1618045 (Refugee)

1618045 (Refugee) [2020] AATA 2226 (20 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1618045
COUNTRY OF REFERENCE:                   India
MEMBER:David McCulloch
DATE:20 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the first named applicant satisfies s.36(2)(a) of the Migration Act.
The Tribunal affirms the decision not to grant the second and third named applicants protection visas.

Statement made on 20 January 2020 at 10:17am
CATCHWORDS
REFUGEE – protection visa – India – member of a particular social group – inter-religious marriage – husband’s heavy drinking and domestic violence – separation and divorce – ex-husband’s protection application refused and refusal affirmed – applicant intimidated into relinquishing custody of children, who are now in home country with ex-husband and his family – no contact with children – fear of harm from ex-husband and his family, and from own family – would seek to make contact with children despite fear of harm – fear of discrimination, abuse and economic hardship – new partner and child – new partner’s medical condition – availability, quality and cost of treatment in home country – stigma and discrimination – applicant and child would be imputed to have medical condition also – mental health – decision under review remitted for first applicant, affirmed for second and third applicants
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 October 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 31 July 2015. The delegate refused to grant the visas.
The partner of the first named applicant, who she met in Australia, is [Mr A], an Indian citizen. He made an application for a protection visa on 2 February 2015. The delegate refused to grant the visa. A review was sought by the Tribunal (Tribunal reference 160403). That matter was allocated to the same Tribunal Member as is considering this application and is in the process of consideration. Mr [A] is HIV-positive and key claims are being made by him and the applicant on that basis. In relation to the applicant it is indicated she will be imputed as HIV-positive and suffer harm on that basis or suffer harm based on being a family member of an HIV-positive person. The applicant and Mr [A] have respective migration agents from the same organisation who submitted that the claims were inexorably linked.
The Tribunal determined to hold combined hearings of the application of both the applicant and Mr [A]. Both the applicant and Mr [A] agreed to this course of action.
The first named applicant (‘the applicant’) and Mr [A] appeared before the Tribunal in two combined hearings held on 25 November 2019 and 27 November 2019. Communication in the hearings was facilitated by the use of two interpreters, one in the Hindi language and the other in the Punjabi language.
Both the applicant and Mr [A] were represented by their respective registered migration agents, who were from [Lawyers]. The representatives attended both hearings, however with the applicant’s representative having to leave a short period before the end of the second Tribunal hearing due to another commitment.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the 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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, 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).
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.
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.
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include dependent children.
The Tribunal is satisfied on the evidence that the second named applicant (applicant daughter) and the third named applicant (applicant son) are the dependent children of the applicant and therefore both are members of the same family unit as the applicant. However, for the reasons discussed below they do meet the criteria for a protection visa.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Information Report – India, 17 October 2018. It is clear from submissions made on behalf of the applicant that the applicant/representative has access to this document.
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicant
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Second and third named applicants
So far as is relevant to this matter, s.36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.
It is clear from the claims by the applicant that the second and third named applicants returned to India in 2018. The applicant confirmed this in the hearings. It was indicated that these applicants were not seeking to maintain that eligibility for protection. It was acknowledged that they were not eligible.
The Tribunal is satisfied from the circumstances set out above that the second and third named applicants are not in Australia. Therefore, these applicants do not satisfy the requirements of s.36(2) and cannot be granted a protection visa.
History and claims
The applicants were granted [visitor] visas [in] December 2014, and arrived in Australia [in] February 2015. The applicant’s ex-husband, [Mr B] (as opposed to her current partner) lodged a protection visa application [in] February 2015, which included the applicant and the applicant daughter and the applicant son, who were not making their own claims for protection but seeking protection on the basis of being members of the same family unit as [Mr B]. [In] July 2015, the applicant withdrew herself, the applicant daughter, and the applicant son from the husband’s application for protection, and lodged their own application for protection.
Prior to coming to Australia, the applicant visited [Country 1] [in] March 2008. The applicant also visited [Country 2] [in] March 2008. The applicant visited [Country 3] from [May] 2008 until [November] 2008.
The following information is apparent from the application for protection forms in respect of the current application. The applicant was born on [date] in Delhi, National Capital Territory of Delhi, India. The applicant lists her ethnicity as Indian, and is a Sikh ([Caste]) who speaks, reads, and writes Hindi, can speak Punjabi, and reads and writes English. The applicant married [Mr B] [in] April 1998 and separated around [April] 2015 in Australia. The applicant’s mother is deceased, and her [sibling] and father live in India. The applicant lived in four addresses in Delhi from birth until coming to Australia. The applicant lived in [Country 3] from May 2008 until November 2008. The applicant completed high school at [Location 1], India in [year]. The applicant began studying a Bachelor of [Subject] at [a] University in [year], and withdrew in [year]. The applicant worked as [an occupation] in a [workplace] in Delhi from October 2014 until November 2014, and has otherwise been unemployed.
The applicant daughter was born on [date] in [Country 3]. The applicant daughter is a Hindu of Indian ethnicity, who speaks, reads, and writes Hindi and limited English. The applicant daughter lists no claims of her own.
The applicant son was born on [date] in Delhi, National Capital Territory of Delhi, India. At the time of the application, the applicant son could speak Hindi. The applicant son lists no claims of his own.
The applicant provided a statutory declaration dated 27 July 2015 setting out her claims for protection as follows (not corrected for spelling or grammar):
I fear that if I were to be forced to return to India, my two children and I would not be safe and would be seriously harmed.
My background
I was born in New Delhi, India on [date].
I am of Sikh religion. I speak Punjabi & Hindi.
I grew up in New Delhi.
I completed year 12 of school. I completed less than a year of a Bachelor of [Subject] degree at [a] University. I left university in [year] when my mother was sick in order to look after her. My mother died in 2014.
My father and my [sibling] are living in New Delhi. My father is roughly [number] years and does a small amount of work and lives in my [sibling]'s house. My [sibling] is [age] and has a [spouse] and no children.
I was married to [Mr B] [in] October 2007. [Mr B] is Hindu. I was allowed to marry him by my family because they believed his promises to provide a good future for me. I later found out that none of these promises had any basis as he was not settled or able to provide for us.
[Mr B] and I have recently separated since my arrival in Australia and we are no longer in contact.
[Mr B]] and I have two children. My daughter, [Child 1], is [age] years old. [Child 1] was born in [Country 2] while I was there as a temporary visitor. My son, [Child 2], is [age] years old and was born in India.
