1701479 (Refugee)

1701479 (Refugee) [2021] AATA 933 (16 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701479
COUNTRY OF REFERENCE:                   India
MEMBER:Hugh Sanderson
DATE:16 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 March 2021 at 3:37pm
CATCHWORDS

REFUGEE – Protection visa – India – family violence victim – particular social group – a divorced single woman living in rural India – significant inconsistencies in the claims – threats from her husband and his family–divorce in Australia not being recognised in India – delay in applying for a protection visa – credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5,36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 3 October 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant had a well-founded fear of persecution or that there was a risk she would suffer significant harm in India.
Background
The applicant was born in India and is currently [age] years old. She was married to [a named person]. They had a child together who died in [2013]. She and her husband first arrived in Australia in January 2010 holding a [Student] visa. She has been granted a series of student visas since then.
The applicant’s husband was charged with [an offence] in September 2010. He was convicted of this offence [in] January 2011. Her husband left Australia [in] February 2012.
The applicant has returned to India since then as follows:
·From [December] 2012 to [January] 2013 to spend time with her daughter and parents in India;
·From [December] 2013 to [January] 2014 at the time of the death of her daughter; and
·From [December] 2015 to [December] 2015 to attend her brother’s wedding.
The applicant’s last student visa expired on 19 September 2016. She applied for a further student visa on 22 September 2016, however, this application was deemed invalid as she did not hold a substantive visa at the time of the application. She then applied for the protection visa on 3 October 2016.
The applicant provided a statement in support of the application where she stated as follows:
I came to Australia in 2010 to study [and] I first completed my English foundation course because my English was weak and I needed to improve on my English to work in the [profession]. I started my [degree] in February of 2011 but I couldn't cope up and as a consequence failed my second semester. It was a hard situation for me but I had to give it up as I did not have sufficient funds to repeat the semester. I always had a fondness for [doing a specified task] and I [enjoyed doing it] back home in India when I lived with my parents. I therefore, decided to try [study in this field] as I successfully completed my [qualifications]in July of 2014. But what happened during this time in my personal life was an absolute horrid for me.
My husband [committed a crime], I am so grateful that he got caught in the act and was arrested and released on bail pending a trial. I had no inclination that he was such a disgusting person till the police showed up on my doorsteps and began asking me questions, they also confirmed to be that after interrogating him that he has previously done this to [another victim] as well. I was completely shocked and appalled to learn of all this. Then without telling anyone he simply disappeared and the next heard about him was that he is back in India. I have since separated from my husband and this was the reason he used to blame the whole ordeal on me. He changed the story around and somehow indicted me with the whole reason why he had come back. He blamed me saying that I gave the police false evidence and the police used this evidence to have him deported. His family is very spiteful of this and to my surprise and total dismay began to call me and made death threats. They blame me totally for what happened to their son and they are very angry that he has returned back to India and ruined his life and future.
The worst was still to come, my daughter was in their care and in [2013] she [passed away]. For a mother to have to go through the death of her child is so unbearable that I can’t put it all in words. I was angry with myself that I wasn't there with her. How could they just leave my child unsupervised and I decided to try and get to the bottom of this as I needed to know and punish the people responsible for this heinous act. But the whole situation was handled very quietly and no matter how much I tried to get results when I went back to India I could not. I was totally lost and I didn't know where to turn, my parents offered no support when I needed it. I then decided to return back to Australia and complete my education.
My brother got married in India in December 2015 in a very traditional way and I had to be in India at this auspicious time. I was dreading going back because my parents in law were still forcing me to come back and live with them, they were very threating all the time. When I went back they made my life a living hell, they put so much pressure on me to stay in India and live with my husband but I knew the true nature of my husband and didn't want anything to do with him. I did whatever I has to, to return back to Australia.
While I was in India, my close friends had revealed to me that my husband has not changed and [there are more cases lodged] against him. Even though they have gone to the police nothing has happened to him, he is still free to do it again. His family is very well connected politically and they squash all complains by paying off the police through their political connections. Please try and imagine how I must be feeling to be the wife of this monster, I cannot go back. I am not safe from this man and his family. The police will not or cannot protect me and I do want to risk my life by trusting them, please imagine how horrible my life will be if I go back and how much danger I will be in.
My husband and his family still call me and make death threats, I have since blocked their number but they keep calling from different numbers. I fear for my life and I cant reply on the police because I fear that his family paid of the police to cover their crimes. I have to proof but how can they leave a young child [unsupervised], if nothing they should be arrested for gross negligence causing grievous harm, but nothing happened to them at all. That's why I cannot go back and rely on the police.
As to my family I am not in touch with them any more and they have since moved to [City 1 in another country], I have no rights to stay in that country and as such cannot go and live with them. For all these reasons I am applying for protection visa in Australia. Please do consider my case. As proof I am also supplying the death certificate of my child and the newspaper article regarding the arrest of my husband.
The applicant was interviewed by an officer from the Department on 4 January 2017.
