risk of official discrimination in that there are constitutional and legal protections for women.[6]

   [6] DFAT Country Information Report, India, 10 December 2020, p 42-43

8. 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. 

9. There have been reported acid attacks and so-called ‘honour killings’ against women in India, with sulfuric acid used to disfigure and sometimes kill women and girls over family feuds, inability to meet dowry demands or rejection of marriage proposals. ‘Honour killings’ of women (purportedly to uphold the family honour) have also been carried out in cases of alleged adultery, premarital relationships, rape or falling in love against family wishes. Media reported Indian police registered 251 ‘honour killings’ in 2015, compared with 28 a year earlier when India began counting them separately from murder, indicating that while they are concerning they are rare. In 2019, media claimed the newly-released NCRB’s 2017 Crime in India report had left out ‘honour killings’ because it found the available data ‘unreliable’ and ‘vague’. Most ‘honour killings’ are reportedly from the northern states where the influence of conservative Khap Panchayats over communities is greater. Although official statistics on ‘honour killings’ are not readily available, DFAT understands the practice is not widespread.[7]

   [7] DFAT Country Information Report, India, 10 December 2020, p 41

10. While DFAT reports that access to mental health care can be difficult, it reports that West Bengal has 5 mental health facilities.[8] Other country information indicates there are various Mental health services available in Kolkata – for example the Mental Health Foundation, Kolkata Partnering For Change, a service led organisation comprising a multidisciplinary team of professionals, aiming to provide Mental Health and Social Care services to those who are in need of care and support.[9] DFAT reports there are both private and public hospitals and maternal mortality has decreased in West Bengal. The government attributes improved health indicators to the increased penetration of health services and an increased number of hospitals across the country, improved sanitation and literacy.[10] There are also antenatal and obstetric services available.[11]

    [8] DFAT Country Information Report, India, 10 December 2020, p 16

    [9] Mental Health Foundation Kolkata, Mental Health Foundation, Kolkata | Partnering For Change (mhfkolkata.com), accessed 10 March 2021

    [10] DFAT Country Information Report, India, 10 December 2020, p 15

    [11] For example, AMRI Hospitals records that it has a Department of Obstetrics & Gynaecology across all units aim to provide the most comprehensive women’s healthcare service, Best Maternity Hospitals in Kolkata | Best Gynaecologists in Kolkata | AMRI Hospitals accessed 16 March 2021,

    CRITERIA FOR A PROTECTION VISA

11. 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.

12. 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.

13. 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 themselves 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).

14. 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.

15. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality

16. The applicant claims she is a national of India. She holds an Indian passport. Her languages and documentary evidence are consistent with this claim, and there is nothing to suggest that she has any different or additional nationality. The Tribunal therefore accepts that she is a national of India, and assesses her protection claims against India as the receiving country.

    Assessment of the claims and evidence

17. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages but, in the main, the applicant chose to give her evidence in English. She presented as fluent and articulate. She was encouraged by the Tribunal to use the interpreter whenever she wished and on a few occasions she sought the interpreter’s assistance. There were occasions however when she did not answer the question asked, but rather sought to focus on the past conflict between her and her former husband and repeat her fear of being killed by her former in-laws. The Tribunal explained to her on a number of occasions that it was important she answer its questions. Overall the Tribunal is satisfied the applicant had a fair opportunity to engage meaningfully in the hearing process and give her evidence about all the issues raised in her case.

18. The applicant has claimed that she was the victim of domestic violence in Australia and that her former in-laws have threatened to harm her and her family in India. She has claimed her former father-in-law has political connections and influence. She has recently raised new claims with the Tribunal, that she is now divorced, no longer in contact with her family in India and is pregnant. She has claimed that she cannot return to India as a divorced, single woman who no longer has male protection in India. She has claimed she fears her former father-in-law will arrange to have her killed and make it look like a car accident.  She has claimed she will suffer because her child will not be able to get a passport, or birth registration, or be enrolled in school and she will be discriminated against and gossiped about as a single mother.

19. For the following reasons the Tribunal has serious concerns about the reliability of the applicant’s evidence. Having considered all of her claims and evidence it is not satisfied she has been frank with the Tribunal regarding a number of important issues. For example with respect to the payment of her course fees she claims that she has been able to repay $32,000 to Mr [C] for the study she undertook in 2020, without any other financial support. This is despite claiming to have been unable to work in [Industry 1] for part of the year and to have struggled financially because of the impact of COVID19. The Tribunal is of the view the applicant has a significant source of income support that she is not disclosing. This raises concerns for the Tribunal that she may not have been frank about receiving support for her family, and about her relationship status.