In India, I lived with [Mr B] and my two children in New Delhi. I was a housewife and did not work. I looked after the children and the house duties.
I did not have employment in India, except for a short period of [number] months when I worked as a [workplace] employee, but then my son fell ill and I gave up that job as there was no one to look after my children.
Relationship with [Mr B] in India
When [Mr B] and I first got married, we lived with [Mr B]'s mother, [Mr B]'s brother and his wife and one child in a shared house.
About two years ago, [Mr B] his mother and I moved to a smaller, rented house.
Shortly after marrying, I realized that [Mr B] had a serious drinking problem and soon life with him because a nightmare for me. I never had a dream of that sort of life but still I sacrificed for my kids so that their life doesn't get ruined.
Since we got married [Mr B] forced me into having sexual relations with him whenever he wanted — often four or five times a day. As a result, I got pregnant in a very short span of time after the marriage. He did not take my consent to have a baby and never listened to my thoughts or plans for the future.
I started feeling mentally sick as if I have been treated like a bonded laborer. His mother and his brother always used to abuse me and my parents for not giving them more financial support.
[Mr B] and his mother would always say negative things to me and call me names and they would blame me for our financial difficulties.
When [Mr B] got his [ visa] I was six months pregnant and I refused to travel along, but his mother forced me to travel as she wanted me to take care of his son in an unknown place. I gave birth to a baby girl in [Country 3]. Soon his drinking habits meant he was unable to manage his expenses on his own and he started torturing me to go back to India and putting a pressure on me to ask money from my father. When I asked my father for money, my father would usually give me a small amount to try and settle my problems. [Mr B] would take all the money my father gave to us. When I asked [Mr B] for money for food and other essential items, he refused.
When I came back to India with my [number] month old daughter I stayed with my parents because his mother refused to look after me and my daughter. And after two months [Mr B] also came back as he was unable to do anything there.
Again he repeatedly forced me to have sexual relations which him for his needs. He told me his goal was to have a baby boy. I got pregnant again and [Mr B] organized a sex determination test (which is illegal in India). He then forced me to abort a [number] month baby girl without taking my consent.
As I mentioned above, I have only worked for about [number] months in a call [workplace] job. When I worked in this job, [Mr B] would take the money I earned and he would not help with the children. When my son got sick, I had no one to help look after the children and I had to leave this job.
I wanted to separate from [Mr B] in India, but my father advised me against it as they are very strict to their rituals and very orthodox and warned me that the only circumstance a married women can only leave her husband's house is if she is dead. In our Sikh community people don't accept it and see it very disgraceful for the family. My father is well-known and respected in our community so it would have been very shameful for me to leave the marriage. It is also impossible for a woman with children to support herself on her own in India. I did not consider that I was allowed to make the decision to separate from [Mr B] for myself.
A few times when I left [Mr B], I went to my mum's sister's house in [Location 2]. When I went there I would stay for few days with the children. I could only ever stay with my aunty on a temporary basis as she has her own family, including a daughter-in-law living with her and she could not support me and my children.
On several occasions I left the house [Mr B] and I lived in to go stay with my dad at my [sibling]'s house. [Mr B] would then come, and he would talk to my father and I would be told by both my father and [Mr B] to go back. Every time my father would advise [Mr B] not to drink and would ask him to look after the family and [Mr B] would then assure my dad that he would. But every time, a day or two after I returned, [Mr B] would start drinking again and abusing me again.
My [sibling] and I do not get along and [s/he] does not know that my father has provided some money to me to support me. I could not stay with the children with my [sibling] for too long as [s/he] has [her/his] own family which [s/he] has to look after and only earns a small income.
[Mr B]'s departure from India
In December 2014, [Mr B] and I applied for tourist visas for Australia. [Mr B] said he would go first to get settled and that I could come with the children afterwards.
[Mr B] arranged to travel to Australia on his own. He arrived in January 2015.
I continued living at our home with our two children, but we had very little money so life was difficult. [Mr B] did not send any money to help us.
Leaving India
In early January 2015, I sold my remaining jewellery that my father had given me and use these proceeds to buy the plane tickets to Australia.
[Mr B] did not give me anything for the tickets.
I made arrangements for the children and me to leave India as we had no way to support ourselves and it was not safe for me or the children to stay by ourselves with no one to support us. Even though I was not safe or happy in the marriage, I believed the situation might be improved in Australia and hoped for a better future.
I arranged to cancel the rental agreement for the house that I had lived in with [Mr B] and the children. I put these belongings in a rented storage room. I understand that after I left India, as my father could not afford to keep paying the rent for the storage room, he sold the belongings.
Sometime at the start of February, I left the house [Mr B] and I had rented and took my children to my [sibling]'s place. My [sibling] lives with [her/his spouse] and my father. My father provided support to me and my children including a small amount of money, which he did not tell my [sibling] about. My [sibling] did not want to support me and we are not on good terms.
My father gave me [amount] rupees to take with me to bring to Australia so that my children and I could get by. I do not have access to any other funds.
I stayed at my [sibling]'s place with my children for about a week.
I arrived in Australia [in] February 2015 with my two children.
Relationship with [Mr B] since arrival in Australia
[Mr B] had stayed in [Suburb 1] in a hostel room with another Indian man when he first arrived in Australia on his own.
When I arrived in Australia with the children, [Mr B] arranged for the children and me to move with him to a one room apartment in [Suburb 2]. [Mr B] paid the rent for the apartment in [Suburb 2] with the [amount] rupees I had been given by my father.
I continued to live with [Mr B] from February until late April with the children. I lived together with [Mr B] in [Suburb 2] for a few weeks, and then we lived in [Suburb 3] for a few weeks.
From the very first day when I arrived in Australia, I experienced troubles with [Mr B] and I got very depressed.
[Mr B] could not manage expenses and was drinking again. He pressured me to ask my father for more money. [Mr B] threatened that if I did not get money from my father, I would have to go back to India with the children and no one will look after them.
I told [Mr B] that I would not ask my father to send me any more money because I have been doing that for so many years and that it is [Mr B]'s responsibility and he needed to sort it out as my father in no good position to support me anymore.
Although [Mr B] had started working, he did not provide any support to me or the children and would not provide any money or groceries. On one occasion, the children and I went without any groceries for a couple of weeks. [Mr B] continued, as he had in India, drinking and getting drunk on a daily basis.