The delegate who considered the application noted the following:
·The applicant claimed the last threat that she had received from her husband was around February or March 2014 calling her on a private telephone number;
·The applicant then provided inconsistent information claiming that the last threat she received occurred in July 2014;
·These claims were inconsistent with the claims made in her protection visa application which claimed that her husband and his family were still calling her and making death threats in October 2016;
·Despite claiming that she was receiving threatening phone calls, the applicant did nothing to change her telephone number claiming that she could not do so because she had told the Department that was her phone number and could not change it;
·Despite claiming that the threats began in January 2014, the applicant was willing to return to India in December 2015 to attend her brother’s wedding in the same city where her husband’s family live;
·The applicant provided inconsistent information as to what happened to her in December 2015, claiming when interviewed that her husband and his family did not know she had returned to India and so nothing happened, while in the written statement she claimed that her parents-in-law made her life “a living hell” and put pressure on her to remain living with her husband when she was in India in December 2015;
·When the applicant was granted a Bridging visa on 28 September 2016 there was nothing on the Departmental records to indicate that the applicant had raised any concerns about having to return to India;
·When the applicant applied for her student visas on 17 November 2015 and 22 September 2016, she stated that she planned to live in Australia until the completion of the study and intended to return to India or move to [City 1 in another country] where her parents were working;
·The applicant claimed that she only made these claims because the agent told her to do so;
·Despite claiming to first fear returning to India in January 2014 the applicant did not apply for the protection visa until she had exhausted all attempts to be able to remain in Australia;
In light of these issues, the delegate was not satisfied that the applicant faced any persecution or a real risk of significant harm if the applicant returned to India. The delegate was not satisfied the applicant was a person in respect of whom Australia has protection obligations as outlined in s.36(2) and refused the application.
Information to the Tribunal
The applicant provided a statement where she made the following claims:
·The applicant had suffered family violence soon after marrying her husband;
·The applicant’s husband’s family wanted to have her abort the pregnancy of her daughter after six months when they “found out using a covert way (she) was carrying a girl” but she refused to do so;
·The applicant complained to the police about suffering family violence, but the police called her father-in-law who went to the police and took her home and beat her up again;
·After the applicant’s husband left Australia in 2012, the applicant remained living in Australia with her brother-in-law as he had taken her passport and her husband’s family was planning that when she got permanent residence her husband would be able to return to Australia;
·The applicant’s father-in-law and sister-in-law visited Australia and threatened the applicant for asking for a divorce from her husband, saying they would kill her and cut her up into pieces and bury her in the backyard because nobody would miss her in Australia;
·In 2012 the applicant moved out of her brother-in-law’s home because she was on the receiving end of advances from him and she moved to live with her brother;
·[In] 2013 the applicant’s daughter died [in] the home of her in-laws and when the applicant returned to India and tried to lodge a complaint against her in-laws family for the death of her daughter, the police refused to do anything;
·The applicant was made to withdraw the complaint and apologise to her in-laws as the applicant’s own parents were concerned that if she did not do this her in-laws would kill her;
·During that visit, the applicant was forced to return to live with her husband in his parents’ house and she was raped by her husband;
·The applicant managed to leave India without her in-laws knowing with the help of her brother where she then applied for a further student visa;
·The applicant was sponsored for the student visa by her brother-in-law, however, as he was not a blood relative, she then changed the sponsorship to her parents;
·The applicant returned to India [in] December 2015 to attend her brother’s wedding but she did not tell her parents as they knew her parents-in-law would create a scene if she returned;
·After attending the wedding, the applicant then went to Delhi [in] December 2015 before returning to Australia;
·The applicant’s husband came with five other male members of the family to take her back [in] December and they threatened her parents and fought with her brother saying that the applicant was their property;
·The applicant’s husband kept calling her from a private number and threatened her never to leave as he thought she was his ticket to Australia and said that he could hire henchmen in India to “finish her off”;
·The applicant applied for a divorce in October 2017 and arranged for her parents to get her husband’s signature for the divorce;
·The husband signed the divorce documents after the applicant’s father said that she wouldn’t seek any property settlement, but his family still threatened the applicant by saying to her family that they would sort her out if she returned to India;
·The applicant continued to get calls from private numbers and receive threats but could not block private numbers as she did not want to fail to receive telephone calls from immigration;
·In around 2018 the applicant stopped receiving telephone calls from her husband and his family;
·The applicant’s father, who has returned to live in India, has received threats against her from common relatives of her husband’s family.
The applicant provided a report from Dr [A] in respect of the applicant’s mental health and various medical reports as to [an] injury the applicant suffered and for which she was receiving workers’ compensation. The applicant’s agent made submissions in support of the application including making the following claims:
·The applicant’s particular social group is a divorced single woman living in rural India;
·The applicant only applied for a protection visa when she became aware of the fact that she could do so;
·The applicant had a lack of support, protection and care from her parents;
·It was only at the suggestion of the agent that the applicant has sought counselling services;
·The applicant’s profile is of somebody who has suffered family violence committed by her husband and his family without any support from her own family or the police or any other authorities in India;
·The applicant’s father-in-law would misbehave with the applicant by trying to touch her inappropriately and after her husband fled Australia in 2012, her brother-in-law started to misbehave with the applicant at home when his wife was away;
·The applicant was forced to apply for a student visa to travel to Australia to enable her husband to leave India due to his criminal offences bringing his family into disrepute in India;
·The death of the applicant’s child in 2013 lead to mental health issues and problems of concentration leading to inconsistencies in her claims;
·There is a real threat that the visa applicant will be killed by her husband if she returns to India;
·There is no effective protection of women in India from family violence;
·The applicant would not get the protection of her parents who have repeatedly told her that she has brought the family great dishonour by divorcing her husband; and
·Relocation in India would be difficult as a single woman.
The applicant appeared before the Tribunal on 20 January 2021 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented by her migration agent who attended the hearing.
The applicant said that when she arrived in Australia in 2010 with her husband they lived with her husband’s brother, his wife and daughter, two brothers of her brother-in-law’s wife and one of their wives. She said that it was only a three-bedroom house and it was quite crowded. She said that she lived there until June 2012 when her brother arrived in Australia and she then went to live with her brother in a house he rented. She said that she could not leave her brother-in-law’s house before then because she had no other options.
