1713266 (Refugee)

[2023] AATA 3214

1713266 (Refugee) [2023] AATA 3214 (28 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER:  1713266

COUNTRY OF REFERENCE:                   India

MEMBER:Gabrielle Cullen

DATE:28 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 28 June 2023 at 12:34pm

CATCHWORDS
REFUGEE – protection visa – India – particular social group – divorced or single women from Punjab without male protection – twice divorced single woman – honour killing – fear of acid attacks – domestic violence – fear of revenge by ex-husband and his family – prevalence of sexual assault and harassment of women – lack of family and community support – capacity to relocate – ineffectiveness and corruption of the police – inconsistent evidence – credibility issues – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65, 359AA, 424AA, 424A, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who is a citizen of India claims to fear return at the hands of her ex-husband and his family due to family related issues, including domestic violence and as her father has bought a case against them in India. She also claims to fear return from Indian society as she is a divorced single woman and has transgressed the norms of society by being divorced and as her parents are old, they cannot protect her. Information indicates that her father has since died.

3. The applicant arrived in Australia [in] July 2010 on a subclass 309 visa as the spouse of [Mr A], an Australian citizen. The evidence indicates they married in India on [date] November 2009. On 29 December 2011 her spouse at the time contacted the Department and advised that the relationship between them had ended. The applicant then alleged family violence had occurred.  The Department found the applicant had not suffered family violence on the basis of an independent assessment. The applicant appealed to the Tribunal (differently constituted) who affirmed the decision of the Department based on a further independent assessment as to family violence[1]. [In] 2016 the Federal Court dismissed the application for judicial review of the Tribunal’s decision (differently constituted). The applicant applied for the visa to which this decision related on 27 July 2016[2].

   [1] As raised with the applicant via s.359AA at hearing.

   [2] The Tribunal makes no adverse finding as to the delay in applying for a protection visa as she was pursuing the matter via the Court and had another case before the Tribunal (differently constituted)

4. On 11 January 2017 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.

5. The delegate refused to grant the visa on 9 June 2017 on the basis that there is no credible threat to her for the reasons she claims.

6. The applicant applied to the Tribunal and did not attach the decision of the Department.

7. The applicant appeared before the Tribunal on 6 March 2023 to give evidence and present arguments. The applicant’s representative attended the hearing.

8. The applicant was assisted with an interpreter in the Hindi and English languages. She advised she could conduct the hearing in English and was advised that at any time she needed to use the interpreter she should and to advise whenever she did not understand something, which she did on a number of occasions. At regular intervals the Tribunal checked that she was understanding the proceedings.

9. At the hearing the applicant was given until 21 March 2023 to respond generally and to the s.424AA information raised at hearing. On 21 March 2023 the Tribunal wrote the applicant a s.424A letter with a response due on 24 March 2023. An extension of time to respond request was granted.

10. Submissions were provided on 5 April 2023 and 17 May 2023.

11. The issues to be considered in this case are as follows.

    ·Is the applicant credible as to her claims?

    ·Does the applicant have a well-founded fear of persecution in relation to India and meet the refugee protection provisions of the Act?

    ·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?

    CRITERIA FOR A PROTECTION VISA

12. The relevant criteria for a protection visa are outlined in the Appendix.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following.

    ·The applicant’s protection visa application dated 27 July 2016, including identity documents and claims outlined within the application.

    ·The applicant’s statutory declaration dated 22 March 2012.

    ·Medical report from [Dr B] dated 1 March 2012.

    ·Psychological report from Forensic Psychologist [Ms C] dated 14 February 2012.

    ·Court documents in relation to the  court matter filed by the applicant’s father, [name] in India including

    oFirst Information report submitted 26 May 2012 against the applicant’s ex-husband and his parents, sisters-in-laws on the basis that the applicant was mistreated on account of insufficient dowry and as she was required to bring more dowry as well as a Honda car.

    oProclamation and declaration by the court dated 1 March 2013 declaring the applicant’s’ ex-husband and his parents proclaimed persons.   

    ·Evidence the applicant was previously married to [Mr D] on 12 May 2005 with the marriage dissolved on 1 August 2009 as he deserted her.

    ·Submission from the applicant’s representative dated 9 January 2017 including references to country information regarding honour killings in India, violence against people whom the society considers as transgressing the values of society and violation against women in India, as well as  why the applicant is a member of a particular social group and why the applicant cannot obtain state protection in India.

    ·Oral evidence provided by the applicant at the Department interview held on 9 June 2017 and the Tribunal hearing held on 6 March 2023, including oral submissions made by the applicant’s representative.

    ·Letter from [name], Advocate dated 23 February 2023 noting he appears for the applicant’s father in the FIR referred to above noting the applicant’s ex-husband and his parents have been declared proclaimed persons. He notes that as these persons are proclaimed, still at large and have not been arrested there is a reasonable apprehension of threat to the safety of the applicant. It is submitted that it is in the interest of her safety that she be allowed to stay in Australia.

    ·Letter from [Dr E] dated 22 February 2023 from [named] Hospital noting that the applicant’s father is [age] years, suffering from carcinoma of prostate for which he has been operated and is undertaking chemotherapy on a regular basis. The Doctor notes his health is weak due to his illness and that he is unable to protect his daughter against the declared proclaimed offenders and has a threat to her life from her in-laws.

    ·Court documents noting the applicant’s ex-sister-in-law [Ms F] is absent dated 10 November 2014.

    ·Court documents noting that the applicant’s ex-husband and ex-parents-in-law are not present and declaring them as proclaimed persons dated 30 January 2013.

    ·Applicant’s statement to the Tribunal signed and dated 4 April 2023 provided in response to the section 424A letter and matters raised at hearing.  

    ·Attachments to Applicant’s statement:

    oAdvice of Court result from the NSW Local Court dated 26 March 2012.

    oArticle from the Times of India titled ‘Justice Karnan had termed 33 judges ‘corrupt’, got six months jail’ dated 2 August 2020.

    oArticle from LinkedIn titled ‘Corruption with Indian Judicial System’ dated 29 July 2022.

    oArticle from Reuters titled ‘Police charge Indian high court judge with bribery’ dated 4 March 2011.

    oArticle from Outlook Stories titled ‘Corruption is rampant in the lower courts’ dated 5 February 2022.

    oArticle from Outlook Stories titled ‘Eight of the last sixteen Chief Justices of India were definitely corrupt’ dated 3 February 2022.

    oArticle titled ‘Prashant Bhushan and the corruption allegations against CJIs’ dated 15 August 2020.

    oFamily Violence Referral Form with interview date 19 April 2013 .

    oIndependent expert’s opinion dated 17 May 2013 (with marking on page 40).

    oFamily Violence Assessment from [Psychology clinic] to MRT with interview date 29 January 2015.

    oIndependent expert’s opinion dated 3 February 2015.

    oFirst Information Report initiated by the applicant’s father dated 26 May 2012.