[Mr B] did not give me and the children any money or any support. [Mr B] said it was good that he does not have to support me. If I tried to give the children anything, even something small, [Mr B] would scold them.
[Mr B] also started forcing me to have sexual relations again because he wanted to get me pregnant with another baby. When I refused his advances, he hit me twice.
After a couple of months of living with [Mr B] in Australia, it got to the point where the children and I were so lacking in food and were getting desperate. I rang the [Organisation 1] and said I needed help. [Organisation 1] helped me move with the children to a boarding house in late April or early May.
New relationship since arriving in Australia
I met another man who was friends with [Mr B]. I found him to be a responsible guy and told him about my situation.
He really supported me morally. Slowly we started liking each other.
One day I had the courage to tell [Mr B] that I wanted to separate from him.
When I Informed [Mr B] I had become close with this man. He forcibly had sex with me against my will and treated me very badly like a slave.
[Mr B] also called my father in my presence and told my father calling me a bitch; and abused my father and told him I had started a relationship with another man.
I called my father a few days after [Mr B] called him and told him I was living separately from [Mr B]. My father advised me to end the other relationship and go back with [Mr B].
My father threatened me that if you come back we will put you and your kids to death to send a message to the entire Sikh community that we don't believe in living a disgraceful life. I told him that things had crossed the limit and asked him not to force me to get back with him again. My father told me he did not want to accept this new man in my life and he did not want to know me.
[Mr B] threatened that he will get me and and my new partner killed if we continue this relationship. [Mr B] told me that if I was in India, he could have beaten me to death.
I no longer have any contact with [Mr B] and he does not provide and support to me or my two children.
Application submitted by [Mr B]
I understand that [Mr B] lodged a Protection visa application that also lists me and my two children as applicants.
Although I signed the application form, I had no other involvement in filling out the visa application form. I do not know if [Mr B] has made any statement, submitted any documents or attended any interviews in relation to this application.
I asked [Mr B] for a copy of the application, but he said he does not have a copy.
As I am no longer in contact with [Mr B], I do not know what the status of this application is.
I am lodging a separate Protection visa application for myself and my two children. I am seeking a Protection visa because of the breakdown of my relationship with [Mr B], because I am afraid that he may harm me and my children and because now, as a single woman returning to India, I would face a serious risk of harm if I were forced to return to India.
What I fear would happen if I was forced to return to India
I fear that I will be killed by [Mr B] and his family. [Mr B] has threatened that if I go back to India, he could get me killed. Being a Sikh, my father holds a powerful position in the Sikh community and they have very powerful political contacts and as I have mentioned earlier that they are very orthodox and now as they know about my current relationship they have threatened me and my friend to death.
[Mr B]'s family in New Delhi are in contact with [Mr B], and his mother and brother have threatened to create a problem for me as I am separated from [Mr B]. [Mr B] 's brother has some connections with gangs and I fear he will use these connections to inflict harm on me and my kids.
Fear of being a separated Sikh woman in India
I fear that if I was forced to return to India I would also face significant economic hardship and neither I nor my two children would have anywhere to live or access to any basic services.
I have no capacity to obtain employment as I have no one to look after my children and no access to funds or resources to send them to childcare or school.
If I was forced to return to India I would be a single Sikh woman, separated from my husband and India is a dangerous and unsafe place for single woman. I do not want to reconcile with [Mr B] so I would have to look after my two children by myself.
In India, people disapprove of women living without their husbands and this would cause problems for me and my children in India. I fear that me and my children would be discriminated against, abused, either verbally or physically, or raped.
There is no where I can get effective help or protection.
My father will not support me or my children as I have left my husband and this is not acceptable to him.
I have no other family members throughout India who could support me and my children. Although I have stayed with my aunt and my [sibling] in the past with my children, I always understood that I could not stay for more than a few days.
No one in [Mr B]'s family has provided any support to me or the children and neither the children nor I could access any support from them.

Following the second Tribunal hearing, the applicant provided a further statutory declaration dated 4 December 2019 which provided as follows (not corrected for spelling or grammar):
Mistake in Previous Statement
As I stated in my protection visa interview at the delegate and my Tribunal hearing, there is one incorrect section of my statutory declaration dated 15 July 2015. This section makes several references to a relationship with another man who was known to my ex-husband, [Mr B]. I have not had a relationship other than that with [Mr B] and my current relationship with [Mr A].
[Mr B] did call my father to tell him that I had started a relationship with another man, however, this was not the case. [Mr B] intentionally misinformed my father to escalate the situation and cause my father to be angry at me.
I believe the mistake in my previous statutory declaration is due to a misunderstanding with the lawyer who helped me apply for my protection visa. I had 3 or 4 short appointments with her, some of which were by phone. Most of the information which was used to draft my statement was given through our telephone appointments.
On 27 July 2015, when I had a face to face appointment, I was asked to read the statement. The lawyer did not go through it with me. Due to English not being my strongest language, and the whole process being very rushed due to time pressure to lodge the application, I did not notice the incorrect section. I signed it not knowing that part of it was wrong.
Contact with [Child 1] and [Child 2]
If I am forced to return to India, despite fearing harm from [Mr B] and his family, I would attempt to contact my children. I do not know their exact address and I do not know which school they attend, but I would try to find their home, as I know that they are living in [Location 3].
I would not make an attempt to obtain access rights or take any formal steps to be able to visit them, as I do not have the money to pay for a lawyer.
I would try to see [Child 1] and [Child 2] because I am their mother. I could not bear to be in the same country as them and not try to meet them. I know that this would threaten my safety because [Mr B] has a lot of relatives in the area, and they would tell him if they saw me.
Submissions
A submission dated 21 November 2019 was provided on behalf of the applicant.
The submission repeats and provides some expansion of factual claims made by the applicant concerning her ex-husband, [Mr B], being a divorced woman in India, and threats from her family, and her fear of harm on those bases. It refers to the applicant as a Sikh woman who withdrew from university due to family commitments. In 2007, the applicant married [Mr B] and had two children together.
The applicant’s husband was a heavy drinker who verbally and physically abused the applicant, and raped her multiple times. The applicant was forced to abort a child, and both children were conceived during rape. The applicant did not leave her husband due to pressure from her father, as that would bring shame and disgrace to her family. The applicant attempted to leave several times, but returned due to familial, religious, and cultural pressure.
