1707193 (Refugee)

1707193 (Refugee) [2019] AATA 6820 (15 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707193
COUNTRY OF REFERENCE:                   India
MEMBER:Tamara Hamilton-Noy
DATE:15 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 15 October 2019 at 9:37am
CATCHWORDS
REFUGEE – protection visa – India – particular social group – single women – woman with a young child – love marriage – fear of honour killing – physical abuse by family – divorced – illegitimate child – lack of familial support – prevalence of sexual harassment – fear of disapproval and non-acceptance – child’s circumstances impacted by mother’s vulnerability – internal relocation – right to enter and reside in Nepal – decision under review remitted

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 March 2017 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 24 December 2015. The delegate refused to grant the visas on the basis that the applicants are not persons to whom Australia owes protection obligations.
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 themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In her protection application, the applicant stated that she left India because her family threatened to kill her and her husband. She was not safe at her in-laws as they do not like her. She feared returning to India because she is a single mother and was in a love marriage. She came to Australia after fighting with her family and they think she had shamed them in front of their community. Her brother hates her and told her he wants to kill her. Her family wanted her to marry a different boy but she refused; when she said she wanted to marry someone else her family got angry and her brother beat her up. Before she left India she moved to her husband’s village but her family came to her in-laws with the police; they threatened her and her ex-husband that they would kill them if she did not return with her family. They took her back to her village but she ran away from her brother and hid from him by staying at her husband’s relative’s house.
At the time of making the protection application, the applicant stated she was pregnant and expecting her first child in [month], and the child was not from her marriage. After her husband left because of another girl, she was lonely and depressed and met a guy who became her best friend. He said he would be with her. She became pregnant and told him, and he left and said he could not marry her because his parents would not accept her.
The applicant stated that the authorities in India do not become involved in family matters. Her brother knows most of the local police officers and police in India are not good. Everyone in India will try and take advantage of her when they find out she is single. She does not believe she could relocate within India as she is a single mother who became pregnant outside her marriage and Indian society will never accept her. Nobody will accept her child as he will not have his father’s name attached. She fears she will not be able to survive in India.
The Tribunal hearing
The hearing was conducted on 3 September 2019 with the assistance of a Punjabi interpreter. The applicant’s representative attended the hearing with her.
At the hearing, the applicant told the Tribunal that she had completed the written protection application with the assistance of her representative and that the contents of the application were correct.
The applicant stated to the Tribunal that she was born in India in [year]. Her son was born in Australia in [year]. Her parents lived in Jalahandar, Punjab when she was growing up. She is unsure whether they are still there. Her mother told her that after she was married, her brother had left Jalahandar and moved to Jaipur. She has no contact with her parents and doesn’t know where they are currently living; she last spoke to them when she arrived in Australia in 2009. The applicant stated that she has five sisters and one brother. Her sisters were living in Punjab when she left India and she has not had contact with them since being in Australia. She believes her brother is in Jaipur as when she phoned her mother, her mother told her he had moved there. She does not have family in Australia and has a couple of friends helping her. She does not have any contact with anyone residing in India.
The applicant stated that she was married in India [in] March 2009 to [Mr A]. They met in 2008 at a wedding party of a distant relative and he gave her his telephone number and they spoke over the phone. He told her he loved her and wanted to get married. She spoke to her parents about this a month or two before the marriage and they didn’t agree. The boy came and picked her up and they went and got married; after that they went to her in-laws who were not happy but then starting loving her. Her brother used to come to her in-laws, some 50 to 60 kilometres from where her family was, to forcefully take her back to the family and beat her. Her parents had an issue with her husband because he was not someone they had chosen and hadn’t agreed to the marriage. Her brother came again to her in-laws two to three days after they were married, with the police, and beat her. Her brother told her she had put a lot of shame on the family. She and her husband hid at his relatives’ houses, from place to place, for a month or two before leaving for Australia. Her husband applied for a student visa to come to Australia. She last spoke to her in-laws in early 2012 when she returned to India to stay with them. Her family did not know she returned to India in early 2012, and she returned because she and her husband were fighting and his parents tried to sort things out between them. Her husband came to India and brought her back to Australia. She last spoke to her in-laws in 2012 or 2013 and after that she was divorced from her husband.