    ·Death certificate of the applicant’s father issued 9 May 2023.

    ·Department of Foreign Affairs and Trade (DFAT), Country Report India,10 December 2020.

    ·Department of Foreign Affairs and Trade (DFAT) Thematic Report Indian State of Punjab, 7 December 2016.

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Is the applicant credible as to her claims?

    The applicant’s claims

15. In her application for a protection visa dated 27 July 2016 the applicant claims to face serious harm including killing, torture, degrading and inhume treatment from her ex-husband and his family because of family violence. She claims if she moves to other parts of India her ex-husband’s family and relatives will find out and harm her. She claims she did not apply for protection sooner as she hoped she would obtain a visa on the basis of family violence from her ex-husband. She also claims a fear of harm from Indian society as a twice divorced single woman from the male chauvinist India society. She claims as a single divorced woman she will be targeted and would face sexual harassment in other parts of India as well and she would be forced into sexual trade and would be trafficked to other countries to engage in sexual slavery. She claims she would be considered as a morally corrupt female due to her failed previous marriages and her stay in Australia without her husband.

16. She claims her father and mother are sick and old and they cannot protect her. In relation to state protection she claims that she fears if she sought help that the Indian police would take advantage of her due to her status as a divorced single woman.

17. In her statutory declaration dated 22 March 2012, previously provided in her application for a spouse visa on family violence grounds the applicant claims to have suffered mental and physical torture at the hands of her ex-husband and his family following her second marriage on 23 November 2009. The applicant went to live with her in-laws once married and claims to have been treated badly whilst there. She claims her ex-in-laws told her they were expecting a car from her parents and everyone started to torture her including her  ex-sister-in-law but her husband was supportive at that time even though his family pressured him to abuse her. She claims her husband returned to Australia on 3 January 2010. She claims that his family ordered her around, screaming at her and she was forced to cook and clean for her in-laws, was not allowed to contact her family, was tortured mentally and was slapped by her ex-mother-in-law. She claims she tried to contact her family in the bathroom on 26 November 2009, so nobody could hear but her mother-in-law banged the door and started screaming and she became scared and her mother-in-law took her phone. She claims she cried a lot, her ex-mother-in-law screamed at her and she hit her again. She claims her sister-in-law also screamed and hit her. She claims she was threatened to be killed if she revealed any of the mistreatment to her family. She claims her ex-husband initially supported her but later could not stand up to his parents. She claims her visa was granted on 28 April 2010 and her father paid for the ticket to Australia as her ex-in-laws would not. She claims her ex-mother-in-law hit her on other occasions telling her not to say anything to her son. She departed for Australia on [date] July 2010 and arrived [date] July 2010.

18. The applicant claims she suffered further abuse once she arrived in Australia and started living with her then husband and brother-in-law. She claims that her brother-in-law told her she has to do everything he said or she would be deported back to India. Her ex-husband did not stand up for her. She claims a few days after her arrival her ex-brother-in-law would sneak and peek in their room and take videos of her on his mobile phone, sometimes during the night or while she was changing. She claims there were no locks on the door. She said she asked her then husband why he cannot do something. She claims violence, mental and physical torture started and sometimes her husband would slap her. She claims there were several instances where her husband and brother-in-law physically assaulted her. She claims they took away her passport and did not give her access to money or her jewellery, locked her inside the house when they went out of the home and did not give her access to a phone to contact people. She claims the mistreatment increased when her ex-parents-in-law came to Australia  in April 2011 to visit and domestic violence increased daily and she was treated like a servant. One such occasion was on 12 May 2011 where the applicant claims her ex-brother-in-law hit her in the stomach while she was pregnant causing a miscarriage. She claims she showed her husband the test and her mother-in-law flushed the test; they did not believe her then her ex-brother-in-law hit her. She claims they did not give her food and she started bleeding. She claims in July 2011 her in-laws went back to India and then she was hit much by her then husband and brother-in-law and this was noticed she was taken to the Indian grocer. She claims one day she went for a walk and told a lady everything, posted a letter to her Dad, called immigration and told them everything but they asked her to go to the police. She claims then they were scared and her ex-brother-in-law put his hand over her mouth, grabbed her and threw her on the bed and then they called the neighbours and said she fought with them. She claims she doesn’t know when her husband took her to the councillor and she was taken forcefully and her husband warned her not to say anything against him. She notes nothing happened from October to December 2011 and then on 14 December 2011 the Department sent a letter for her residency and then they reported her to the police.

19. The applicant’s representative in a submission dated 5 January 2017 claims the applicant is at risk of harm from her ex-husband, his family and his extended family and the village panchayat and its agents and referred to her claim of seeking divorce from an abusive husband. He refers to honour killing being a  problem in India and as India is a patriarchal society women continue to face harm. He claims the applicant  will be harmed by others in the community via Kangaroo Courts or Khap Panchayats, who deem themselves responsible for upholding and enforcing traditional Hindu customs and values, as she is a woman who has been divorced twice. He further submits that she will not be able to obtain support or protection from local authorities due to her societal status as a divorced woman. Rather, he submits that authorities, such as the police will take advantage of and harm her because of this. Although her father is a well-known senior solicitor, he notes he is now old, retired and ailing. He therefore will not be able to support or protect her.

20. Her representative submitted she would suffer persecution for the following cumulative reasons

    ·Women in India

    ·Indian woman facing honour killing, assault and acid throwing

    ·Indian females who are considered as transgressing traditional Indian customs and values

    ·India Hindu female facing family and social violence

21. Her former representative submitted that due to the ongoing human rights problems in India and political and religious stability and social hostility to woman who transgress traditional norms there is no meaningful option to relocate or obtain effective protection. Her representative submitted links to country information regarding the violations against women, including honour killings and acid attacks, the lack of legal status of women in India exposing them to vulnerability and inconsistent treatment and outlined information as to numerous acts of violence against women and the lack of effectiveness of the police and judiciary.

22. At the Department interview held on 11 January 2017 the applicant reiterated her claims to fear return to India at the hands of her ex-husband and his family and as a divorced/single woman. The following is a summary of the evidence given as to why she fears return to India.

    ·Her mother and father live in [City 1], with the bottom floor rented.

    ·Her father is a  retired lawyer who has his own practice.

    ·To pay the dowry he took a loan. He has been trying to recover the dowry but has not been able to.

    ·Her family has supported her financially in the past when she left her husband and moved to [City 2] in 2011, specifically by her parents and her sister who sent her money from [Country 1] at least 2 times. Her sister and her sister's husband own a [business] in [Country 1]. Her brother is also [a Country 1 citizen]. She spoke to him the day before the interview.

    ·As to why she needs a protection visa, she said she is concerned about her ex-husband and his parents because there has been no final decision on the case that  has been filed against them. She said her ex-in-laws ran away and are in hiding. She said that they have been declared proclaimed offenders and have been in hiding since. She said when the police find them, she will be punished and arrested. She said her ex-husband’s sister is in the same city (in [City 1]) with her husband.