20. The Tribunal also notes that when she was contacted in September 2020 about an in-person hearing the applicant responded advising that she was suffering from severe depression and insomnia and so visited [State 1] to stay at a friend’s place for a change in atmosphere and environment. She indicated that having spent a few months in [State 1] she thought she needed more time until she felt alright. She indicated she had [an accident] in [State 1] (which the Tribunal accepts on the basis of her medical evidence) and her health deteriorated. She indicated her “friend” in [State 1] was looking after her. Subsequently she provided medical evidence to the Tribunal from Dr [A] who advised she had reported in September a high level of distress such that she could not attend a hearing until early 2021. However the applicant then presented to the Tribunal evidence that she continued to study for her [Degree1 ] in semester 2 2020, and that she passed all five units studied and achieved a distinction in one of those units. She also told the Tribunal that she was working in [Industry 1] and had earned sufficient income to cover her daily living expenses and repay Mr [C] part of the $32,000 borrowed. The Tribunal also notes that in her oral evidence she stated she moved to [State 1] because she secured a position at [University 1], and she secured affordable accommodation and employment in [Industry 1]. She provided evidence of her various attempts in 2019 to enrol in other universities across Australia. She did not repeat at the hearing the claim that she went to [State 1] to stay with a friend because she was severely depressed and needed a change of environment. While the Tribunal accepts the applicant was prescribed sleeping medication in May 2020 and an antidepressant in September 2020, aroung the time the Tribunal contacted her, it is concerned the applicant embellished her psychological symptoms to avoid her Tribunal hearing. While these issues do not relate directly to her claims to fear harm in India, the inconsistencies and her lack of frankness raise concerns for the Tribunal about the overall reliability of her evidence and claims.

21. There are also numerous inconsistencies in the applicant’s evidence which cast doubt on the reliability of her evidence. The Tribunal gave her opportunities to comment on her inconsistencies, but it is not satisfied she has adequately explained why her evidence has varied in relation to important claims. For example in her written application the applicant claimed that when her father visited her at her in-laws house in India in March 2015, her father-in-law threatened him and pushed him out of the house and her father left without saying goodbye to her and she had to continue living in her in-laws’ house like a prisoner.  However she has subsequently admitted that she in fact stayed at her father’s place for some of March 2015 and that her father actually took her to the airport when she returned to Australia.

22. The Tribunal also notes that the applicant has given various explanations for why she sought to have the AVO withdrawn in November 2014. In her written application she stated she withdrew because of family pressure. She subsequently clarified that it was pressure from her own family. However in a written submission to the Tribunal she stated she was forced to withdraw the AVO by her former husband’s lawyer who told her to write to the magistrate seeking to have it withdrawn. She has also claimed her husband forced her to withdraw the AVO so that he had the police clearance required to get his visa. However she indicated to the Tribunal in her oral evidence that the AVO was withdrawn and she and her former husband were trying to reconcile. The Tribunal notes this is consistent with the wording of the written request to the Magistrate asking that the AVO be withdrawn to give her and her husband a chance to work on their relationship. This is consistent with her trip to India in March 2015, with her former husband, and her evidence that they were returning to India for the families to assist them to reconcile. The Tribunal accepts that while the applicant may have been influenced by family to seek to have the AVO withdrawn it is not satisfied the former husband’s lawyer forced her to seek to have it withdrawn.

23. The Tribunal notes that in the applicant’s written application she claimed that during their relationship her husband would stay away on his days off, deliberately, to cause her anxiety.  This claim was not repeated at the hearing. In fact the applicant told the Tribunal that she would stay away. She claimed she went missing on one occasion and appeared indignant that her former husband did not report her missing for one week. In the Grounds of the application set out for the ADVO, dated 29 September 2014, in which the applicant is the person of interest, the police recorded that the applicant had been reported as missing by her former husband. The Tribunal is of the view the applicant’s evidence on this issue demonstrates her willingness to change her claims to strengthen her position.