The Tribunal asked the applicant why she had not had contact with her in-laws from 2012 onwards and she stated that she and her husband were arguing; she called them and was told it was their matter to sort out. Her husband fell in love with another woman and they lived separate lives for a year or two before separating. This was while they were living in [Suburb 1] with two other men; her husband then moved out, telling her he didn’t want to live with her. He moved out eight to nine months before their divorce, and they were divorced in November 2015. As to the reasons for the separation, the applicant stated that her husband was telling her he wanted to live with another woman.
The applicant stated that she had attended primary and high school up to year 12 while in India. After high school her father didn’t allow her to work. As there were five girls in the family they were very poor and she did not attend university and worked at home assisting her mother around the house. Since being in Australia she has worked in a [factory], from 2010 until her son was born. She has been living with a friend in [Suburb 2] for the past two years and receives assistance from [a named organisation]. She has not worked since her son was born.
The Tribunal asked the applicant about her concerns if she returned to India and she stated that her brother would kill her and her son. As to why she would be targeted after 10 years of no contact she stated it is because her child is not her husband’s child; when she was under stress a friend used her. She became pregnant and he left. If she returns to India, her brother is very angry because he told her in front of everybody that she had shamed them.
The Tribunal asked the applicant about the documents she had used to obtain her passport while in India and she stated she had used her high school certificate. She stated that she no longer has this document, it is with her parents. As to why she could not relocate to another area of India outside of Punjab, she stated that she knows it is not difficult to find someone and that people would come to know that the child is not her husband’s. The Tribunal observed that India has 1.2 billion people and asked how her family would know she had returned and she stated that in the village, people have relatives in other states and would find her easily. As to how her family would locate her in a city such as Delhi, she questioned how she could survive as she is not educated and has no skills and it is not easy to obtain a job or house or pay rent. The applicant stated that if she lives in a small village she will not be left peacefully and she will be abused and used and her son will also be affected.
The Tribunal asked about the applicant’s father’s employment and she stated that he has passed away but was a farmer. Her brother owns land and has a lot of money.
The Tribunal asked about the location of the applicant’s former husband and she stated she has no idea where he is. She stated she also does not know where the father of her child is; she last spoke to him when she was two to three months pregnant.
The Tribunal noted that the previous DFAT report, cited by the applicant’s representative, stated that millions of Indians successfully relocate within India and it is possible to obtain work in the large informal sector without papers. The applicant stated in response that she is alone with a small child and it is not safe for her.
The Tribunal asked the applicant about her concerns about her son returning to India and she stated that in India children are kidnapped. People who move internally have family and another person dropping a child at school. She is concerned that her son will be killed and no one will play with him because he doesn’t have a father.
As to any mental health concerns, the applicant stated that she has been attending counselling but has not been for three months and has no further appointments booked. She takes [medication] to help her sleep.
During the hearing the Tribunal spoke to a [witness], who stated that she had known the applicant since she was pregnant and that the applicant is currently living with her. She doesn’t know the applicant’s family back in India but the applicant’s partner has left her and she had a child with another man. The witness stated she hasn’t seen the applicant talking to her family at all.
The applicant’s representative submitted that she would be unable to survive in Nepal as she is a single woman with anxiety and stress, has a [age] year old illegitimate child, has no skills and only speaks Punjabi and would face the same problems as in India.
The Tribunal also had regard to the applicant’s representative’s written submissions setting out media reports on the situation of single women in India and submitting that the applicant is vulnerable as a single mother with an illegitimate child.
Country information
DFAT’s thematic report on Punjab notes that domestic violence is highly prevalent across Punjab, with 43 per cent of men in Punjab and Haryana reporting having been perpetrators of intimate partner violence, including 22 per cent who report perpetrating physical violence against their partner. Fifty five per cent of women report being victims of intimate partner violence. DFAT was advised by a range of sources that domestic violence is highly prevalent and largely accepted or ignored by the broader community. Other sources advised DFAT that sexual harassment is highly prevalent in Punjab, that women are likely to regularly face sexual harassment in public, including inappropriate staring, touching, verbal harassment or worse, and that in extreme cases, women who reject the advances of men may face serious assault including possible acid attacks.[1]
[1] DFAT Thematic Report, Punjab, 7 December 2016.