    ·She said there is no one to support her as her father is retired and no one to fight for her. She said the community and the police take advantage of a girl in her situation and she might be assaulted or anything. They will take advantage of her helplessness.

    ·As to why she cannot return to India, she said  that there is no one in India to support her as even her father cannot anymore as he is old and she has had two failed marriages and will be taken advantage of . She said people will also look at her and say "her marriage has failed two times”. When asked for details she said that there is no one to support her and you need the support of your family and her parents will not be able to support her.

    ·When asked if there was anything else; she said she fears her ex-husband’s parents who are in hiding and she said that they can do anything.

    ·She last had contact with her ex-husband and his parents in 2011 after they came to Australia. She said she has had no contact with her ex-husband since then or his parents or his family.

    ·Her in-laws have run away from where they were renting and they are wanted by the police. Only her sister-in-law and her husband now live in that same city. Her in-laws are "proclaimed offenders ·· - and "the police will find them” and

    ·Her ex-husband’s family in India can take advantage of her and they can hire a detective to find where she is.

    ·They can harm her, throw acid as they are still feeling that they want to take revenge.

    ·When she was in India, they tortured her so if they know she's there, they'll do anything and if a person gives  money to the police, they can do anything, such as sexually harass her

    ·Conditions in Australia are different, in India a girl it is not safe because anyone can take advantage including ex-family.

    ·There is no one to support her, no men to support her so how can she support herself.

    ·When asked on a number of occasions whether she had anything to add, she said her brother-in-law tried to take advantage of her in Australia but as she was in Australia nothing can happen but they can do anything in India and harm her in many ways, including throwing acid on her as they have feelings of revenge. She said if they come to know she is in India they can do anything to her and if money is given to the police, the police can do anything include sexually harassing her.

    ·When asked if she had anything further to add, she said the conditions in Australia are very different, in India a girl is not safe.

    ·She said she has put forward all her claims for protection and again referred to the fear of revenge in their mind.

1. Her representative made the following submissions

   ·That her ex-husband and his brother obtained an AVO which was dismissed and this clearly shows their revenge mentality in the mind of her ex-husband and his family which should be taken into account should she return to India.

   ·The applicant's ex-husband and his family may not have taken revenge yet because they are concerned it will affect their immigration status but as soon as the applicant returns to India, they will take action against her.

   ·In India there are non-state actors that can inflict violence on the applicant such as acid violence. There is no point seeking law enforcement after the fact.

   ·The applicant's brother-in-law might be scared that her allegation of sexual assault might affect his application for permanent residence in Australia and so has not done anything yet.

   ·The penalty for Dowry theft is 6 months - 2 years, and her father has taken action under the Dowry Act. However, despite the proclamation by the court the police have taken no steps which shows there is no state protection in India.

   ·Her treatment on return meets the definition of degrading and inhumane cruel treatment.

2. At the Tribunal hearing held on 6 March 2023 the applicant claimed to fear harm at the hands of her ex-husband and his family due to action against them by her father to reclaim the dowry as well as action taken to defend herself against the AVO. She also claimed to fear harm on return from the general society as she would return as a divorced single woman and a woman who has transgressed Hindu values as she is divorced.

3. The applicant confirmed she completed a Bachelor [degree] in India in 1999 and completed 2 jobs there, both for 1 month each in [customer service] and helping her father’s [friend]. As to her first marriage, she said she was married in 2005, her husband left for [Country 1] about 1 month later and around 2007 she realised he was already married, initiated a divorce which finally happened on 1 August 2009.

4. As to her family in India, she said her mother and father are there but her uncle has died. She said her mother is a housewife. She said  until recently her father was working as a  lawyer but he had an operation for his prostate last month which stopped him working. She confirmed he was a lawyer working in the civil and criminal areas. She said she does not know her cousins and many have died or have moved from place to place.

5. She said her parents have moved from the house where she was born and now live in a smaller place which is all on one floor, being better for their age. She said her brother urged them to move. She said her mother cannot walk properly.

6. She said her brother and sister are [Country 1] citizens and live there. She said her brother works for her sister and brother-in-law as they own a [business] in [Country 1]. The Tribunal asked if her family had  ever financially supported her and she answered in the negative as to financial support but they talk. When the Tribunal questioned this as she had said at the Department interview, that she had received family support she then said her brother-in-law sent her money in 2011 when her marriage ended but none since then.

7. In Australia she said she works full time in [Industry 1] and lives in a rented place in [City 2].

8. She said she last saw her ex-husband in 2011 and has not seen him since. She said she has not talked to any of his family since then. She confirmed she has not spoken or had contact with her ex-husband or his parents, brother or sisters since the end of the marriage in 2011.

9. As to whether she faced any difficulties in India prior to her current marriage to [Mr A], she said as she was living with her father, she was alright.

10. As to what she fears will happen on return; she referred to the case that has been filed against her ex-husband, parents-in-law and sister-law by her father. She said she will be harmed by her ex-parents in law, brother-in-law and sister in-law. She said all of them have been declared proclaimed and they cannot find them.

11. She said none of her ex-husband’s family have had  any contact with her father since the end of the marriage in 2011. She said her older sister-in-law, [Ms G] is still in India and has been attending the case but they do not know where [Ms F], her ex-husband’s younger sister is.

12. She said if she returns there will be pressure on her not to pursue the case. The Tribunal questioned this when they have had no contact with her since 2011 and no contact with her father since 2011 and this is particularly relevant as he is the one bringing the case against them for return of the dowry.

13. It raised with her via s.424AA that the movement records indicate her parents-in-law are Australian citizens and have been residing permanently in Australia since December 2011, her ex-husband has not been to India since 2013 and is an Australian citizen and her brother-in-law has been in out of Australia flying direct to India. It questioned if her ex-husband and ex-in-laws and family are in Australia whether she is at any risk of harm on return to India as they are in Australia and as she has had no contact with them since 2011 in Australia. It questioned whether she is of any interest to her ex-husband and his family. It raised with her whether she faces a real chance of serious harm and real risk of significant harm on return at the hands of her ex-husband and his family for any of the reasons she claims

14. She said her ex-sister-in-law [Ms G] is in India and she has been in contact with her father but the Tribunal questioned this as inconsistent with her previous evidence. It also referred to her evidence at the Department interview where she had said there had been no contact since the end of the marriage. She said she wasn’t referring to them seeing or speaking with him.  The Tribunal raised that as her father is bringing the action in India it may expect he would face difficulties if the family was seeking revenge as claimed. It asked if her father has not faced difficulties in India why she would on return to India.