The applicant claimed her brother-in-law would check up on her so that her husband’s family would know what she was doing. She said that she did not have a good relationship with her brother-in-law. The Tribunal asked that if she had a falling out with her husband’s family why she would be asking her brother-in-law to sponsor her and provide financial information to support her student visa. The applicant said that she had no option at that time as she was still in contact with her husband’s family because of her daughter and her brother-in-law had sponsored her before. She said that she had no knowledge of visas and her brother-in-law had looked after the student visa for her.
The applicant said that her relationship with her brother-in-law was not that bad. She said that he looked after her student visa application because her husband was connected to it. The Tribunal asked the applicant why she had her brother-in-law continue to sponsor her with financial support for her student visa until 2014 even though her husband had left in January 2012. She said that she had no option and that her husband was connected to the visa. She said that her father had sponsored her brother so he could not sponsor her.
The Tribunal noted the applicant claimed that when the applicant’s husband left Australia in February 2012 he had pending criminal charges against him and was on bail. There was no information to support this as the documents provided by the applicant indicated that he was charged with an offence in February 2010 and convicted of that offence [in] January 2011 where he was fined [amount], more than a year before he departed Australia. The applicant claimed that her husband was required to report to the police every two weeks for the next eight years and had to notify of any change of address. She said that she was not sure if he had any other charges.
The applicant confirmed that she had an abortion in [2011]. She said that this was her decision. She said that when her husband left in February 2012 he took some of her jewellery and $600. She said that neither she nor her husband had any assets.
The applicant said that she divorced her husband in 2017. Her application was made in Australia. She sent the documents to her father in India who then arranged to have them served on her husband. She said that when her father first did this, her husband refused to sign them, but when her father took them to him again, he signed them on the understanding that there would be no property settlement. The applicant agreed that there was no property to divide between herself and her husband.
The applicant said that she returned to India in December 2012 to spend time with her daughter. She said that upon arrival in India she went to her in-law’s home at Ludhiana, staying for a few days, before travelling with her daughter to her parents’ home in Jalandhar. She then stayed there for a while before returning to her parents-in-law’s home and then returning to Australia. She said that she wanted to take her daughter back to Australia, but her parents-in-law said that only once the applicant finished studying in Australia would she be able to have her daughter.

The applicant said that it was only after her daughter’s death that threats started to be made against her by her husband and his family. She said that as she was married, culturally she was not able to oppose her in-laws. She said that after the death of her daughter more threats were made and they tried to get her pregnant.
The applicant said that when she returned to India in December 2013 after the death of her daughter, she and her parents stayed with her husband’s family in Ludhiana. She said that after five or six days she went to the police to complain that her husband and his parents were responsible for the death of her daughter. She said that no action was taken and her parents forced her to withdraw the complaint and apologise to her in-laws at the police station.
The applicant said that when she was in India after the death of her daughter her husband’s parents started to make threats against her. She said that they told her that as “the bridge between you and your husband is broken, if you go back it will be difficult to keep you under our control”. She claimed that her in-laws put sleeping pills in her food and then her husband tried to make her pregnant. She said that she called her brother who helped her by arranging a flight from India to Australia. She said that she went back to her parents’ home in Jalandhar and returned to Australia. She said that when she was staying with her parents, they wanted her to return to her husband’s home because they did not agree with her being divorced. The Tribunal noted that her father had assisted her in obtaining the divorce from her husband. She acknowledged he did, but said that divorce is not common and her father only helped her because the applicant had a good relationship with her brother and her brother had asked their father to help get the divorce.
The applicant repeated that the threats only started in January 2014 after the death of her child. She then said that the threats started in 2012 when her father-in-law travelled to Australia and threatened to have her chopped up into pieces. She confirmed that she was living with her brother-in-law at that time and she continued to do so until June 2012. She said that nothing happened to her in Australia. She confirmed that her brother-in-law was continuing to provide the financial support for her student visa in 2014. She said that this was because she had been told that the brother-in-law would be looking after her visa.
The applicant has said that the threats from her husband and her family continued until 2018. She said that in 2014 she blocked the husband’s number from calling but as he was using private numbers she then changed her phone number. She said that her husband’s family then went to her brother’s sister-in-law’s family to get the new phone number and the threats continued. She said that despite changing her phone number she continued to get threats from her husband and his family until 2018. The Tribunal noted this was inconsistent with previous information which was that she had not changed her phone number. She said that there was a problem with the interpretation.
The applicant said the threats made were that she had to return to her husband and if she did not, if she returned to India she would be killed and she would be attacked with acid. She said that it would be arranged for a traffic accident to happen and she would be killed. The applicant said that despite the fact that she was in Australia at the time, she did not report these threats to anyone. She claimed that her brother said that she should make a complaint, but as she knew her husband could not come to Australia she decided she would not make any complaint. The Tribunal noted that she had no right to reside permanently in Australia and that she was saying that she would be returning to India. She said that as she was going through depression she could not think of anything.
The applicant claimed that it was not just the husband’s family who were telling her to return to India, but also “common relatives” were saying that she should return to her husband. She confirmed that her brother-in-law in Australia knew where she was living. She said that there was only one threat made in 2012 and that the other threats were made between 2014 and 2018. The Tribunal noted that this was inconsistent with information provided previously by the applicant where she had said that she had not received any threats since July 2014. She claimed that she had not been heard properly.