The applicant’s husband went to Australia in 2015. The applicant did not feel safe alone in India with her children, and sold her jewellery to travel to Australia. The applicant’s husband sexually abused her and beat her, and they faced financial pressure. The applicant became depressed, and is traumatised from the relationship. In around April or May 2015, the applicant received help from the [Organisation 1] and moved into a boarding house with the two children. The husband sent death threats, and her father threatened to kill her and her children as a message to the Sikh community.
The applicant applied for protection with her children as dependants. The applicant refers to meeting her current partner [Mr A] in the applicant’s protection visa application. Although meeting in around July 2015, the applicant and [Mr A] did not form a romantic relationship until early 2017. In March 2017, the applicant divorced her husband. The applicant and Mr [A] had a child in March 2018. [Mr A] was diagnosed with HIV in August 2017, and this has changed the nature of the applicant’s fears of returning to India. Their claims are inextricably linked.
In early 2018 when pregnant with the third child, the applicant received calls from her ex-husband threatening her and telling her to give up custody of their two children. The applicant gave in out of fear for her life and of her unborn child, and has not been in contact with her ex-husband or her other two children, and believes her ex-husband has remained in Australia and the children live in India with his mother.
In addition to her claims as a divorced woman, the applicant now has fears of returning to India based on her partner’s HIV status and the stigma and discrimination surrounding HIV that pervades every aspect of society in India, and fears for her [child] as the [child] of an HIV-positive man and of a divorced woman. The applicant fears harm from family of her husband who will consider the applicant will seek contact with the children. The applicant also fears for her own mental health.
The submission outlines the applicant’s fears of harm as follows:
·     ‘[The applicant] fears that [Mr A] will not be able to access appropriate/consistent medical treatment for his HIV, due to stigma, discrimination and the failures of the healthcare system in India. This will result in the deterioration of his health and his eventual death. As [Mr A] is currently the sole financial provider for the family unit, we submit that this would amount to significant economic hardship, threatening [the applicant] and [Child 3]’s capacity to subsist.’
·     ‘Any treatment that may be available to [Mr A] for his HIV will need to be accessed through a clinic. [The applicant] fears that medical staff in India will not respect patient confidentiality and will spread their knowledge of [Mr A]’s condition throughout society. [The applicant] fears that it will be impossible to keep [Mr A]’s condition private knowledge, and the stigma and discrimination they will face as a family unit will be severe. This stigma and discrimination will manifest as reduced access to basic services, threatening the family unit’s capacity to subsist.’
·     ‘[The applicant] fears that due to either the deterioration of [Mr A]’s physical health (as a result ofaccess to medication) or HIV discrimination, [Mr A] will not be able to secure employment in India, leading to significant economic hardship that would threaten the family unit’s capacity to subsist.’
·     ‘[The applicant] fears that as a family member of a PLHIV [person living with HIV] in India, she will be assumed to have HIV through her relationship with [Mr A]. Although she is not currently well enough to work, she intends to work in future, but if forced to return to India, she fears that she would not be able to secure employment to support the family, due to discrimination against her based on the assumption that she is HIV-positive. We submit that this amounts to denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.’
·     ‘[The applicant] fears that she, [Child 3] and [Mr A] will suffer from social isolation and a lack of support, as stigma and discrimination against PLHIV and family members of PLHIV perpetrate all aspects of society, and they will be alienated by family, friends and other members of the community. Both [the applicant]’s and [Mr A]’s families in India have already ceased contact with the family unit. One of the major reasons for this is [Mr A]’s HIV status.’
·     ‘[The applicant] fears that due to being a family member of a PLHIV in India, and the assumption society will make that [Child 3] is HIV positive, [Child 3] will suffer from limited educational, social and development opportunities.’
·     ‘[The applicant]r fears that if she is forced to return to India, her ex-husband, [Mr B], will understand this to be an attempt by her to get in contact with [Child 1] and [Child 2], and he will utilise his contacts in India to have [the applicant] physically harmed or killed. [Mr B]has a history of being abusive towards her and has previously threatened to kill her if she tries to contact their children, constituting a threat to her life, or significant physical ill-treatment.’
·     ‘[The applicant] fears a threat to her life and significant physical ill-treatment at the hands of her father, as he holds Sikh beliefs including that she is a disgrace to the family because she is:
-a divorced Sikh woman;
-a woman who has started another relationship outside of her marriage; and
-a woman who has had a child outside of her marriage.’
The submission provides background information on HIV. The recognised course of treatment is antiretroviral therapy (ART). This will most commonly involve multiple regimes moving from first, second and third line pharmaceuticals. It is essential that sufferers undergo regular CD4 and viral load tests. Treatment failure occurs where drug resistance develops. This is detected by a fall in a patient’s CD4 count. At this point it is necessary to change the regime. Adherence to ART is essential.
Where there is appropriate ART and monitoring of disease progression there is a significantly improved prognosis. However, where there is a not at least a 95% adherence to treatment the chances of the patient dying from an HIV/AIDS related illness are significantly increased and life expectancy reduced.
A letter from [Mr A]’s doctor treating his HIV dated [November] 2019 is cited. It confirms that [Mr A] was diagnosed with HIV in August 2017. It refers to the course of treatment being prescribed to [Mr A]. It indicates that [Mr A] has demonstrated and maintained a good clinical response to the treatment. With respect to his HIV infection he has maintained an undetectable viral load and a CD4 count consistently in the normal range. He has a good prognosis and would be expected to live a healthy life provided he is able to take his medications regularly. If he does not, his community and health would significantly deteriorate and he may get opportunistic infections and even malignancies. It is reported that [Mr A] has indicated to the doctor that he may not be able to access adequate treatment in India.
The submission refers to the applicant’s dependence and financial reliance on [Mr A], and that his potential lack of employment or death would significantly affect the applicant.
The submission cites information from UNAIDS in 2017 that there were 2.1 million people living with HIV in India, making it the third largest HIV epidemic in the world. Data shows that only 56% of adults living with HIV were taking necessary antiretroviral treatment to maintain their health. According to Avert, one reason why treatment levels in India are so low is difficulty accessing clinics. It is submitted that given the vast percentage of sufferers in India that are not accessing treatment, there is a real chance that [Mr A] may fall into this 44% and fail to obtain treatment in India.