15. She said she also feared return due to the stigma of being a single divorced woman and having had  two failed marriages. The Tribunal raised with her that she appears to be from a good family, with a lawyer father, who had support from her family, living in the city. She said her parents are old now and cannot look after her and she would face difficulties from society. She said she has no other family in the Punjab or India. The Tribunal repeatedly asked what difficulties she would face and she said from being married twice and it asked her again what difficulties she would face and from whom.  She said from Indian culture and she  said if she goes for a job or housing, she will be treated badly as a single/divorced woman. She said her parents cannot support her. The Tribunal again noted her parents own their own home, and she said they don’t have their own money, are old and her brother is supporting them. She said her father is [age] years and her mother [age] years. The Tribunal questioned whether there is a real chance of serious harm and real risk of significant harm on return to India as she is a single divorced woman or for any of the groups she has claimed. Later in the hearing it again asked the difficulties she would face and she said she would not be treated well and that they would try and take advantage of her.

16. The applicant then said the case is going on and her ex-sister-in-law has been to jail and is out of jail because of the action brought by her father and the Tribunal questioned this as credible as it is the first time this has been raised. She said she didn’t say it before but now when questioned  she has referred to it. She said she did not want to discuss it before. It also questioned why this has not been raised previously at the Department interview when she was asked for further evidence and she said she has only just gone to jail and been released. It also raised via s.424AA that at the Department interview she did not refer to a fear of harm form her ex-sister-in-law and her husband despite being asked for any further claims or evidence on a number of occasions

17. The Tribunal raised with her via s.424AA the detail surrounding her application for a spouse visa,  how after her ex-husband advised the Department the marriage had ended that she claimed family violence which was  rejected by two independent experts. It outlined the Department refusal and Tribunal’s affirmation on the grounds of the reports from the independent experts. It raised with her the relevance and the findings of the two independent experts within the meaning of family violence which its considered relevant. It outlined the inconsistencies in her evidence in the reports of the independent  experts as to family violence and questioned whether she faced family violence and whether she is a credible witness as to these claims.

18. It also raised a number of further concerns including via s.424AA, which where relevant are outlined below and following her request she was given until close of business on 21 March 2023 to respond.

19. On 10 March 2023 the Tribunal wrote the applicant a s.424A letter outlining her ex-husband’s and his family’s immigration status and movements and that her father is a practising barrister. It also noted he was connected to the Indian Congress party and held a prominent position in [City 1].

20. The applicant provided the following post-hearing statement in response to concerns raised at hearing and the s.424A letter:

    I refer to my pending protection visa and provide following statement in support of my review application. Prior to responding to the concerns raised by the Tribunal, I wish to bring the following to the attention of the Tribunal which I believe will persuade the Tribunal to believe me as a credible witness.

    In addition, as a female who experienced family violence, I have undergone mental trauma and due to that there could be some inconsistencies in my family violence partner visa case.

    First of all, India is still male chauvinist country where females are expected to simply accept the decision of the males without questioning them. If a wife challenges or perceived to be challenging the authority of the husband or husband’s relatives, that particular woman would be considered as a characterless woman and will be exposed to all forms of degrading treatment and punishment including honour killing and acid violence.

    With due respect I note that I have provided correct information regarding my relationship with my ex-husband [Mr A] and what had happened to me and what will happen to me. It should be noted that [Mr A] did not disclose to me or to my parents at the time of marriage that he is divorcee. My marriage was solemnized with [Mr A] 23^rd November 2009 in India, and I was called by [Mr A] my ex-husband after the marriage from Australia. His brother [Mr H] was also living here as an Australian citizen. After the marriage when I was there in Australia both the brother [Mr A] and [Mr H] registered a case against me under the Domestic Violence Act and in December 2011 I was arrested in that case. It was done by them before filing the Ex-Party Divorce in the FEDERAL CIRCUIT COURT OF AUSTRALIA and an Ex-party Divorce was granted on Fourteenth day of September 2014. The Local [Court] dismissed that application, and I was discharged from all the charges. The Court also has revoked AVO pending against me at that time.

    Now the question is why they lodged a false case against me and what was the reason behind it. I respectfully request the Tribunal to consider the following questions which I believe will persuade the Tribunal to form the view that the people who wanted to harm me have revenge mentality.

    Why my ex-husband and his relatives lodged a domestic violence case against me?

    Why they took such a serious step to request for an AVO against me?

    What happened to the charges and the AVO.

    Whether it is reasonable and logical to form a view that the charges were filed to intimidate and harass me.

    The sole reason for lodging the AVO against me is a clear evidence which supports my protection visa claim because they lodged the AVO application for the sole reason to threaten, intimidate and harass me. It shows that they have serious and active revenge mentality against me. This revenge mentality will not go unless from their perspective that I would be seriously punished for exposing their inhuman and degrading treatment towards me. Fortunately, thanks to the Australian judiciary and the Police, the charges against me were dismissed and the AVO against me was revoked. (attachment 1) It should be noted that though finally I was able to prove my innocence, however, I experienced significant emotional trauma. They did it to break my moral resistance. If they can do this in Australia by bringing false charges against me to intimidate, harass and inflict psychological harm to me, I respectfully request the Tribunal to consider what they can do in India where I would not have the protection similar to Australia. My ex-husband’s relatives and friends there and through those connections, they can do anything. Also, my ex-husband or his parents do not need to be present in India to take revenge against me because they have their relatives and friends who would be able to do as per the instructions.

    His family is not doing anything because violence against women is a serious offence under the Australian law and the Australian authorities will immediately apprehend and charge them and they can not get away simply from the justice system in Australia.

    It should be noted that police and the Judiciary, particularly local judiciary in India are inherently corrupt and the Police do not have the manpower to protect people like me. As a patriarchal society, Indian society treats women as subordinates, often often ill-treated, abused and brutalized. This is the society where I will be ended up with. It is unreasonable and in fact dangerous to expect a person like me to return to India to lead a safer, dignified life in India. I now leave it in the hands of the Tribunal to consider my situation and take a decision based on my personal situation. I enclose relevant country information in support of this. (Attachment 2)

    I note that in the Independent Expert Report [Dr I] dated 17 May 2013, the psychologist noted that notwithstanding the inconsistencies, it is likely that I did experience incidents of family violence. It is another evidence that I suffered family violence but unfortunately, due to strict interpretation on family violence related Migration purpose, I was not able to satisfy that particularly element. Nonetheless, the report of [Dr I] at least supports my credibility that I suffered family violence. (Attachment 3)

    
    
    

    In his report Independent expert [Dr J] dated 03 February 2015, relevantly noted that the relationship between my ex-husband’s brother and me was at times abusive. This is another evidence that I experienced violence form my ex-husband’s family and fear it will further escalate if I returned to India where my family has lodged a case against them. (attachment 4)
    
    

    I note that in his affidavit to the Federal Circuit Court dated 12 November 2014, my ex-husband said I lodged a case against him in India which he said unfair and very expensive. This is another evidence that he believes that as a result of my cases in India, he and his family have to spent money which is also another reason for him to develop revenge against me.