DFAT describes serious sexual assaults as being highly prevalent in Punjab and, while increasingly attracting media attention, a lot of community apathy remains and many people do not recognise the prevalence of attacks. DFAT assesses that women in Punjab face a high risk of domestic violence and sexual harassment, a moderate risk of serious sexual assault and a high risk of societal discrimination throughout their lives.[2]
[2] DFAT Thematic Report, Punjab, 7 December 2016.
As to women marrying outside of their family’s consent, DFAT describes that honour killings occur when a person is murdered by others in their family due to a perception that the individual has brought shame on the family, typically when the person has a relationship with someone with whom their family does not approve. Credible data on the prevalence of honour killings is unavailable for Punjab, partly because of suspected under-reporting.[3] The US Department of State noted earlier this year that honour killings remain a problem, particularly in Punjab, Uttar Pradesh and Haryana, and are usually attributable to a victim marrying against their family’s wishes.[4]
[3] DFAT Thematic Report, Punjab, 7 December 2016.
[4] US Department of State, ‘Country Reports on Human Rights Practices for 2018 – India’, 13 March 2019 at
The most recent DFAT Country Information Report for India notes that traditional social practices and the low status of women in many parts of India result in domestic and gender-based violence, however, over 90 per cent of domestic violence incidents are not reported to any formal agency such as police, social workers or lawyers.[5] Arranged marriages continue to account for the vast majority of marriages across India, and many parents may not accept their child choosing their own spouse.[6]
[5] DFAT Country Information Report, India, 17 October 2018 at 3.33.
[6] DFAT Country Information Report, India, 17 October 2018 at 3.43.
The issue of violence against women has had increased attention following the gang rape and homicide of a young student in December 2012 in New Delhi. Reports of rape have sharply increased since 2013, though the conviction rate has declined. The number of cases going unreported is likely to be much higher. Marital rape continues to be legal.[7]
[7] DFAT Country Information Report, India, 17 October 2018 at 3.34.
The Protection of Women from Domestic Violence Act (2005) requires states to provide shelters, counselling services and legal aid to survivors, however local sources claim shelters are run strictly and are unsafe, and that women accessing the shelters are seen as immoral or deviants who deserve to be punished.[8]
[8] DFAT Country Information Report, India, 17 October 2018 at 3.37.
As to the risk to women more generally, DFAT notes the following:[9]
Women from higher socio-economic backgrounds, particularly urban women, are more likely to use the courts as a means of redress and protection from violence related to dowries, though social stigma can be a deterrent. Women in smaller, rural communities are deterred from such action due to the cost and social stigma. Women with higher standards of education have a better awareness of available services and are better placed to access these services. If working, these women are also more likely to be employed in the formal sector with higher legal protections.
Although, in general, urban women from higher class and caste backgrounds tend to have better access to legal protections, these women may be pressured by their families to hide family violence against them for fear of maligning their family’s honour and reputation.
Other factors which may affect the situation for women experience violence include the state in which she lives, her class, caste, ethnicity, religion, education and age. Access to services is typically better in urban areas than in rural regions. In addition to the geographic advantages of urban-based communities, education and the standard of literacy has a significant impact on access to services.
DFAT assesses that women face a low risk of official discrimination. DFAT assesses that women, particularly in rural areas and from lower castes, face a moderate risk of societal discrimination and violence.
[9] DFAT Country Information Report, India, 17 October 2018 at 3.38 – 3.41.

The US Department of State has described that a lack of accountability for misconduct persisted at all levels of government, contributing to widespread impunity; that investigations and prosecutions of individual cases took place but poor enforcement, a shortage of trained police officers and an overburdened and under-resourced court system contributed to a small number of convictions.[10] Law enforcement and legal recourse for rape victims are described by the US Department of State as being inadequate, with the judicial system unable to address the problem effectively, police sometimes working to reconcile rape victims with their attackers and low conviction rates in rape cases.[11]
[10] US Department of State, Country Reports on Human Rights Practices, India, 2018, 13 March 2019, at p1.
[11] US Department of State, Country Reports on Human Rights Practices, India, 2018, 13 March 2019, at p.36.