The applicant said that when she returned to India in 2015 for her brother’s wedding she did not tell her parents that she was going to attend. There were about 200 people at the wedding. She said that she arrived in Jalandhar [in] December 2015 at her parents’ home. There was then a religious ceremony which lasted for two days before the wedding took place on [date] December 2015 and continued until [date] December 2015. After that the applicant travelled to New Delhi to stay with her father’s cousin before returning to Australia [in] December.
The applicant said that nothing happened at the wedding until [date] December 2015. She said that her husband, his father, two uncles and a cousin turned up at her parents’ home and asked where she was. Her brother told them that she was not there and so they created a scene and made threats to her parents and to her brother that if they did not tell them where she was they would harm them. She said that they then left and the next day her father spoke to her husband’s father, saying that the applicant had returned to Australia. She said nothing further happened.
The Tribunal noted that this was inconsistent with the information previously provided by the applicant where she claimed that over that period her husband’s parents had made her life a living hell. She said that this was incorrect and that it was her parents who made her life a living hell and not her husband’s parents. The Tribunal noted that before the Department she had previously claimed that her husband with other family members attended her parents’ home on two occasions and then her husband’s father on another occasion. This again was inconsistent. The applicant claimed that she had not been heard correctly.
The applicant claimed her parents had never supported her. She said that they had never supported her since she got divorced. She said that they only do things for her, like serve the divorce papers on her husband, because her brother asks them to do that.
The applicant repeated her claim that she had not received any threats since 2018. She said, however, that other family members have said that she should return to her husband and live with him. She claimed that her parents also say that she should return to live with her husband. She said that her parents have said that her brother should not support her any longer.
The applicant said that when she went to New Delhi after her brother’s wedding she was staying with her father’s cousin. She said that her father’s cousin did not know anything about her problems because New Delhi was a long way from Punjab. She said that her father’s cousin had lived there all her life and was married with two children. She said that her father’s cousin’s husband had a [business] and that her cousin did the paperwork for the business at her home.
The applicant confirmed that she spoke Hindu, Punjabi and English. She said that she would not be able to relocate anywhere in India because it was easy for somebody to locate a person in India. The Tribunal indicated that this was not consistent with country information which indicated that in a population of 1.3 billion people it was difficult to locate somebody even in the same state, let alone if a person was living in another state. The applicant would be able to live in New Delhi without any difficulties from anyone else. The applicant claimed that if she goes back to India her husband’s parents will locate her and will kill her and the police will do nothing.
The Tribunal raised the Friendship Treaty between Australia and Nepal. The applicant claimed that if she goes to Nepal her husband’s family will find out and they will be able to enter Nepal and get her there.
The Tribunal noted the medical certificate in relation to the workers’ compensation claim. It was submitted that this information showed that the sponsor would not be able to obtain employment in India.
After the hearing, the applicant provided a further statement where she made the following claims:
·Her student visa was always managed by her brother-in-law and his wife which was why they were providing her the financial sponsorship;
·They only did this as they wanted to make sure her husband had a potential way of coming back to Australia;
·The applicant’s father did not sponsor her as he was already sponsoring the applicant’s brother and then he did so only for her last applications for a student visa;
·The applicant’s husband did have a reporting condition as a result of his conviction but she is unable to provide any court documents or other documentation about this;
·It was not easy for the applicant to depart India when she returned there and it was only with the help of her brother that she was able to leave and her brother convinced her parents not to return her to her in-laws;
·The applicant’s in-laws want her to return to them in India, but if she does not comply they will kill her;
·The applicant had a number of different telephone numbers while in Australia, but she does not have records to show this, and she changed her number to stop her in-laws contacting her;
·The applicant’s parents are still unhappy with her being divorced and they are ashamed of her and only do things for her because her brother asks them to do so even though they have asked her brother to stop supporting her;
·The inconsistencies in her statements are due to her nervousness and inability to think straight due to what she has gone through;
·She cannot live in India as a single divorced woman;
·The divorce she was granted in Australia is not recognised in India;
·The applicant cannot work in India due to her [injury]; and
·Her in-laws will hunt her down if she returns to India.
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. 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).
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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
On the basis of the applicant’s identity documents, including her passport and evidence provided at the hearing before the Tribunal, the Tribunal accepts that the applicant is a national of India. Therefore, for the purposes of s.36(2)(a) of the Act and the meaning of refugee in s.5H of the Act, the Tribunal accepts that India is the country of nationality. For the purposes of s.36(2)(aa) of the Act, the Tribunal accepts that India is the receiving country.
Country information
DFAT reports that “traditional social practices and the low status of women in many parts of India can result in domestic and gender-based violence”.[1] Although the Indian constitution provides a number of guarantees in relation to women’s rights and a woman has been the Prime Minister of India, there are various sociodemographic and sociocultural risk factors from various forms of violence and abuse towards women, including patriarchal attitudes towards marriage and motherhood, stigmatisation of unmarried, separated or divorced women and low rates of education levels.[2] Despite this, the number of single women in India is increasing to around 21% of the female population, or about 73 million women who are unmarried, divorced, separated or widowed.[3]
[1] DFAT Country Information Report – India, 10 December 2020 at paragraph 3.113.
[2] DFAT Country Information Report – India, 10 December 2020 at paragraph 3.119.
[3] DFAT Country Information Report – India, 10 December 2020 at paragraph 3.123.