    
    
    

    The reason I mentioned the above is that it at least corroborates my fear and claims on what had happened to me and why I reasonably believe that in a foreseeable future, it will happen to me.

    
    
    

    Now I address the issues raised in the Tribunal letter dated 10 March 2023.

    Concern 1

    [Mr A] my ex-husband is an Australian citizen, and I knew this fact. The information from the Tribunal is not clear whether he travelled to India. If he had travelled to India, the Tribunal letter would have mentioned it. On that basis, it is reasonably to form a view that he did not travel to India. I note that the reason he did not travel to India confirms my credibility that since there is an ongoing case against he did not want to travel to India. Therefore, I genuinely believe that he would continue to have angry mindset against me because he is unable to travel to India. It supports my claim.

    [Mr H] my former brother-in-law is also an Australian citizen and I knew this before my marriage. However, I did not know about his travel history because I separated from my ex-husband and his family in 2011. The Tribunal has advised that he in fact travelled to India. Though the relevance of this information is not clearly mentioned in the Tribunal letter, however, I assumed that if he has a case, how he would be able to go and leave India. It should be noted that [Mr H] is not one of the accused persons mentioned in the First Information Report lodged by my father. I note that I have already sent the FIR to the DOHA and to the AAT. (Attachment 5)

    The tribunal has advised that [name] my former father-in-law, [name] former mother-in-law, [Ms F] former sister-in-law have been in Australia since December 2011. Based on the Tribunal letter, I am inclined to form the view that none of them have ever travelled to India since that period. This in fact significantly supports my case. The reason they did not return and could not return to India is due to the ongoing case my family lodged against them. I note that any reasonable minded person will form a view that my family’s cases have prevented them to go and come back from India and therefore, it must have caused and created and developed angry on me. As a result of that ongoing anger, there is a real possibility my ex-husband and his family will continue to have the revenge mentality against me. Their anger will continue unless they take revenge against me. Therefore, if I returned to India now or in a foreseeable future, I will be targeted and seriously harmed to teach me a lesson to me and my parents.

    On the basis of the above resolve and submission, I respectfully submit that I have provided true and genuine information the Department and further submit that my fear of harm that I will; be targeted and killed in real now or in a foreseeable future.

    Concern 2

    It should be noted that my parents are old and my father has undergone treatment for prostate cancer surgery and still he is under the treatment of the doctors and he is again going for GALLBLADDER CANCER and he needs further treatment including surgery. It is pertinent to mention here that my father is ill and his age is [age] years old and my mother is an old lady of [age] years. My brother [name] who is living in [Country 1] is supporting them financially. The certificate issued by the concerned hospital and doctors is self-evident related to my father’s health.

    Though my father is a lawyer, however, due to his health condition and age, he is fragile. When I said retired, that means that he reached the retirement age. I note that for a legal practitioner, the law allows them to practice as long as they wish because they are private practitioners. My father is currently engaged in private practice looking after my case only because he feels that as a father, he is duty bound to do that. Based on the above, I respectfully submit that I did not provide any misleading or incorrect information to the department.

    Apart from facing serious harm at the hands of my ex-husband family and friends, I also fear I will face degrading, inhuman and cruel treatment in India from the conservative Indian society.

    I note that Indian society is very conservative, and I will face significant social ostracism and severe discrimination due to my status as divorced woman. Now at present after divorced I am living here in Australia peacefully and paying the all the taxes and from last one year I am having permanent job in [Industry 1] and I am fully satisfied with my life while serving in [Industry 1]. So kindly accept my request and grant a visa to me live in Australia.

    I hope that I have answered the concerns of the Tribunal and request the Tribunal to consider my claims individually and cumulatively and recognise me as a refugee.

    Assessment of the credibility of the Applicant’s claims

1. As to the applicant’s credibility, while the Tribunal has, as detailed below, concerns regarding the credibility of her evidence as to her claim to continue to face harm and threats from her ex-husband and his family, it accepts she will face difficulties as a member of the social group of ‘divorced or single women from Punjab without male protection’ on return to India.

2. Specifically it finds due to the consistency in evidence and documentation before the Tribunal the following:

   ·The applicant was born in and always lived in [City 1], Punjab, India until she departed for Australia on [date] July 2010. She lived in [City 1] with her parents until she married [Mr A] on 23 November 2009 and then moved to live with his family.

   ·She has been married and divorced twice; the first time to [Mr D] on 12 May 2005, divorcing on 1 August 2009 and the second time to [Mr A] on 23 November 2009, divorcing on 14 September 2014.

   ·Her brother and sister are [Country 1] citizens and have lived there permanently for many years. She has no siblings living in India.

   ·Her father was a leading barrister in [City 1] and Member of the Congress party. He died on [date] April 2023.

   ·Her only remaining family in India is her mother, who is old and unwell. She lives in [City 1] and  is supported financially by her son.

   ·Following her marriage to [Mr A] on 23 November 2009 she moved and lived with his family. [Mr A] lived there with her until he travelled to Australia in January 2010. The applicant applied for a visa on 25 February 2010 on the basis of her relationship with [Mr A].

   ·The Tribunal accepts her ex-husband’s family treated her badly when she lived with them until she departed for Australia in July 2010, slapping her when she lived there as that they were highly motivated by financial gain wanting more dowry. This was accepted by the independent expert who reviewed her claim of family violence.

   ·On travelling to Australia on [date] July 2010 she lived with her ex-husband, [Mr A] and his brother, [Mr H].

   ·On 29 December 2011 the applicant’s ex-husband contacted the Department and advised the relationship had ceased and he no longer wished to sponsor the applicant.

   ·In December 2011 the applicant’s ex-husband sought an Apprehended Violence Order (AVO) against the applicant and she was charged with assaulting him. The Court subsequently dismissed these charges and the AVO.

   ·Around this time the applicant moved to [City 2] and was assisted financially in 2011 by her family but has not been since. She is currently working in [Industry 1].

   ·In January 2012 the applicant claimed to be a victim of family violence and sought a partner visa. In an assessment by an independent expert[3] dated 17 May 2013 [Dr I], found the applicant had not suffered relevant family violence[4] on the basis of inconsistencies in her evidence. [Dr I] however noted that:

   [3] Migration Regulations 1994

   1.21 Interpretation

   independent expert means a person who:

   (a)   is suitably qualified to make independent assessments of non-judicially determined claims of family violence;

   [4] Migration Regulations 1994

   1.21 Interpretation

   relevant family violence means conduct, whether actual or threatened, towards:

   (a)the alleged victim; or

   (b)a member of the family unit of the alleged victim; or

   (c)a member of the family unit of the alleged perpetrator; or

   (d)the property of the alleged victim; or

   (e)the property of a member of the family unit of the alleged victim; or

   (f)the property of a member of the family unit of the alleged perpetrator;

   that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

   it is likely the applicant did experience incidents of family violence within the context of the discordant union but I do not believe she experienced persistent fear or that any alleged violence significantly affected hr well-being.