Submissions are made and independent information cited concerning HIV-related stigma and discrimination. It is submitted that the stigma in India would be greater than in many other countries. It is submitted that stigma pervades all aspects of the way of life for HIV sufferers, including employment and healthcare.
Reference is made to the applicant’s family being aware of [Mr A]’s HIV status, and that they do not speak to her based on this and the shame of her inter-faith relationship and marital breakdown. Submissions are made that the applicant and her [child] would be presumed to be HIV-positive given [Mr A]’s status, and therefore would also face discrimination.
Indian legislation of 2017 is referred to, which criminalised discrimination against HIV sufferers in all areas, including employment, healthcare, education services, public facilities and property rights. It is submitted that the fact this legislation was only introduced in 2017 demonstrates how far behind India’s response to HIV is, globally. It is submitted that progress will be very gradual.
It is submitted that the denial of services to [Mr A] such as healthcare and employment will threaten his capacity to subsist. Denial of employment will further amount to a denial of capacity to earn a livelihood threatening his capacity to subsist. [Mr A] and his family will be ostracised and suffer psychological as well as physical effects.
More detailed submissions are made on the denial of access to healthcare and medication as well as employment. A UNAIDS report is cited in respect of discrimination in healthcare. Specific discrimination in healthcare services in India is referred to from research. Avert reports that stigma and discrimination are very common within the healthcare sector in India. Other research is cited as referring to discrimination in healthcare in India, as well as the social stigma that attaches to HIV sufferers. A report is cited in support of the position that although the Indian government has put in place policies to ensure aid sufferers were provided with suitable healthcare facilities, in reality this is not the case.
A report is submitted as indicating that the requirement of the Indian government to introduce mandatory biometrics could lead to many being denied essential services because they would fear that their identities would be disclosed.
It is indicated that India does not have a universal healthcare system and the majority of health care is provided through the private sector. As at 2010 only 25% of the Indian population had health insurance. Due to patients paying out-of-pocket for healthcare, catastrophic healthcare expenditure (CHE) has become a common occurrence in India. This is where healthcare costs threaten the household capacity to maintain a basic standard of living. It is submitted that [Mr A]’s family are likely to experience CHE due to [Mr A]’s HIV affecting both [Mr A] and his partner’s ability to obtain work, and this will constitute severe economic hardship, threatening their capacity to subsist.
An article is referred to as indicating that ART has improved significantly over the last two decades in India, however limitations remain in relation to many people living with HIV having access to clinics. This article also indicates that the provision of ART services at private centres and NGOs causes concerns that drugs may not be given according to a ‘structured’ plan.
It is submitted that the greatest issue in providing treatment is cost. The costs of regular follow-up are usually higher than the cost of specific medication and treatment. This leads to patients regularly missing follow-ups, resulting in increased drug resistance making treatment ineffectual. The cost of first-line ART is Rs.3000 (US$50) for a one month supply. One in three people are living on less than US$1.25 a day. The cost of second-line medications can be five-day times that of the first-line drugs. This creates difficulties for patients failing the first-line regimes.
Lack of insurance exacerbates the problem. The majority of Indians pay out of their own pocket.
Submissions are made as to the denial of the opportunity of [Mr A] to earn a livelihood and support himself and his family. An International Labour Organisation report is cited as indicating that HIV/AIDS is affecting fundamental rights at work, particularly with respect to discrimination and stigmatisation of workers. These fears are submitted as being confirmed by India’s Ministry of Labour and Employment.
US, Department of State reports are cited as indicating lapses in implementing laws preventing discrimination against individuals with HIV/AIDS. It is submitted that there is a high chance that any employment that [Mr A] may be able to access in the Indian workforce will be in the informal sector. According to country information, this employment would not be protected by antidiscrimination legislation.
A prior Tribunal decision is referred to in which the Tribunal accepted that there was a real chance of an Indian national facing a real chance of serious harm due to suffering stigma and discrimination in the wider community in accessing healthcare, employment and accommodation based on his HIV status. His estrangement from family would further contribute to a denial of subsistence. It was accepted that the applicant in this case faced a real chance of significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, threatening his capacity to subsist because he was HIV-positive and therefore a member of the particular social group of individuals living with HIV in India.
Submissions are made on the basis of women in India. The 2018 DFAT report on India is cited in relation to discrimination and violence against women. Submissions are made that the applicant’s ex-husband will attempt to have her killed if she returned to India, and she is only safe in Australia because of the police. A Human Rights Watch 2018 report on India is cited in relation to rampant sexual violence against women and the lack of effective state protection, as well as low-levels of reporting. A 2018 article on sexual violence in India is cited in relation to increasing rates of rape, molestation, and abuse, and that poor families and victims face humiliation at police stations and hospitals when attempting to pursue cases. The article references the statistics of rape and acid attacks, and an entrenched preference by parents for sons over daughters. Reference is made to a 2018 article in the Conversation stating that India is the most dangerous country for sexual violence against women. Reference is made to Georgetown Institute’s 2017 report ranking India as 131st of 153 countries for women’s inclusion and well-being. A 2018 UK Home Office country report on India is cited for evidence of widespread rape and sexual harassment, the stigma for victims from families and community, the growth of rape, inadequate legal protection, and a lack of support services for victims. Submissions are made that the applicant has suffered past harm as a woman from her husband, family, and her father. It is submitted that relocation would not remove the risk of serious harm given the extent of abuses against women.
Submissions are made on the basis of divorced Sikh women in India. It is submitted that the applicant’s father pressured her to remain in an abusive marriage due to his Sikh beliefs that women must not divorce, and that he has threatened to kill her as an example to the Sikh community. An undated Amnesty International report is cited regarding women facing discrimination, threats of rape and violence, and often at the hands of family members due to dowry deaths and honour killings A 2018 UK Home Office country report on India is cited in relation to honour killings, including that honour killings are motivated by a belief that the victim has dishonoured the family or community. The report states reasons for killings can vary from inter-caste marriages, breaching social norms, affairs, or refusing to follow dress codes. The report mentions that the usual perpetrators are family members acting with community support. The report references honour killings occurring in both rural and urban India, though they are more prevalent in rural areas and in northern India. The report mentions village councils ordering honour killings for objectionable marriages. A 2019 BBC article is cited in relation to the shame of being a divorced Sikh woman, and the non-acceptance of the community. A 2018 Al Jazeera article on honour crimes is cited in relation to the use of honour killings against women for breaking with societal norms and traditions, and against women who disobey their parents and exercise autonomy. The 2018 DFAT report is cited in relation to violence from inter-religious marriages. It is submitted that the applicant faces harm from her father due to leaving her husband, and entering a relationship with [Mr A] who is of a different faith and HIV-positive. The 2018 US State Department’s human rights report on India is cited in relation to a lack of accountability for misconduct and inadequate police and judicial resources.