The increasing number of women now employed, particularly in the bigger cities in India like New Delhi, is leading to more outspoken criticism of patriarchal attitudes within the Indian community. This includes the recent criticism of a Supreme Court judge, Justice Sharad Bobde, when he asked a man accused of raping a girl whether he would marry her.[4] As reported in that article, there has been increasing scrutiny of rape and sexual crimes in India since 2012 with increasing activity by activists supporting women’s rights.
[4] BBC World News – India Supreme Court: Calls for Justice Sharad Bobde to quit over rape remarks, first published 4 March 2021, accessed 8 March 2021.
Divorce rates in India remain low by international standards, however, they are increasing. In 2017 the Organisation for Economic Cooperation and Development reported India’s divorce rate stood at 1%. In 2019 it was reported that the absolute number of divorces had gone up from 1 in 1,000 marriages to 13 in 1,000 marriages over the last decade or so. It was also reported that despite divorcees being riddled with stigma, women are challenging that perception and are pushing for change.[5] There is increasing evidence of more single women participating in the workforce in India.
[5] Happily divorced: Indian women are breaking the stigma around separation like never before - The Economic Times (indiatimes.com), first printed 27 January 2019, accessed 27 January 2021.
Overall, DFAT assessed women across India generally face a low risk of official discrimination, in that there are constitutional and legal protections for women. There are, however, discriminatory regulations and complaints about barriers to reporting crimes and business participation.[6] Women, particularly in rural areas and from lower castes, face a moderate risk of societal discrimination and violence and long-standing traditional values and gender roles can restrict the participation of women in the workforce and community and in gaining access to health and mental health care.[7]
Delay in making the application
[6] DFAT Country Information Report – India, 10 December 2020 at 3.131.
[7] DFAT Country Information Report – India, 10 December 2020 at 3.133.
As discussed below, there are significant inconsistencies in the claims made by the applicant as to when the alleged threats against her from her former husband’s family were first made and ended. Certainly, the claim made by the applicant is that after the death of her child in [2013] she has made allegations that her in-laws family were criminally negligent in the death of her child. It is claimed that after that they have been making threats against her. She also claimed her father-in-law made a threat against her when her husband left Australia in February 2012. She claimed that when she returned to India in December 2015 for her brother’s wedding that her former husband’s family were continuing to threaten her and she was required to return to Australia. Despite this, the applicant did not apply for the protection visa until October 2016, only after she was refused a student visa and she had no other avenue to be able to remain living in Australia. The fact that she claims that she was facing threats from her husband’s family from December 2013 and yet she did not apply for the protection visa until almost three years later undermines the claims that she has been making.
The applicant claimed that she was not aware that she could apply for a protection visa until she did. The Tribunal does not accept this. The applicant applied for a number of student visas over this period until her final application was refused in September 2016. The applicant acknowledged that she had received advice from migration agents over this period, despite not having them specifically act for her in those applications. The applicant has been able to enrol in a number of different courses of study indicating that she has the capacity to make enquiries and is aware of Australia’s immigration laws to meet her needs.
When applying for her student visas, the applicant made no claim that she faced any problem or difficulty in India which would prevent her from returning to India at the end of her studies in Australia. She stated specifically that it was her intention to return to India, or to [City 1 in another country] where her parents were living, upon the completion of her studies. When she applied for a Bridging visa in 2016 she did not indicate that there was any reason why she was not able to return to India. The fact that she did not provide any indication that she face any threat or harm in India over the course of these multiple applications to the Department undermines the claims that she has a well-founded fear of persecution or that there is a real risk that she will suffer significant harm in India for any reason.
The applicant also had the assistance of her brother who she was living with for an extended period of time in Australia. She claimed that her brother had raised the issue of seeking protection in Australia but she did not consider that she needed to do this as she claimed that as her husband and his family could not come to Australia there was no need to do so. This claim is inherently unlikely as the applicant was claiming in her student visas that she intended to return to India or to be with her family in [City 1 in another country] once her studies were completed. She did not have any right to remain living in Australia and, as such, any claim that she saw no need to apply for a protection visa as she was a student in Australia is inherently unlikely.

The fact that the applicant did not apply for a protection visa until after her last attempt to apply for a student visa was refused must be given some weight when considering the credibility of the claims that she has been making.
Assessment of claims
There have been multiple inconsistencies in the claims being made by the applicant in relation to the claim that she is being threatened by her former husband and his family.
The inconsistencies in the claims made as to when the threats from her husband and his family commenced and when she last received them include the following:
·In the statement she made to the Department in support of her application dated 30 September 2016, she claimed that her husband and his family were still calling her, making death threats and despite her blocking their number, they kept calling from different numbers.
·When interviewed by an officer from the Department on 4 January 2017, the applicant claimed that she had last received a threat from her husband or his family in February or March 2014, later changing this to say that the last threat came in July 2014;
·When interviewed by an officer on 4 January 2017, the applicant claimed that the threats only commenced in January 2014;
·In the statement the applicant provided to the Tribunal dated 9 March 2020, she claimed her father-in-law when he was in Australia in January 2012 threatened to kill her and cut up into pieces and bury her in the backyard;
·In the hearing before the Tribunal, the applicant claimed that it was after the death of her daughter in [2013] that her husband’s parents started to make threats against her, as the death of her daughter meant that “the bridge between (her) and (her) husband is broken”;
·In the hearing before the Tribunal, the applicant repeated that the threats only commenced in January 2014, before changing her evidence to say they started in 2012;
·In the hearing before the Tribunal, the applicant said the threats had continued until 2018;
·In the hearing before the Tribunal, the applicant said there was only one threat made in 2012 and the other threats had been made between 2014 and 2018; and
·In her statement dated 9 March 2020, the applicant was claiming that through her common relatives she is aware her in-laws were still threatening her.