As to the ability for individuals to relocate internally within India, there are Constitutional rights to internal movement within India and internal migration flows are significant.[12] However, DFAT notes that several factors may limit options for internal relocation, including language barriers, lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities and discrimination based on ethnicity, religion, caste or gender. Further, lack of identity documents can restrict access to public services, social security and banking and may lead to barriers in obtaining subsidised food, housing and banking. Requirements to provide details of a husband’s or father’s name can exclude single women, women with children and domestic violence survivors from government services and accommodation.[13]
[12] DFAT Country Information Report India, at 5.14 – 5.15.
[13] DFAT Country Information Report India, at 5.18.
The UK Home Office in 2018 assessed that, in general it will be reasonable for a woman to relocate, particularly if single and without children to support, able to access accommodation and support networks, or if she is educated, skilled or wealthy enough to be able to support herself.[14] However, relocation in India of single women, women with children or victims of familial crime was reported by the UK Home Office to be difficult because of the need to provide details of their husband’s or father’s name to access government services and accommodation. The UK Home Office also noted that single women faced difficulties in accessing housing.[15]
[14] UK Home Office, Country Policy and Information Note: Women fearing gender-based violence, July 2018 at 2.6.4.
[15] UK Home Office, Country Policy and Information Note: Women fearing gender-based violence, July 2018 at 4.8.1.
The Immigration and Refugee Board of Canada reports that single women who live away from their families face social and family stigma and that the suspicion with which single women are regarded makes accessing housing difficult. The Ministry of Women and Child Development states that finding safe housing is one of the main problems for women who move to larger cities in search of employment, and that women living alone may be viewed as having suspect reputations and may need to have family members vouch for them in order to gain access to housing.[16]
[16] Immigration and Refugee Board of Canada, ‘India: Whether
The High Level Committee on the Status of Women reported in 2015 that the incidence of ‘singleness’ is much higher for women than men, and that numerous sociocultural, psychological and economic factors make single women vulnerable and marginalised. Within the category of single women, divorced or separated women are much more stigmatised. Health is described by the committee as a neglected area for single women, besides access to property rights and violence.[17]
[17] High Level Committee on the Status of Women, Government of India, ‘Report on the Status of Women in India’ 2015 at
In addition, working class single mothers are reported to be unable to afford elite education for their children or to have access to reliable childcare, with working class single mothers having to leave their children unsupervised for long hours in the house.[18]
[18] Das M, ‘Mum’s the word: heteronormative Indian society and the censorship of single unwed mothers’, Journal of Literary and Cultural Inquiry, Vol 2, Issue 2, 2016, pp3, 4.
Elsewhere, the following is noted:
“For single women, the main issue is to be able to survive, and to be able to survive with dignity”, said social worker Parul Chaudhary who is associated with the National Forum for Single Women’s Rights – a national platform for single women leaders from mass-based organisations with a presence of 12 states as of now.
Single women are forced to depend on somebody’s goodwill – in-laws, parents, brothers and sisters-in-law – just for a roof over their head or for their children to continue in school. “What single women want most,” said Chaudhary, is “the need to feel they are in control of their lives.”
But, many are unskilled and end up doing hard labour that is poorly compensated, said Chaudhary. “For low-income single women, staying at home is not a choice. They have to go out and earn, often till they are advanced in age,” she said.[19]
[19] Bhandare, N ‘As Indian women leave jobs, single women keep working. Here’s why’, IndiaSpend, 23 June 2018 at
As to the prevalence of shelters for single women, the UK Home Office noted the following in 2013:
As noted in an Open Democracy article, dated January 2017, the Protection of Women from Domestic Violence Act (PWDVA) mandates that states much provide shelters, counselling services and legal aid to survivors of domestic violence. The report noted, however, that ‘The language and existing practices of shelters reflect the deeply troubling of jail-like conditions in shelters: “Superintendants” are in charge of “inmates” in institutions where no one is very concerned about the emotional wellbeing and recovery of survivors – there are no individual case files and certainly no long or short-term planning with survivors about their future options.
The government-run Swadhar Greh Scheme, which merged Short Stay Homes and Swadhar in 2016, was aimed at catering for the primary needs of women in ‘difficult circumstances’, and allowed agencies to bid for funding to help such women. The Scheme was designed to provide shelter, food, clothing, counselling, training, medical treatment, economic and social support to women, over the age of 18 – and their accompanying children (girls up to age 18 and boys up to age 12) – for a maximum of 5 years…
….