24. The applicant provided to the Department an email sent by the applicant’s former husband’s lawyer in October 2014. The Tribunal notes that the former husband’s lawyer was not acting for the applicant. The lawyer states in that email that she had a discussion with the applicant and the applicant said that she wanted a divorce straight away, and wanted to claim that it had not been a real marriage and that she had been living separately for the last 18 months. Her former husband’s lawyer recorded that she explained to the applicant that there needed to be a separation of at least 12 months prior to applying for a divorce in Australia. She recorded that the applicant stated she wanted a divorce now and she did not care about the visa implications as she would simply marry someone else to remain in Australia. The lawyer recorded she explained to the applicant that this was not proper and Immigration would look at this very carefully, to which the applicant responded that she would then seek to remain in Australia on a student visa. The lawyer recorded her view that the applicant did not seem to think that it was wrong to tell lies. It was unclear to the Tribunal why the applicant would have provided this information to the Department. She indicated the email was taken to her uncle’s workplace in Kolkata by her former husband’s father to drag her character down and mentally harass her. The Tribunal is of the view the information included in the email may raise concerns about the applicant’s credibility. However when the allegations made in the email were put to the applicant, she indicated that she could claim that she was separated from a husband because they had not had a physical relationship for over a year. She did not deny having proposed that the parties claim they had been separated for at least 12 months in October 2014. This was despite their having returned to India in March 2015 in an attempt to resolve their issues, suggesting at that stage they were still in a relationship. When asked why the lawyer would lie, she stated she is a defence lawyer who would do and say anything for money. The Tribunal is not satisfied the former husband’s lawyer, an officer of the court, would manufacture evidence for money. The Tribunal is of the view this is mere speculation on the applicant’s part.  While the Tribunal is not bound by the opinion of the former husband’s lawyer it is of the view the applicant’s willingness to claim that the parties had been separated for 12 months in October 2014 in order for her to apply for a divorce under Australian law does demonstrate her willingness to be somewhat lax with the facts. It is of the view this raises concerns about her credibility.

1. The Tribunal notes the applicant has claimed in her written submission to it that she last had contact with and support from her family in 2015. However in her oral evidence she indicated her father continued to support her until the end of 2016. The delegate recorded in the decision record, provided to the Tribunal by the applicant, that she was satisfied the applicant could return to India and be supported by her family. It was only after the delegate’s decision that the applicant has claimed that she no longer has contact with her family. The Tribunal questioned whether that was in fact the case. She claimed that her in-laws were stopping her parents having contact with her. The Tribunal asked why she cannot contact her parents in India and she claimed it would be very humiliating. This was despite their ongoing support after she separated from her husband in March 2015. The Tribunal questioned why her contacting her parents would cause them humiliation. The applicant claimed that her parents said if she contacted them the in-laws would harm them. The Tribunal has considered the applicant’s evidence on this issue but it is not satisfied the applicant no longer has contact with her parents in India. It does not accept that her parents, who had been supportive up until the end of 2016, would cease to have contact with her for fear of the in-laws harming them because it does not accept the in-laws would necessarily know that the applicant and her parents were maintaining contact. The Tribunal is of the view the applicant is now making this claim to embellish her claim that she will be a single woman in India without male protection. For the reasons discussed above, the Tribunal is also concerned that the applicant may be continuing to receive financial support from her parents. Accordingly the Tribunal is not satisfied that the applicant would be without support if she returned to India. It is not satisfied she has not had contact with her parents since late 2016. It is not satisfied her family will not support her if she returns to India. Nor is it satisfied her parents fear that the in-laws will harm them if they maintain contact with their daughter.

2. The applicant has claimed that she received messages from her in-laws that they would kill her. She also claims to have received similar threats from her former husband. However she has provided no other evidence to support these claims. The Tribunal notes form the country information that, while they occur, honour killings are rare in India. Given its serious concerns about the reliability of the applicant’s evidence, the Tribunal is of the view these claims have been manufactured.

3. The Tribunal notes that the evidence provided by the applicant to the Department from the police confirms that there was a history of conflict in the applicant’s relationship with her former husband. The Tribunal accepts that there was violence in the relationship. It notes both parties had AVOs made to protect them from each other. It notes that the applicant’s former husband was arrested in October 2014 but he was not charged because the police were not satisfied that he physically assaulted the applicant.  The police noted that, due to the conflicting versions and the lack of physical signs of assault or any other evidence, her former husband was not charged with assault and he was released. However the police sought the ADVO specifically with regard to the allegations of social isolation and psychological torment.