Submissions are made on the basis of mental health in India. It is submitted that the applicant has suffered clinical depression, and while she is not currently seeking treatment, her condition would deteriorate should she return to India. It is submitted that the applicant would face severe psychological harm due to her fears and discrimination. It is submitted that the applicant is at greater risk than other PLHIV due to her history of trauma and mental health. The 2018 DFAT report on India is cited in relation to lack of access to mental health care, and stigma and discrimination faced by applicants. The report mentions that access to mental health care varies across the country, and is more limited in rural India. The report states that mental health programmes suffer from constraints and are a low priority, and that many critical drugs are unavailable. The 2018 US State Department’s human rights report on India is cited in relation to inadequate resources for mental health care and mental health institutions, and instances of women and girls with disabilities being forced into mental health hospitals. A 2018 Human Rights Watch article is cited in relation to India’s 2014 mental health police recognising abandonment and homelessness of people with intellectual disabilities or mental health needs due to the absence of available and affordable services, and that people in custodial institutions, especially women, face violation of their rights. A 2011 WHO report is cited in relation to the statistics of government expenditure on health and suicide rates. A 2014 academic article published in the Journal of Psychiatry is cited in relation to rights violations and neglect faced by people with mental illnesses, despite India’s mental health laws, and mentions reports of patients being chained together. The report also states that incidents occurring in private homes are often overlooked and underreported. It is submitted that the applicant is likely to experience worsening mental health if she returned to India, due to her fears of harm and discrimination as a family member of a PLHIV.
Interview, hearings, credibility, findings, and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of India and accordingly her claims will be assessed against India.
Interview
The Tribunal notes that the recording of the interview between the applicant and the delegate of the Minister cuts out after 30 minutes. The delegate in the decision notes that only part of the interview was able to be recorded. The delegate’s decision provides significant detail as to what transpired in the interview. The Tribunal takes the record of the delegate in relation to what occurred in the interview as probative as to what took place in the interview.
As noted below, one issue for the Tribunal is the denial of the applicant in the interview with the delegate that she had formed a new relationship in Australia despite that being made clear in the statutory declaration provided by the applicant as part of her application for review. The Tribunal notes that the portion of the recording of the interview that exists includes reference to the applicant telling the delegate that she is not in a relationship with anyone, but that a friend introduced the applicant to one of her former husband’s friends and they have to share everything together.
Hearings
The following evidence of relevance was provided in the first Tribunal hearing.
The applicant indicated that she had lived her whole life in India until coming to Australia in Delhi. The applicant indicated that she has four uncles who all live together with the applicant’s [sibling] and father. The applicant’s [sibling] has a [spouse] and child.
The applicant left high school at year 10 level because her mother was sick and she needed to care for her. The applicant studied and finished year 11 and 12 privately. The applicant then commenced but did not complete a Bachelor degree.
The applicant indicated that her ex-husband, [Mr B]’s, family lived about an hour away in Delhi from her own family.
The applicant gave evidence of her father holding positions in the local Sikh community. The applicant indicated that he was involved in the organisation of a key Sikh processional event and was on the committee for this event. The applicant indicated that her father was also involved with the Sikh community in the provision of free food. The applicant indicated that by stating that the applicant’s father was an ‘orthodox’ Sikh she meant that he had an old-fashioned mindset.
The applicant indicated that she first met [Mr B] when they were at school together. However, after the applicant left school there was a gap of many years before the next contact. She was next contacted by [Mr B] from [Country 4] proposing a marriage between him and the applicant. [Mr B]’s family came and spoke to the applicant’s family to seek to persuade them of the marriage. [Mr B]’s family indicated that [Mr B] was doing well in [Country 4]. However, the applicant indicated that her orthodox father would not accept the marriage. He did not like the look of [Mr B] from his photograph. However, the applicant’s father did eventually come around to agreeing to the marriage.
As a result, [Mr B] made arrangements to travel to India for the wedding. However, there became a hurdle when horoscopes for both the applicant and Vishal indicated that the relationship would not be a match. At this point the marriage was under threat. However, the applicant pleaded with her father to allow the marriage and he eventually agreed.
The applicant proceeded with the marriage on the basis that [Mr B] had permanent residency in [Country 4] and that this is where they would live. However, on their honeymoon, [Mr B] indicated to the applicant that he had been living in [Country 4] unlawfully. This upset the applicant considerably. She would have liked to have left [Mr B] but this was not possible for social reasons and the potential adverse reaction from her family. The applicant was not able to tell her family in relation to [Mr B] not having lawful status in [Country 4].
[Mr B] did not work much for the first six months of the marriage. He then gained some employment working in a [workplace] for an uncle.
The applicant gave evidence of abuse in the marriage, including sexual abuse consistent with her statutory declaration.
The applicant and [Mr B] travelled to [Country 1] and [Country 2]. This was as a means to provide a travel history which would facilitate obtaining a visa to a European Union country. As a result, a visa was obtained facilitating travel to [Country 3] where the applicant and [Mr B] travelled to in 2008. The applicant indicated that [Mr B] was very keen to make a life outside of India. The applicant herself was not as enthusiastic about this.
The applicant returned from [Country 3] about two months prior to her husband returning after he finished one job and was not able to get another.
The trip of the applicant and [Mr B] to Australia was in furtherance of [Mr B]’s desire to make a life outside of India.
The applicant indicated that trips to [Country 3] and to Australia had been funded by selling jewellery that had been part of the dowry for the marriage. The applicant also indicated that funds had been provided by her father.
The applicant indicated that she did not know or have connection with any individuals in Australia, including individuals who were from India. The applicant indicated that she was not aware that [Mr B] had any similar contacts.
The applicant indicated that she only remained living with [Mr B] until approximately April 2015. The applicant indicated that she was housed in a shelter when she left her husband for 15 days. Thereafter, accommodation for the applicant and the children was arranged by the [Organistion 2] in [Suburb 4].
The applicant indicated that in the housing shelter she met a woman who the applicant became friends with and this woman offered one night’s accommodation to the applicant before she went to live in [Suburb 4]. The applicant indicated that this person was the only friend she made up to this point in Australia.