The government-run Ujjawala programme funded non-government organisation (NGO) and government-run shelter and rehabilitation services for women and children who were victims of sex trafficking. The MWCD reported that during the 2016-17 and 2017-18 financial years, there were over 12,300 beneficiaries of the programme. According to the USSD Trafficking in persons report for 2017 ‘NGOs continued to report the number of government shelters was insufficient and overcrowding compromised victim rehabilitation. Both government- and NGO-run shelters faced shortages of financial resources and trained personnel, particularly of counsellors and medical staff.
HRW reported, in November 2017, that according to the Government of India, there were 151 government-run One Stop Centres (OSCs) set up across the country, aimed at supporting female victims of gender-based violence. However, the report added that there was no information on how many centres were functioning, or how well they were functioning. Temporary shelter at an OSC was available for up to 5 days. According to a press release by the MWCD, dated 5 April 2018, there were 170 functioning OSCs in 32 states and, as of 7 February 2018, 97,961 cases had been registered at the centres.
As to the applicant child, the US Department of State reports that by law parents confer citizenship. A child born in the country on or after July 1, 1987, obtained citizenship if either parent was an Indian citizen at the time of the child’s birth. Authorities consider those born in the country on or after December 3, 2004, citizens only if at least one parent was a citizen and the other was not illegally present in the country at the time of the child’s birth. Authorities considered persons born outside the country on or after December 10, 1992, citizens if either parent was a citizen at the time of birth, but authorities do not consider those born outside the country after December 3, 2004, citizens unless their birth was registered at an Indian consulate within one year of the date of birth. Authorities can also confer citizenship through registration under specific categories and via naturalization after residing in the country for 12 years.[20]
[20] US Department of State, Country Reports on Human Rights Practices, India, 2018, 13 March 2019, at p.1.
The US State Department has noted that children lacking citizenship or registration may not be able to access public services, enrol in school or obtain identification documents later in life.[21]
[21] US Department of State, ‘Country Reports on Human Rights Practices for 2018 – India’, 13 March 2019 at
In July 2015, media reports in Mumbai reported on single mothers “flocking” to help centres after applications for their children to access kindergarten and Grade 1 had been rejected, on the basis that the father’s income certificate was missing and the mother’s certificate was not accepted as a substitute.[22]
[22] Vaswani A, ‘The struggles of a single mother’ Mumbai Mirror, 15 July 2016 at
A media report the following year noted ongoing difficulties:
Those who want to admit their children to school under RTE Act are finding it hard to provide the right documents to the authorities.
The admission process lists down income certificate, caste certificate, residence proof and birth certificate as the documents necessary for admission. However, single mothers, especially those who have separated from their husbands, are in a fix as mostly their children carry the father’s surname and the authorities demand the original papers which the father refuses to part with, thus leaving the child out of the admission process.[23]
Findings of the Tribunal
[23] ‘Deserving kids hit another roadblock in the RTE admissions quota barrier’, ScooNews, 11 May 2016,
The Tribunal accepts that the applicant is from Punjab, India.
The Tribunal accepts that the applicant married [Mr A] in India in 2009 in a ‘love marriage’ that was against the wishes of her parents. The Tribunal is prepared to accept that the applicant’s brother was physically violent towards her after she was married and in response to her marriage being outside the wishes of her family. Physical abuse of the applicant by a family member in response to a ‘love marriage’ is consistent with the country information considered by the Tribunal, in particular, the reports of DFAT and the UK Home Office.
The Tribunal accepts that the applicant’s marriage has broken down since she has been in Australia. At the time of the hearing the Tribunal had before it part of a divorce order stating that the application was heard [in] November 2015 and the ground for the application was proved. The document states that the divorce order took effect [in] December 2015. The Tribunal accepted this evidence as correct.
The Tribunal accepts that the applicant returned to India in 2012 to visit her parents-in-law, in an attempt by them to resolve conflict between herself and her husband, and that she did not see her family during this visit.