   [Dr I] also noted that the applicant’s distress is more from the relationship ending and the shame of it being the failure of her second marriage, as opposed to any alleged family violence.

   The delegate found the applicant did not meet the criteria for a partner visa.

   The applicant applied to the Tribunal (differently constituted) and an assessment was conducted by [Dr J] who in 2015 similarly concluded the applicant had not suffered relevant family violence[5]. He noted that it is likely the relationship was fractious, one characterised by mutual conflict and a discrepancy in the expectation of husband and wife.  He noted that it cannot be concluded that the applicant held a reasonable fear of her ex-husband.

   Both independent experts in their reports outlined numerous inconsistencies in the applicant’s claims of difficulties faced at the hands of her ex-husband and his brother which the Tribunal raised at the 2023 hearing.

   The Tribunal accepts the findings of these reports as to whether the applicant faced relevant family violence as defined in the Act.

   On the basis of these reports it is of the view she has exaggerated the difficulties she faced.

   ·On 26 May 2012 the applicant’s father commenced a  criminal complaint in India against her ex-husband, his parents and siblings for return of the dowry based on domestic abuse. As neither her ex-husband or his parents attended Court, they were entered as proclaimed persons and a warrant of arrest was issued.

   ·The applicant’s ex-parents-in-law and sister have been in Australia since [December] 2011 and are Australian citizens, as is the applicant’s ex-husband who has only travelled outside of Australia from [August] 2013 to [September] 2013. Her former brother-in-law, [Mr H] is also an Australian citizen and travelled to India in 2019/20.

   ·The Tribunal accepts she is a member of the social group “divorced or single woman from the Punjab without male protection”. It accepts her father has died, her brother lives in [Country 1] and her mother is old and unwell. It accepts she has not lived outside [City 1] and has not been to India for over 13 years. It accepts she has little financial support and no male protection or support in India were she return to India.

   ·As to the applicant’s delay in applying for a protection visa, the Tribunal accepts that this was because she was pursuing the claims for a partner visa and draws no adverse inference as a result of the delay.

   Does the applicant have a well-founded fear of persecution in relation to India and meet the refugee protection provisions of the Act?

   [5] As outlined above.

3. The applicant has claimed if she returns, she will be at risk of serious harm including killing, and torture, and degrading and inhumane treatment at the hands of her ex-husband, his brother, parents and his sister, [Ms G] who continues to reside in [City 1]. However, for the reasons that follow the Tribunal does not accept that she is of any interest to her ex-husband and any of his family as a result of the dowry case, as she accused her ex-husband of family violence or for any of the reasons she claims. Significantly, she has had no contact with her ex-husband or his family since 2011 despite them living in Australia since that time and the Tribunal is of the view if she was of any interest to them, they would have made at a minimum some contact. Further, as they are now Australian citizens and live in Australia, apart from [Ms G] and have not returned since 2011 and cannot as they are proclaimed persons, it is remote that she will face a real chance of serious harm or real risk of significant harm from any of them if she returns to India. Further, she gave evidence to the Department and the Tribunal that her ex-husband and his family have had no contact with her father since 2011, despite him initiating the Court case. The Tribunal  is of the view if her ex-husband and his family wanted to seek revenge for the reasons she claims they would have at a minimum contacted and threatened her father since 2011 or had someone do this. When this was raised at hearing the applicant said her ex-sister-in-law [Ms G] is in India and she has been in contact with her father but the Tribunal views this as inconsistent with her previous evidence. The Tribunal is of the view if her father has not faced difficulties or even been contacted in India when he  initiated the Court action, she would not on return to India.

4. While the Tribunal accepts that the applicant suffered some difficulties in the manner accepted above prior to the end of the marriage in 2011 at the hands of her ex-husband and his family, it is of the view she has exaggerated the difficulties faced based on the inconsistent evidence provided to the two independent  experts who interviewed her to determine whether she faced relevant family violence.

5. On the basis that the applicant has exaggerated the difficulties she faced and that neither she nor her father has had any contact since 2011 with her-ex-husband or any of his family, even though his sister lives in [City 1] and her ex-brother-in-law has visited India, it does not accept she is of any interest to them. It follows that it does not accept the applicant will face a real chance of serious harm or real risk of significant harms at the hands of her ex-husband or any of his family or anyone else at their request were she return to India now or in the foreseeable future due to the court action and request for the dowry return or for any of the reasons associated with her marriage to her ex-husband.

6. Notwithstanding  the above, the Tribunal accepts that she will return to India as a member of the social group of “ divorced or single women from the Punjab without male protection.”

7. Under s.5J(1)(a) of the Act, 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. Section 5J(4) indicates that such a reason or reasons must constitute at least the essential and significant reason or reasons for the persecution.

8. Section 5L outlines the core requirements of  a particular social group and they are that there must be a characteristic shared by each member of the group, other than a fear of persecution, the characteristic must be one of three specific types and the applicant must share, or be perceived as sharing, the characteristic. Satisfaction of the definition requires that the group satisfy either a ‘protected characteristic’ or ‘social perception’ approach, determined by the nature of the characteristic.[6]

   [6] Supplementary Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014, p.9 at [42].

9. The Tribunal accepts that “divorced or single women from the Punjab without male protection” constitute a particular social group. This is because women are differentiated as an identifiable group by their gender, and further, single women and divorced women are identified by their single status, and by their divorce which is an innate and immutable characteristic as is being from a  certain area and without male protection.

10. The latest DFAT report[7] notes on the treatment of women generally in India that:

    The constitution provides a number of guarantees in relation to women’s rights, including equality of treatment between men and women (Article 14); prohibiting difference in treatment between men and women on the grounds of race, religion, caste, sex or place of birth (Article 14); and the right to live with human dignity (Article 21). India is a party to most of the core international human rights conventions (see Human Rights Framework), including the Convention on the Elimination of all forms of Discrimination against Women (CEDAW. India’s Supreme Court guidelines on sexual harassment in the workplace draw on CEDAW, and legislation relating to violence against women is contained within the Indian Penal Code (IPC), civil laws and special laws. These include the Dowry Prohibition Act (DPA) (1961), the Indecent Representation of Women (Prohibition) Act (1986) and the Commission of Sati (Prevention) Act (1987).