4. The Tribunal accepts that, having been in a relationship affected by conflict and violence, the applicant will have suffered some psychological and emotional trauma. It notes that she had 10 hours of counselling, pursuant to the Victim’s Rights and Support Act 2013, approved but she did not participate in this program because she was busy working. When the Tribunal questioned whether she needed the counselling given she did not take up the offer, she indicated she had to go to the police station all the time and she was not given permission to have time off work. She claimed was also being harassed by her former husband. The Tribunal is not satisfied the applicant’s attendance at the police station would have rendered her unable to attend the counselling sessions. Nor is it satisfied harassment by her former husband would have prevented her attending given there was an AVO in place protecting her. The applicant told the Tribunal she has had three or four counselling sessions with [a service] in [State 1]. However she has also indicated that she has been able to work and study on a full-time basis, as demonstrated by her results in semester 2 2020 despite her claims to have depression and insomnia. The Tribunal accepts the applicant has had some psychological concerns for which she has sought treatment from Dr [A] but it is not satisfied her symptoms are so severe that she will not be able to manage them in India. The Tribunal discussed with the applicant the availability of mental health services in India. She did not deny that any mental health condition she may suffer in the future could be managed in India. The Tribunal is satisfied that if the applicant returns to India in the foreseeable future any psychological condition she may suffer will be adequately managed by services available in India. It is not satisfied there is a real chance or a real risk she will suffer serious or significant harm because of her psychological condition if she returns to India in the foreseeable future.

5. The Tribunal accepts that the applicant separated from her former husband in March 2015. She has claimed that she is now divorced but she has not provided documentary evidence confirming the divorce. For the purposes of this decision, the Tribunal is prepared to accept that the applicant is now divorced and probably divorced at the end of 2016.

6. The applicant has claimed that her in-laws are politically influential and will kill her if she returns to India. She has claimed that her father-in-law, while not an elected politician himself, has strong political connections with [Government Official 1] of Kolkata. The only evidence she has provided to support her claims that her in-laws are politically connected and influential is a few photographs, said to be taken at her wedding, of her father-in-law and a politician. The Tribunal accepts that a politician may have attended her wedding in India. However it is not satisfied her father-in-law is politically influential, or that he has strong political connections in Kolkata, such that he will be able to harm her without repercussion, or arrange to have state protection denied. It finds the applicant has manufactured these claims to strengthen her claims to fear harm in India. It is not satisfied there is a real chance or a real risk she will suffer serious or significant harm because of her in-laws political connections or influence if she returns to India in the foreseeable future.

7. The applicant has claimed that she and her father went to the police in India in March 2015 but her husband was not arrested because of the family’s political influence. Given its concerns about her credibility and the reliability of her evidence, the Tribunal is not satisfied that the applicant sought police protection in March 2015. It is not satisfied that the applicant will not be able to rely on state protection if she returns to India, because her former in-laws have political influence or for any other reason.

8. The applicant has claimed that other family members have been harmed by her former in-laws. She referred to dowry issues and provided receipts for gold purchased in India in 2011, 2012 and 2013. She also provided evidence that in 2016 her grandfather, aged [age], was diagnosed with urinary tract problems, vascular dementia and psychosis and claimed this was associated with pressure from her in-laws. The Tribunal is not satisfied on the evidence before it that her grandfather’s medical conditions were in any way associated with conflict she and her family have had with her former husband and in-laws. It notes her grandfather was aged [age] when medical evidence was prepared. It is of the view it is not uncommon for people of that age to have various medical conditions such as those suffered by her grandfather. While it accepts the receipts for gold and medical evidence for her grandfather may be genuine, it finds the applicant’s claims that her family has suffered harm, and that she fears harm in India because of dowry issues have been manufactured. It is not satisfied there is a real chance or a real risk she will suffer serious or significant harm because of dowry issues if she returns to India in the foreseeable future.

9. Overall the Tribunal is satisfied the applicant was genuinely married to her former husband but that relationship was marred by conflict and violence. It accepts that in March 2015 the parties returned to India to seek the support of their families to resolve their issues but those attempts were not successful. The applicant returned to Australia [in] March 2015, separated from her husband. She divorced some time in late 2016. From 2015 she received financial support from her family in India. The Tribunal is of the view she has not been frank about whether she continues to receive support from her family. It is not satisfied she would be able to fund her tertiary studies in Australia, which she admits amounted to about $32,000 in 2020, and cover her daily living expenses on her income from working in [Industry 1], particularly considering she had a period of unemployment in 2020 because of COVID19 restrictions.