The applicant has provided a number of excuses as to why there were inconsistencies in her claims. The applicant has at various times blamed problems with the interpreter, the fact that she has suffered trauma and therefore has difficulty remembering things and she simply gets overwhelmed with emotions and cannot think clearly or remember things about her past.
The Tribunal acknowledges that people who have suffered traumatic events will often have difficulties recalling them. The Tribunal does not accept, however, that the extent of the inconsistencies and the claims made by the applicant can simply be attributed to a failing memory or errors in interpretation. This is particularly so when it is considered that when she applied for the visa in 2016 it was claimed her husband’s family were still calling her and threatening her at the time; that when interviewed by the Department she claimed she had last been threatened by her husband’s family in February or March or July 2014, in her statement to the Tribunal she claimed her husband had been threatening her in 2015 and that she had blocked his number; in the hearing she claimed the threats continued until 2018, and in the statement provided prior to the hearing she claimed the threats were continuing.
It is noted that in the report prepared by Dr [A] dated 9 March 2020, he reports that the applicant complained that her father-in-law would misbehave with her by trying to touch her inappropriately and despite her reports to the police, no action was taken. He also reports her claiming that in 2012 after her husband fled the country her brother-in-law started to misbehave with the applicant when his wife was away. The claims made are inconsistent with her claiming that she had a good relationship with her brother-in-law.
The applicant has claimed that her husband’s family are politically connected and that the police have failed to carry out any investigation as a result of criminal actions of her husband and their family due to their influence. The applicant has provided no information to support this claim. There is no information which would indicate the applicant’s husband or any member of his family is a member of Parliament or associated with any political party that would have any influence over the authorities in India.
The applicant claimed that her husband had been accused of various criminal offences in India which was the reason why his family wanted him to leave India and live in Australia. Apart from the claims made by the applicant, there is no information to substantiate this claim. The applicant’s husband was convicted of an offence [in] January 2011. Although the applicant reported to Dr [A] that he was convicted [for a crime], the newspaper report provided by the applicant to the Department dated [date] September 2010 only states that he [details deleted]. The Notice of Conviction dated [date] January 2011 of the applicant’s husband which the applicant provided to the Tribunal shows that he was fined [amount] with no other order being made. Although the Tribunal does not minimise the seriousness of the offence, the fine imposed by the court on the applicant’s husband would indicate that it was at the lower end of any assault that the applicant’s husband was convicted of.
The applicant claimed that her husband left Australia breaching his bail conditions. As the applicant’s husband did not leave Australia until February 2012 and he had been convicted [in] January 2011, there would have been no bail conditions that he would have been subject to. The applicant claimed that although there may not have been bail conditions, which she had previously referred to, she believed that he was subject to a reporting order. Although this is possible, there is again no credible information that the applicant’s husband was subject to any reporting orders or that his departure from Australia was to escape any criminal sanction. The Notice of Conviction does not indicate that there were any other orders made when the applicant’s husband was convicted of the offence apart from the payment of [a fine]. There is nothing to indicate that the applicant’s husband was subject to any further prosecution or reporting requirements or he had committed any other offence in Australia. There would be no reason for the applicant’s husband to depart Australia as a result of any criminal activity or further prosecution.
The Tribunal accepts that the relationship between the applicant and her husband deteriorated as a result of the applicant becoming aware of the criminal conviction. The Tribunal notes the evidence of the applicant that she decided to terminate her pregnancy in [2011]. This was her decision and it was made without any pressure or coercion from her husband. It appears more likely that the applicant’s husband returned to India in February 2012 as the relationship between himself and the applicant had broken down irretrievably and he no longer wished to live with her. It is noted that after her husband left Australia the applicant continued to live with her husband’s brother and his family [until] she moved to live with her brother in June 2012.
The applicant claimed that her father-in-law threatened to kill her and cut her into pieces and bury her in the backyard. The Tribunal does not accept this. The applicant claims that this occurred in February 2012 when her husband left Australia and her father-in-law and sister-in-law were in Australia. There is nothing to indicate the applicant did anything at the time to seek protection or report the alleged threat. This is despite the fact that the applicant was studying at the time in Australia and had been [working]. The Tribunal does not accept that if such a threat had been made, the applicant, who had been living in Australia since January 2010, would not have been aware that she could report such a threat and seek protection. The applicant continued to live with her husband’s brother and his family despite the alleged threat having been made. The applicant provided inconsistent information as to why she remained living with her husband’s brother. She claimed that he had stolen her passport so she had no option but to remain there. Again, there is no information which would indicate she did not report to the authorities that her brother-in-law had taken her passport and refused to return. She also claimed that she had a good relationship with her brother-in-law which is why she was able to continue to live there and her brother-in-law continued to provide the financial sponsorship for her student visas. This is inconsistent with the claim made by the applicant to Dr [A] that her brother-in-law would misbehave and her claim in her statement dated 9 March 2020 that he would make “indecent comments and advances” towards her.
Although the separation may have led to some cultural shame for both the applicant and her husband’s family, the Tribunal does not accept that the husband’s family threatened the applicant in any way or she had a well-founded fear of persecution as a result of the end of that relationship or that there was a real risk the applicant would suffer significant harm from the husband or his family or any other person as a result of the breakdown of that relationship.