The Tribunal notes that the applicant’s application for a protection visa was submitted following the breakdown of her relationship in Australia and finds that this explains the significant time between her arrival in Australia and the lodging of the protection application. The Tribunal accepts that the applicant has a child to another man, with whom she has no relationship or ongoing contact. The Tribunal accepts that the applicant child’s birth certificate indicates his father is of a different name to the male identified on the applicant’s marriage certificate.
The Department delegate has found, and the Tribunal similarly accepts, that the applicant has a subjective fear of disapproval and non-acceptance by society, and harm at the hands of her family, due to having a child born out of wedlock. The DFAT report considered by the Tribunal note that sexual harassment of women is highly prevalent in Punjab, that serious sexual assaults are highly prevalent and that women face a high risk of societal discrimination. The Tribunal finds that these forms of harm cumulatively amount to serious harm. As a single woman without the protection of her family or husband in Punjab, the Tribunal finds that the applicant will face a real chance of serious harm if she returns to Punjab in the foreseeable future. The Tribunal finds that the essential and significant reason for the harm feared is the applicant’s status as a single woman.
As to whether a real chance of persecution relates to all areas of India, the Tribunal is prepared to accept that the applicant has no family or community supports outside of Punjab, and that she speaks Punjabi. The country information considered by the Tribunal indicates that access to services for single women is better in urban than in rural areas. However reports of rape have increased since 2013 in Delhi and shelters set up in larger areas are described as unsafe. The country information identifies limits in accessing services as single women are affected by lack of familial and community networks, financial resources, employment opportunities, gender based discrimination and the need to provide a father’s or husband’s details. Both DFAT and the UK Home Office have accepted that internal relocation is very difficult for single women, women with children and victims of family violence.
The Tribunal is satisfied that, if she returns to an area of India other than Punjab in the foreseeable future, the applicant will face language barriers, lack of family and community supports and a lack of financial resources. The DFAT report indicates that these factors all impact on a single woman’s capacity to relocate to another area of India. Other country information considered by the Tribunal indicates that the applicant would be unable to access housing without her father or husband’s details. The Tribunal finds that the applicant is unlikely to source accommodation across India and that this amounts to a denial of access to basic services which would threaten her capacity to subsist. The Tribunal finds that the real chance of serious harm relates to all areas of India and that the essential and significant reason for the harm feared is the applicant’s status as a single woman.
The Tribunal has, further, considered the applicant’s right to enter and reside in Nepal. The Treaty of Peace and Friendship in 1950 provides for India and Nepal to ‘grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature’. The most recent DFAT report on Nepal describes that women across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms including rape, sexual abuse and human trafficking; that police routinely fail to investigate and prosecute rape cases; and that sexual harassment is a commonly reported problem and that women who work in the informal sector are particularly vulnerable.[24] DFAT assesses in its most recent report that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence, although the experience of individual women varies, and that women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.[25] The applicant is vulnerable to sexual violence as a single woman with a young child and without family or social supports in Nepal. The Tribunal finds that the applicant has a well founded fear of persecution as a single woman in Nepal.
[24] DFAT Country Information Report Nepal, 1 March 2019, at 3.64 – 3.68.
[25] DFAT Country Information Report Nepal, 1 March 2019, at 3.75.
The applicant satisfies s.36(2)(a).
The applicant child, the second named applicant, was born in Australia. Country information considered by the Tribunal indicates that as the applicant child was born outside of India after 3 December 2004, he is not automatically considered to be an Indian citizen. Other country information indicates the applicant child may have difficult accessing schooling as the first named applicant would be unable to provide his father’s details to authorities. The Tribunal finds there is a real chance that if returned to India, the applicant child would be unable to access basic services including accommodation and schooling and that the denial of these services would threaten his capacity to subsist. The Tribunal is satisfied that the essential and significant reason for the harm feared is the applicant child’s status as an illegitimate child of a single mother. The applicant child faces a real chance of serious harm upon return to India.
The Tribunal has considered the applicant child’s right to enter and reside in Nepal, having regard to the country information set out above. The applicant child’s circumstances are impacted by his mother’s vulnerability and the Tribunal is satisfied that the applicant child also has a well founded fear of persecution in Nepal as an illegitimate child of a single mother.
The second named applicant also satisfies s.36(2)(a).
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Tamara Hamilton-Noy
Member

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

[2019] AATA 6820

15 October 2019

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Immigration

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Statutory Interpretation

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