    [7] Department of Foreign Affairs and Trade (DFAT), Country Report India,10 December 2020

11. However, it notes that despite this plethora of laws, in practice violence against women in India continues throughout the life cycle of a woman and can include, sexual, domestic and dowry related violence.[8]

    [8] Department of Foreign Affairs and Trade (DFAT), Country Report India,10 December 2020

12. The report notes the following:

    Although, in general, urban women from higher class and caste backgrounds tend to have better access to legal protections, these women may still be pressured by family to hide family violence for fear of maligning their family’s honour and reputation. Other factors that may affect the situation for a woman experiencing 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 women across society, but particularly in rural areas and from lower castes, face a moderate risk of societal discrimination and violence. This can include sexual, domestic and dowry-related violence. The COVID-19 pandemic has highlighted the risk of domestic and family violence towards women in India. Longstanding traditional values and gender roles can restrict the participation of women in the workforce and community, and impact their inheritance rights and access to health and mental health care.[9]

    [9] Department of Foreign Affairs and Trade (DFAT), Country Report India,10 December 2020

13. The DFAT Thematic Report Indian State of Punjab dated 7 December 2016 notes the following as to the treatment of women in that state.

    Sexual harassment is highly prevalent in Punjab (as in other states). Several credible diplomatic and human rights sources told DFAT that women in Punjab are highly likely to regularly face some form of sexual  harassment in public, including inappropriate staring, touching, verbal harassment or worse. In extreme cases, women who have rejected the advances of men may be subjected to serious assault, including possible acid attacks. For example, six teenage girls reportedly had acid thrown over them while walking home from school in Gurdaspur district in March 2016. The attacker had repeatedly harassed one of the girls over a long period of time prior to the attack.

    Serious sexual assaults are highly prevalent in Punjab. On 27 April 2016 a 26-year-old mother of  three children was gang-raped in her home in Ludhiana (a city in central Punjab) and died after being thrown  off the roof by the perpetrators. According to media reports, in the 45 days prior to this incident 15 cases of  sexual assault of girls under the age of 12 were reported in Ludhiana alone. These cases included a 26-yearold man who was arrested for the attempted rape of a three-year-old girl.

    While serious sexual assaults are increasingly attracting media attention and condemnation from the community, a great deal of community apathy remains and many people do not recognise the prevalence of attacks.

    ……..

    Women are also greatly underrepresented in the Punjabi labour force, even in the context of low  female labour force participation in India as a whole. According to the IMF, Punjab has the fourth-lowest female labour force participation rate of all Indian states and union territories at around 10 per cent. While  some women serve in positions of power at the state and national level up to and including the level of  Prime Minister, women tend to be significantly underrepresented in key positions in both government and business in Punjab. At the 2012 state legislative assembly elections, 14 women were elected out of a total of  117 seats. The caste system and socio-economic factors intersect with gender discrimination to create  significant barriers to female participation in employment and in society.

    DFAT assesses that woman in Punjab face a high risk of domestic violence and sexual harassment,  and a moderate risk of serious sexual assault. DFAT further assesses that woman in Punjab face a high risk of societal discrimination throughout their lives.

14. The 2020 DFAT report notes that single women reportedly make up 21 per cent of India’s female population, at around 73 million which includes unmarried, divorced, separated and widowed women.[10]

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

15. Country information indicates that single women are vulnerable and often marginalised in India. Information indicates that single women have to "depend [on] somebody's goodwill – in-laws, parents, brothers and sisters-in-law" in order to provide for them and their children (IndiaSpend 23 June 2018). In an article in the Hindu, an Indian daily newspaper, Sreemoyee Piu Kundu, [a columnist on sexuality and gender (IndiaSpend 23 June 2018)] who interviewed 3,000 single urban women in India, states that single women encounter "serious struggles with basic life issues such as getting a flat on rent or being taken seriously.[11]

    [11] IND106275.E India: Situation of single women and of women who head their own households without male support, including access to employment, housing and support services, particularly in Delhi, Mumbai, Chandigarh and Bengaluru; women's housing, land, property and inheritance rights (2017-April 2019) Research Directorate, Immigration and Refugee Board of Canada, Ottawa

16. The following refers to the treatment of divorced women in India.

    Divorced and separated women are stigmatised. The number of divorced women in India has doubled over the past two decades, but still remains low at only 1.1 per cent of women.[12] In India, the  default regime after divorce is separation of property, and the right to maintenance is weakly  enforced.[13] A survey of 405 separated/deserted and divorced women, covering mostly urban areas across the country, found the majority to be dependent on their families, particularly parents and brothers, in terms of financial support and living arrangements after separation.[14] If they had some income, it was not sufficient for them to live on their own or independently with their children. [15]The rate of re-marriage was low.[16] Relocation within India for single women, women with children or  victims of domestic violence can be difficult because of the need to provide details of their husband’s  or father’s name in order to access government services and accommodation.[17] There are laws or customs relating to the ownership of assets and land that accord women little control over land use,  retention, or sale,[18] while single women also face difficulties finding housing[19]A government-run  Swadhar Greh Scheme aims to cater for the primary needs of women in difficult circumstances,  including women who are deserted and without any social and economic support.[20]

    [12] ‘Progress of the World’s Women 2019-2020: Families in a Changing World’, UN Women, 25 June 2019, p.56, 20190801094953

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

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

    [15]  ‘Progress of the World’s Women 2019-2020: Families in a Changing World’, UN Women, 25 June 2019, p.127, 20190801094953; 'IND106275.E - India: Situation of single women and of women who head their own households  without male support, including access to employment, housing and support services, particularly in Delhi, Mumbai, Chandigarh and Bengaluru; w omen's housing, land, property and inheritance rights (2017-April 2019)', Immigration and Refugee Board of Canada, 3 May 2019, 20200313175945

    [16] Progress of the World’s Women 2019-2020: Families in a Changing World’, UN Women, 25 June 2019, p.127, 20190801094953; 'IND106275.E - India: Situation of single women and of women who head their own households  without male support, including access to employment, housing and support services, particularly in Delhi, Mumbai, Chandigarh and Bengaluru; w omen's housing, land, property and inheritance rights (2017-April 2019)', Immigration and Refugee Board of Canada, 3 May 2019, 20200313175945

    [17] 'DFAT Country Information Report India', Department of Foreign Affairs and Trade (DFAT), 10 December 2020, p.65, 20201210103716 ; 'IND106275.E - India: Situation of single w omen and of women who head their own households without male support, including access to employment, housing and support services, particularly in Delhi, Mumbai, Chandigarh and Bengaluru; w omen's housing, land,', Immigration and Refugee

    [18] 'Country Reports on Human Rights Practices for 2021 - India', United States Department of State, 12 April 2022, p.44, 20220413121422

    [19] 'IND106275.E - India: Situation of single w omen and of w omen who head their ow n households without male support, including access to employment, housing and support services, particularly in Delhi, Mumbai, Chandigarh and Bengaluru; w omen's housing, land, property and inheritance rights (2017-April 2019)', Immigration and Refugee Board of Canada, 3 May 2019, 20200313175945

    [20] Country Policy and Information Note India: Women fearing gender-based violence’, UK Home Office, July 2018, p.41, OG9EF767935; 'IND106275.E - India: Situation of single w omen and of women who head their own households without male support, including access to employment, housing and support services, particularly in Delhi, Mumbai, Chandigarh and Bengaluru; women's housing, land, property and inheritance rights (2017-April