The applicant returned to India in December 2012. During that visit, the applicant said that she stayed with her husband’s family in Ludhiana before travelling with her daughter to her parents’ home in Jalandhar. She then returned to her parents-in-law’s home with her daughter before returning to Australia. There is nothing to indicate that during this period the applicant suffered any harm or any threats from her husband or his family. The Tribunal does not accept that if the applicant had suffered ongoing threats and violence from her husband or his family that she would have returned to India or returned to stay with her husband and in-laws after spending time in her family’s home before she returned to Australia. That she returned to her husband’s family home before returning to Australia does not support her claim that she faces any threat of harm from her husband or any member of his family.
The Tribunal accepts the applicant’s daughter died while in the care of her husband’s family in India. The death certificate provided by the applicant shows her daughter died [in] 2013. She died in [a] Hospital in Jalandhar in India after [an accident]. The report from the hospital reports she was brought to the hospital at [time] on [date] 2013 after [an accident]. She was initially treated by the hospital conservatively and put under close observation. At [time] on [date] 2013 her condition deteriorated and [she] was pronounced dead at [time] on [date] 2013. There is nothing to indicate from the hospital report that the history provided by the husband’s family [was] not accepted or that they had not provided the correct information. There is nothing to indicate that the husband’s family did anything wrong or failed to provide the correct care to the applicant’s daughter after [the accident happened].
The Tribunal accepts that the applicant has blamed her husband and his family for the death of her daughter. The Tribunal accepts that this was an extraordinarily traumatic period for the applicant, particularly as she was in Sydney when the accident occurred and her child had died by the time she reached India. The Tribunal accepts that she made complaints to the police after she arrived in India, however, the police did not take any further action against the husband or his family for the death of the applicant’s daughter and the police accepted the applicant’s daughter had died after a tragic accident. The Tribunal accepts that the death of the applicant’s daughter and the belief of the applicant that her husband and his family were at fault has caused further tension in her relationship with them and that they resent the allegation she has made that they were the cause of her daughter’s death. The Tribunal does not accept, however, that the applicant’s belief that her husband and his family were the cause of her daughter’s death has led to her husband or his family making any continuing threats against the applicant. The Tribunal does not accept that the applicant faces any well-founded fear of persecution from her husband or his family as a result of her belief of their culpability in the death of her daughter. The Tribunal does not accept that there is a real risk she will suffer significant harm from her husband or any member of his family or any other person as a result of any ill feeling between her husband and any member of his family and the applicant arising from the death of her daughter.
The applicant returned to India in December 2015 to attend her brother’s wedding. In her initial statement, she claimed that she dreaded returning to India because her parents-in-law were still forcing her to go back and live with them and on her return “they made my life a living hell”. In her subsequent statements, the applicant claimed that she left her family in Jalandhar [in] December 2015 and it was not until [later in] December 2015 that members of her husband’s family arrived and caused a scene.
The Tribunal does not accept that the applicant’s return to India in December 2015 to attend her brother’s wedding led to any confrontation or action by the applicant’s husband or his family to threaten the applicant or any member of her family. The fact that she initially claimed that her return to India in December 2015 was a “living hell” and then subsequently that she did not have any contact with her husband’s family undermines all the claims that she is making. The Tribunal does not accept that there is any misinterpretation that the individuals she was accusing of making her life a “living hell” were her husband and his family. She claims that her parents are also trying to make her to return to her husband’s family and it was her own parents who were making her life a “living hell”. This is inconsistent with the claims made in her statement dated 9 March 2020 where she claims that her mother sent her to Delhi as she feared the applicant’s husband would find out that she was in India and try and forcefully take her back. It is inconsistent with the applicant staying with her father’s niece in New Delhi before flying back to Australia. It is inconsistent with her father providing the financial sponsorship for the student visa applications she made after her brother-in-law was no longer in a position to be able to sponsor her. This undermines the claims made by the applicant that her parents are not supportive of her and that they are trying to make her to return to her husband’s family.
The applicant applied for a divorce in Australia which went before the Federal Circuit Court [in] January 2018 and was granted [in] March 2018. The applicant was the sole applicant for the divorce and her husband was served with the application for the divorce by the applicant’s father. The evidence of the applicant was that neither she nor her husband had any assets and therefore there would have been no associated property settlement possible. There is nothing to indicate that the applicant’s father did not cooperate and appropriately assist the applicant in obtaining her divorce and there is nothing to indicate that the applicant’s husband did not cooperate by signing the acknowledgement of service so that the applicant could have been granted the divorce. He raised no objection to the divorce proceedings in Australia.
In her initial application, the applicant claimed that she did not have the support of her family and she is not in touch with them anymore. This is inconsistent with the fact that at the time she made that statement she was living in her brother’s home and that her father had provided the financial sponsorship for her most recent student visa application which was refused.
The fact that the applicant’s father assisted the applicant in obtaining the divorce from her husband in late 2017 undermines the claim that the applicant’s parents are not supportive of her and they want her to return to live with her husband’s family. The fact that her husband cooperated in obtaining the divorce by signing the acknowledgement of service and by not opposing the divorce proceedings in Australia undermines the claims that the applicant’s husband or any member of his family are demanding that she return to live with them or that her husband or any member of his family or any other person is threatening her for any reason.
The Tribunal accepts that Indian law will not recognise the divorce granted in Australia as valid. This is because it was not a joint application but was an application by the applicant alone with the husband signing the acknowledgement of service. Accordingly, under Indian law, the applicant will still be considered to be married to her husband unless either the applicant or the husband applies for a divorce in India. There is nothing to indicate that the applicant could not of herself undertake proceedings in an appropriate court in India to seek a divorce under Indian law. There is nothing to indicate that just as her former husband cooperated in the proceedings to obtain a divorce in Australia, he would not also cooperate in obtaining a divorce in India.