The applicant indicated that she met [Mr A] because he too was attending the [Organisation 2]. The applicant had had no previous contact with [Mr A] and he was not a person who had been known to [Mr B] or anyone else known to the applicant.
The applicant indicated that she did not have any contact with [Mr B] from leaving him in April 2015 until 2018. This contact occurred because of a falling out between the applicant and the female friend who had offered her one night’s accommodation in 2015. There was a dispute over money that had been lent by the applicant and [Mr A] to this woman which had not been repaid. This woman contacted [Mr B] to tell him about the relationship with the applicant and [Mr A] and provided information that the applicant was pregnant to [Mr A]. She also advised [Mr B] that [Mr A] was HIV-positive.
As a result of this, [Mr B] made angry contact with the applicant. He instigated ‘mental torture’ towards the applicant. He sought to get the applicant to have an abortion of her child to [Mr A]. He intimidated the applicant into signing a document in front of a JP, which resulted in her relinquishing custody of her two children to [Mr B] and the two children travelling to India to live with [Mr B]’s parents. The applicant indicated that she acceded to this because of the threat of court proceedings otherwise.
The applicant indicated that she has not been able to speak with her children by telephone in the year and a half that they have been in India. The applicant was visibly upset in giving this evidence.
The applicant reiterated that she fears physical harm from family, particularly her father, because she has disgraced the family as a result of separating from [Mr B] and also their knowledge that [Mr A] is HIV-positive. The applicant indicated that she has not had contact with her own family since she separated from [Mr B].
The applicant has indicated that [Mr B] will have made it known to her own family as well as his family that [Mr A] is HIV-positive. This will cause them to also consider that the applicant herself and the child are HIV-positive.
In terms of the risk of harm from [Mr B] and his family, the applicant indicated that she had been threatened by members of [Mr B]’s extended family that if the applicant makes any attempts to seek to contact the two children, the applicant, [Mr A] and their child will be killed. The applicant referred to her husband’s father’s family being from the Punjab and that individuals from this area are mercenary and would not hesitate to inflict harm on the applicant, [Mr A] and the child, [Child 3].
The applicant indicated that she will seek to contact her two children from [Mr B] if she returns to India, despite the threats. The Tribunal put to the applicant that she was making the application for the protection visa to remain in Australia suggesting that she was not wishing to make efforts to return to India to see her children. In that context, the Tribunal put to the applicant that that could suggest that she would not make efforts to contact her children if she returned to India because she appeared to be sacrificing contact with the children in consideration of her own safety. In response, the applicant indicated that if she returned to India she would make attempts to see her children, albeit that she was seeking protection to stay in Australia.
There was discussion with the applicant in the hearing as to part of the statutory declaration dated 27 July 2015 that had been provided as part of the protection visa application. The Tribunal discussed with the applicant the section that was headed ‘New relationship since arriving in Australia’. The Tribunal noted that the nine paragraphs following this heading made multiple references to the applicant forming a relationship with another man in Australia who had been friends with [Mr B]. The Tribunal noted that the statutory declaration makes reference to the applicant’s own father threatening to kill the applicant and her children unless she ends the relationship. The declaration also makes reference to [Mr B] threatening to kill the applicant and [Mr A] if the relationship continues.
The applicant indicated that all of these indications in the statutory declaration are as a result of a misunderstanding between the applicant and her lawyer. The applicant indicates that the truth of the situation is that [Mr B] made up the fact that the applicant had formed a relationship with another person and falsely told that fact to the applicant’s family in India.
The applicant indicated that it was not true that she had genuinely entered into a relationship with another person at that time. As the more recent claims indicate, it is indicated that, despite meeting in 2015, a romantic relationship did not develop between the applicant and [Mr A] until 2017.
The Tribunal put to the applicant that it had great difficulty accepting that the detailed statements in the statutory declaration that she had signed (when she reads English) that she had entered into a relationship prior to 27 July 2015 with a friend of her husband, which was the cause of threats from her own family and from [Mr B], could possibly be as a result of confusion between the applicant and her lawyer.
The applicant maintained that this was the case and that she had not formed a relationship with another person when she signed this statutory declaration on 27 July 2015. The applicant indicated that there was one person who would sometimes come home with [Mr B] after they had been drinking, who she would talk to, but they definitely did not form a relationship.
[Mr A] provided the following evidence in the first Tribunal hearing.
[Mr A] indicated that he met the applicant when they were both attending the [Organisation 2] in 2015. Neither the applicant nor [Mr B] had previously been known to [Mr A], nor did [Mr A] have any prior connection to the applicant. They met only as a result of both attending the [Organisation 2] at the same time.
[Mr A] indicated that his hand written claims for protection in the application form for his protection visa were in his own handwriting. [Mr A] indicated that he had no assistance or support from any other person in completing the application.
The following is evidence given in the second Tribunal hearing.
The Tribunal explored with the applicant medical attention she has received in Australia for depression. The applicant indicated that she suffered depression following the birth of her child in Australia, which was compounded by her partner discovering his HIV status and the applicant having to give up her two children to her former husband.
The applicant indicated that she had been prescribed antidepressants, but these did not suit her and she does not take them. The applicant indicates that the symptoms of her depression are that she feels tired and can’t walk long distances. She also becomes hungry. The applicant indicated that she had counselling after the birth of her child for her depression. She is not currently undertaking counselling.
The Tribunal asked the applicant if she was able to function in life, particularly in terms of caring for her child. The applicant indicated that she was able to fulfil her responsibilities as a mother.
The Tribunal explored with the applicant what steps she is likely to take if returned to India to contact her two children in India. The applicant indicated that she does not specifically know where her children are living. It is likely that they are with her ex-husband’s parents. The applicant indicated that although she is fearful based on threats that have been made to her as to what would happen if she sought contact her children, she would nevertheless make attempts to see them.
The applicant indicated that the documents she signed in which she gave her ex-husband custody of her children did not contain any provisions allowing her access or contact. However, the applicant indicated that her ex-husband indicated that she could speak by telephone to her children. However, he has reneged on this promise.
The applicant indicates that she would very much like to be able to see the progress of her children such as through the [Social media] page of her mother-in-law. However, the applicant indicates that she has now been blocked from being able to access this page.