10. The applicant told the Tribunal she is now pregnant. She provided blood test results dated January 2021 and claimed her estimated due date is [date]. She has claimed this pregnancy was the result of a casual contact with a person she met in a pub. She claimed she does not know the identity or nationality of the person. The Tribunal is not satisfied the applicant has been frank about the relationship with, and knowledge of, the biological father. While it accepts such things happen, it has serious concerns about the applicant’s credibility and whether she is withholding information on this issue. It notes however that there is no evidence that the applicant is in a relationship with a person who will return with her to India if she returns in the foreseeable future.

11. The applicant has claimed she will suffer harm as a single parent in India. The applicant is not currently a single parent but she is due in [month]. The Tribunal has considered whether the applicant would suffer harm if she returns to India in relation to the pregnancy and the likelihood that she will soon become a mother. Having regard to country information about medical facilities in Kolkata, the Tribunal is satisfied there are antenatal and obstetric services available and her medical needs with respect to the pregnancy and birth will be met if she returns to India in the foreseeable future. The applicant acknowledged that she will be able to have the baby in India. The Tribunal has also considered her claims that she will be harmed because she will not be able to secure a passport for the child, register the birth or enrol the child in school. The Tribunal is not satisfied the applicant will suffer serious or significant harm for any of those reasons. She may be inconvenienced and face difficulties but it is not satisfied those challenges will reach the threshold of serious or significant harm. The applicant has also indicated she will have difficulty securing accommodation as she will be discriminated against. The Tribunal is not satisfied the applicant is not receiving ongoing support from her parents and it is not persuaded her parents would not support her and accommodate her if she returns to India and has the baby.

12. As discussed with the applicant at the hearing DFAT reports that there are about 73 million single women in India, including divorced and separated women and single mothers. If it is the case that her parents will not provide her with accommodation it notes there are also shelters for women with children. The Tribunal accepts the applicant may face challenges as a single mother. However it is not satisfied the applicant faces a real chance or a real risk of serious or significant harm if she returns to India in the foreseeable future as a divorced, single woman who is pregnant or a single mother.

13. The applicant told the Tribunal that she would love to go back to India but she wants to complete her [degree] and get her [registration]. She claimed that if she returns to India she would not get credit for the study she has undertaken so far. While it accepts that this will be disappointing for the applicant, the Tribunal is not satisfied that this disappointment or lack of opportunity would amount to serious or significant harm.

14. The applicant claims she is at risk of discrimination and being the subject of gossip if she returns to India. Having regard to DFAT’s country report the Tribunal accepts that women in India face discrimination in a range of areas, including autonomy and employment. It accepts that factors in the applicant’s case such as her marital status and single parenthood may exacerbate this. However it notes that the applicant comes from a family with financial resources and secure accommodation in [City 1], Kolkata. She has a [degree] in India and she also has employment experience. She has strong literacy skills in three languages, Bengali, Hindi and English. She has also completed various units of a [degree] and has demonstrated resourcefulness in securing accommodation, employment and placement in a university. Taking into account all of the applicant circumstances the Tribunal there is no real chance of the applicant facing discrimination amounting to persecution.

15. Given the Tribunal’s findings, it is satisfied there is no real chance of the applicant being subject to serious harm amounting to persecution, as a woman, a single woman, a single divorced woman, a single divorced woman who is pregnant, or as a single divorced woman who is also a mother, from her former in-laws or society at large.

16. The Tribunal has considered the applicant’s claims individually and cumulatively. It is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if she returns to India.

17. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

18. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.

19. The Tribunal takes into account that the applicant is a single, divorced woman who will be returning to India in the foreseeable future pregnant, or as a mother with a young baby, who may suffer some psychological conditions from time to time. Taking into account all of the applicant’s circumstances, as it has in relation to the refugee criterion, the Tribunal is not satisfied there are substantial grounds for believing there is a real risk of the applicant suffering significant harm.

20. The Tribunal therefore finds that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering (physical or mental) is intentionally inflicted on her, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of her life or the death penalty. In other words, the Tribunal finds no grounds to suggest she will be subject to significant harm, for any reason, if she returns to India.

21. Accordingly the Tribunal is 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: s.36(2)(aa).

22. 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

23. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Denise Connolly
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her 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; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …

    
    

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1617313 (Refugee) [2021] AATA 1389

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