The Tribunal has considered all the claims made by the applicant. The Tribunal does not accept that the applicant is subject to any threats from her former husband or any member of his family or any “common relative” for her to return to her former husband’s family. The Tribunal does not accept the applicant’s former husband or any member of his family have any continuing interest in the sponsor or that there is any threat from her former husband or any member of his family against the applicant.
The Tribunal finds that the marriage between the applicant and her former husband broke down after the applicant was convicted of [a crime] in Australia. The breakdown of that relationship led the applicant to terminate her pregnancy in [2011] and the applicant’s former husband deciding to leave the applicant and return to India in February 2012, more than a year after the criminal proceedings he faced had been finalised. The Tribunal does not accept that there were any threats made against the applicant by her former husband or any member of his family at that time. She continued to live in the home of her former husband’s brother.
When the applicant returned to India in December 2012, she spent time with her former husband’s family who had been caring for her daughter and also took her daughter to spend time with her parents. There were no threats made against the applicant at that time and she was willing to return to her former husband’s family’s home before departing India to return to Australia.
When the applicant’s daughter died in [2013] the applicant was understandably distressed and blamed her former husband and his family for the death of her child. The Tribunal accepts that she reported her concerns to the police at the time, however, the assessment from the hospital and the evidence available to the police at the time led them to the conclusion that the applicant’s daughter died as a result of a tragic accident and no one was criminally liable. The Tribunal accepts that this led to some disharmony between the applicant and her former husband’s family, however, the Tribunal does not accept that the applicant’s former husband or any member of his family have continued any threats against the applicant or that she has a well-founded fear of persecution or that there is a real risk she would suffer significant harm from her former husband or any member of his family. The Tribunal does not accept that the applicant’s former husband or any member of his family will attempt to have her return to their home or that they will harm her in any way should she return to India.

The Tribunal has considered the applicant’s situation as a divorced single woman in India as well as being a married single woman in India as a result of her divorce in Australia not being recognised in India.
As indicated above, the Tribunal does not accept that the applicant does not have the continuing support of her parents who are now living in India. Her father provided her financial support in her student visa applications. Her father assisted the applicant in obtaining her divorce in Australia by personally serving her former husband with the court documents and having him sign the acknowledgement of service. There is no evidence which would support the claim that the applicant’s parents have any wish for the applicant to return to live with her former husband’s family or that they have taken any action to try to make her to do so. The Tribunal finds that if the applicant were required to return to India she would have the continuing support from her family to provide her a home and safe environment in India.
The applicant has also referred to “common relatives” who wish her to return to live with her husband’s family. There is little information about any threats these “common relatives” have made against the applicant or any indication that any such threat means that the applicant would face a real chance of persecution by being a single woman in India, either divorced or still married to her former husband, or that there is a real risk she would suffer significant harm from any of her “common relatives” or any other person in India. The Tribunal does not accept the claim that there are other “common relatives” or any other person or group who is threatening the applicant or would mean that the applicant has a well-founded fear of persecution or there is a real risk she would suffer significant harm in India.
The applicant has provided various medical reports indicating that she has suffered [an] injury as a result of a work-related accident. She has been referred to a pain specialist. There is nothing to indicate that this work-related injury would prevent her from obtaining work in India. Although it may restrict the type of work the applicant would be able to participate in, the Tribunal is not satisfied that the injury suffered by the applicant is so debilitating that she would not be able to find appropriate employment in India as a single woman. The applicant has shown herself to be a resourceful and resilient individual while living in Australia. She has managed to be able to support herself and make a claim for workers’ compensation. There is nothing to indicate that she would not take this resourcefulness to India and use it to establish herself there and find employment.
As set out above, the Tribunal does not accept that the applicant has a well-founded fear of persecution as a result of being a divorced single woman or a married single woman separated from her husband and his family or for any other reason. The Tribunal does not accept that if the applicant returned to India there is a real risk that she will suffer significant harm from her former husband or any member of his family or any other person for any reason.
If the applicant did return to India, the Tribunal finds that she would be able to relocate to any major city in northern India. In particular, the Tribunal finds the applicant would be able to relocate to New Delhi. She has previously stayed in New Delhi with a female cousin, the niece of her father. The applicant disclosed the fact that she speaks, reads and writes English, Hindi and Punjabi. Her language skills would give her enhanced employment opportunities. The Tribunal finds that if the applicant chose to, it would be reasonable for her to relocate to New Delhi or any other city in northern India away from the state where her husband and his family live and that she would be able to safely live there and find appropriate employment. In coming to this conclusion, the Tribunal has taken into account the fact that the applicant would be considered to be a single woman living without her immediate family and the social stigma that may be attached to that status in India.
As set out above, the Tribunal does not accept the applicant’s former husband or any member of his family or any “common relatives” have any interest in the applicant or that there is a real chance she would face persecution from them or that there is a real risk she will suffer significant harm from them. Further, the Tribunal does not accept that the former husband of the applicant or any member of his family have any political connections that would enable them to locate the applicant if she was living in New Delhi. The Tribunal does not accept the applicant’s former husband or any member of his family would pose any appreciable risk to the applicant even excepting the claims being made by the applicant if she were to relocate to New Delhi or some other city in northern India away from the Punjab.
For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution and further that even if the applicant’s claims are accepted, the applicant would be able to relocate to New Delhi and if she did so there would not be a real chance of persecution from any group or individual in that city.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hugh Sanderson
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.
…

[2021] AATA 933

16 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness

Natural Justice