Assessment

100. The Tribunal has some credibility concerns that the original statutory declaration provided by the applicant setting out her claims indicated that she had formed a new relationship after arriving in Australia but that the applicant now claims that, at this early point in time, she had not formed such a relationship or had met [Mr A]. The Tribunal also has concerns that the claims made by [Mr B] for protection are similar to the claims made by [Mr A] and the wording of the respective applications uses similar incorrect grammar in one aspect of the claims. This could cause the Tribunal to take the view that [Mr A] and [Mr B] were known to each other.
101. Otherwise, the applicant gave her evidence in a manner and with detail that broadly convinced the Tribunal that she was recounting events from actual experience. The Tribunal is satisfied with the applicant’s account of an unhappy and violent relationship with [Mr B]. The Tribunal is satisfied that the applicant felt tricked into the marriage because of [Mr B]’s untruthful claim that he held [Country 4] residency. The Tribunal is satisfied with the truth that there was physical and sexual abuse in the marriage and pressure on the applicant to have her family provide money to [Mr B].
102. The Tribunal is satisfied that the applicant is from an Orthodox Sikh family who would be upset and feel stigmatised by the applicant divorcing [Mr B]. The Tribunal notes the very low divorce rates in India. The Tribunal is satisfied that, whether or not there was a prior relationship between [Mr B] and [Mr A], [Mr B] has learnt about the relationship and the pregnancy of the applicant to [Mr A]. The Tribunal is satisfied that [Mr B] was extremely upset about the relationship and pregnancy and urged the applicant to have an abortion. The Tribunal is satisfied that as a result of the applicant’s new relationship and her pregnancy, [Mr B] pressured the applicant to give up the second and third named applicants into the custody of [Mr B] who returned them to India to live with [Mr B]’s parents in India. The Tribunal accepts that in agreeing to do this, the applicant was promised by [Mr B] that she would be able to speak to her children but that she was subsequently denied any opportunity to do this. The Tribunal accepts the significant distress that this has created for the applicant. The Tribunal is satisfied that the applicant has been warned that she should not attempt to contact her children in India if she returns there and threatened with harm should she make such an attempt.

103. It is clear from corroborative evidence in [Mr A]’s protection visa application that [Mr A] is HIV-positive.
104. The Tribunal is satisfied that [Mr B] has been told by a former friend of the applicant’s that [Mr A] is HIV-positive. The Tribunal is satisfied that [Mr B] would have informed his own family in India, who the Tribunal finds have care of the second and third named applicants, of this fact. The Tribunal accepts that this would make it plausible that [Mr B] and his family in India would assume that the applicant herself has contracted HIV. The Tribunal accepts independent evidence as to the stigma and significant discrimination that attaches to those suffering or connected with HIV in India. The Tribunal considers that this makes plausible that [Mr B]’s family in India with the care of the children would react in a very negative and discriminatory way towards the applicant because of a belief that either she was HIV-positive or that her partner was HIV-positive. The Tribunal considers that the very negative attitude of [Mr B]’s family towards the applicant would be significantly compounded by the applicant leaving [Mr B] for another man and becoming pregnant and having a child with him, and giving up her former children.
105. The Tribunal is satisfied on the evidence that the fact of the applicant giving up her two children from her first marriage has been very emotionally difficult for her. The Tribunal considers that the applicant felt that she had no choice but to take this action. The Tribunal accepts that the emotional pain for the applicant has been compounded by her inability to make phone contact with her children despite the promise that she could have phone contact. This has been exacerbated by the applicant being blocked on [Social media] by [Mr B]’s family in India who would be likely to be posting pictures and activities of the applicant’s children in India.
106. The Tribunal accepts the evidence of the applicant that she would feel that she would have no choice if returned to India but to seek to make physical contact with her children in the care of [Mr B]’s family. Albeit that the applicant is seeking the protection visa in Australia which, if successful, means that she would not return to India, the Tribunal does not consider that this means that the applicant would not take steps to seek to contact her children if she had to return to India. This is because of complex human dynamics and motivation and the very powerful force of maternal love. Those factors persuade the Tribunal that the applicant would seek to make contact with her children in the care of her former husband’s family in the event that she was forced to return to India.
107. The fact of the applicant seeking to make physical contact with her children on return to India would cause an extremely tense and pressurised environment in the Tribunal’s view. This would be in the context of the applicant having been warned not to seek to make contact with her children combined with the extreme opprobrium that [Mr B]’s family are likely to direct towards the applicant for the combined reasons of her having left [Mr B], and marrying and having a child with another man who is HIV-positive. The Tribunal believes the applicant’s claims that she has been threatened with physical harm if she attempts to contact her children in India. The Tribunal accepts that there are members of [Mr B]’s extended family who may well be in a position to inflict serious harm on the applicant if she makes attempts to seek contact or access with her children.
108. In all of these circumstances, the Tribunal is satisfied that the applicant faces a real chance of serious harm on returning to India when she makes attempts to physically contact and access her children. The Tribunal considers that this serious harm would be cumulatively the real chance of significant physical harassment or ill treatment combined with severe negative discriminatory conduct and treatment.
109. The Tribunal considers that the serious harm would be for the reason of the applicant being a member of the particular social group of women who have been separated from their children and seeking contact and access with their children. The Tribunal considers that the persecution would be for the essential and significant reason of the applicant belonging to this particular social group. The Tribunal is satisfied that the persecution would involve systematic and discriminatory conduct.
110. While the applicant may live at a location in India apart from where her children are located, the Tribunal considers that the applicant will seek to make physical as well as non-physical forms of contact and access with her children from wherever she is located in India. The Tribunal considers that the risk of harm to the applicant will arise wherever she may be located in India. The Tribunal would therefore find that the real chance of persecution relates to all areas of India.
111. The Tribunal is satisfied that the applicant does not have a right to enter and reside in any third country.
112. In light of these findings, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act.
113. In light of these findings and assessment it is not necessary to consider making factual findings or assessing other grounds on which it is claimed that the applicant is owed protection.
114. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).
115. For reasons already outlined, the Tribunal is not satisfied that the second named applicant or the third named applicant meet relevant protection criteria.
DECISION
116. The Tribunal remits the matter for reconsideration with the direction that the first named applicant satisfies s.36(2)(a) of the Migration Act.
117. The Tribunal affirms the decision not to grant the second and third named applicants protection visas.
David McCulloch
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.
…

[2020] AATA 2226

20 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Natural Justice

Statutory Construction