1. The UK Home Office Country Policy and Information Note: Women Fearing ender based violence India published in November 2022[21] notes that some women may be at more risk of persecution or serious harm, including those who are seen to have transgressed social, cultural and religious norms, or are single and living alone, or belong to a Scheduled Caste or Tribe. It notes that single women can face discrimination and stigma, including from family, and barriers in accessing education, health and owning property. It outlines that the main issue for single women is to be able to survive, and to be able to survive with dignity and that 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. It refers to advocates noting that ‘Widowed, divorced, separated, or deserted women and women from ‘other’ religions are far more likely than any other women to report having experienced sexual violence.’ It refers to  2020 article on single women in India by the South China Morning Post, a Hong Kong-based newspaper partly focused on news coverage in Asia which notes that ‘Indian society is still largely rooted in patriarchy and gender inequality, with single women often stereotyped as choosy, morally loose or headstrong, according to Patricia Uberoi, a Delhi-based sociologist. “The idea remains that a single woman unaccompanied by a male [relative or spouse] poses a risk to herself, to family honour and to society at large,” she said. “Though many women now and in the past have broken the stereotype, they have done so at their own risk.”’ It notes that a  2020 article by The Week noted that: ‘…In the absence of a male partner and/or abandonment by their families, they often face sexual and gender-based violence.’ [22]

   [21] Country policy and information note: Women fearing gender-based violence, India, November 2022 (accessible) - GOV.UK ( Country policy and information note: Women fearing gender-based violence, India, November 2022 (accessible) - GOV.UK ( >

   It quotes from a 2022 opinion piece published by the Globalist that:

   Currently, women are not safe when they are out and about on their own, on the streets or on public transport. It is also difficult for single women to rent accommodation without being subject to extensive intrusive questioning[23]

   [23] The Globalist, ‘About us’, Country policy and information note: Women fearing gender-based violence, India, November 2022 (accessible) - GOV.UK ( >

   It refers to an article by UN Women on divorce in India and quote from the report that:

   While divorce in India is granted equally to women and men, the sigma [stigma] and setbacks for women are severe once they decide to decide to dissolve their marriage. Therefore only a few women take the route of divorce in India…The country has one of the lowest divorce rates in the world. India’s low rank on global divorce rate indices isn’t due to happier marriages but the existence of orthodox societal pressure. The primary reason why it is difficult for Indian women to get out of troubled marriages is the existence of patriarchal structures in a society that still holds their worth as that of the family they marry into. In conventional and religious families, equality among genders also remains an alien concept.

   ‘India is intrinsically a divided nation in terms of economic and social structures and, hence, even though women in urban metropolitan cities might opt for a divorce, women from marginalized sectors try to avoid it in fear of the stigma it might bring. Sexism, especially in informal workplaces, also leaves women with few options to work and sustain their families post-divorce.[24]

   [24] UN Women, ‘India and the Philippines – The right to divorce’

2. 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. The 2020 DFAT[25] report notes the following with regard to the relocation of single women.

   The Aadhaar Card provides access to government social welfare services, benefits and subsidies (see Unique Identification Numbers (UID) / Aadhaar) and its introduction may assist entitlement portability. However, requirements to provide details of a husband’s or father’s name can exclude single women, single women with children, and domestic violence survivors from government services and accommodation. While income tax provisions do not directly require women to use their husbands’ or fathers’ names, the Aadhaar card and passport both have this requirement.

   Local sources told DFAT safe relocation for women and girls fleeing domestic or family violence within Indian states or elsewhere in India is practically impossible. There is limited availability of shelters/centres and, even where they are available, it is important to consider the situation a woman will face upon leaving such centres, where social support networks are unlikely. According to local sources, some women fleeing domestic violence stay in shelters for more than 10 years. There is little ability of state and NGO resources to reintegrate these women into the community. Sources in West Bengal told DFAT that, due to a shortage of women’s shelters, women from other states seeking

   Local sources advised relocation would generally be possible for a single woman without children, who was able to access accommodation and support networks, or who was educated, skilled or wealthy enough to support herself.

   [25] 'DFAT Country Information Report India', Department of Foreign Affairs and Trade (DFAT), 10 December 2020

3. On the basis of the above the Tribunal finds that that the 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. As a divorced or single woman from the Punjab without male protection in Punjab, the Tribunal finds from the independent information that that the applicant is particularly at risk of sexual harassment, sexual assault and societal discrimination and that these forms of harm cumulatively amount to serious harm. The Tribunal accepts the applicant face a real chance of serious harm if she returns to Punjab in the foreseeable future as a divorced or single woman without male protection. The Tribunal finds that the essential and significant reason for the harm feared is the applicant’s membership of a particular social group.

4. The DFAT Thematic Report, Indian State of Punjab notes that the police force is corrupt with a low capacity, and are able to act with impunity and the Tribunal finds that effective protection measures are not available to the applicant in the Punjab.[26]

   [26] Department of Foreign Affairs and Trade (DFAT) Thematic Report Indian State of Punjab, 7 December 2016

5. As to whether a real chance of persecution relates to all areas of India, the Tribunal accepts that the applicant has no family or community support outside of Punjab. The most recent DFAT report assesses that women including single women with children have limited access to internal relocation options. However, it advised relocation would generally be possible for a single woman without children, who was able to access accommodation and support networks, or who was educated, skilled or wealthy enough to support herself. The country information identifies limits in accessing services as divorced/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. The country information considered by the Tribunal indicates that access to services for divorced and single women is better in urban than in rural areas. The Tribunal is satisfied that, if she returns to an area of India other than Punjab in the foreseeable future, the applicant will face lack of family and community support and a lack of financial resources. It has accepted she has no connections or family outside the Punjab, has never lived elsewhere in India, she has no male support in India since the death of her father and she has lived in Australia since 2010 having to work to support herself. It accepts while her family supported her in 2011 when she had nowhere to live, since then she has provided for herself, and has limited other resources. The DFAT report indicates that these factors all impact on a single or divorced woman’s capacity to relocate to another area of India. Other country information considered by the Tribunal indicates that the applicant would have difficulty accesses housing without her father or husband’s details, of which she has neither. This amounts to a denial of access to basic services which would threaten her capacity to subsist. Other information refers to sexual harassment and violence against divorced or single women without male protection in employment and out of the home. While in itself not meeting the definition of serious harm it notes she will face significant stigma as a member of the group ‘divorced or single woman without male protection from the Punjab’ were she to relocate to other areas of India. The Tribunal finds that together these factors cumulatively amount to serious harm. 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 member ship of the group “divorced or single woman from the Punjab without male support”.

6. Information indicates that the effectiveness of the India police is limited by lack of resources[27] and corruption remains a problem[28]. Information indicates citizens face substantial obstacles in the pursuit of justice, including demands for bribes and difficulties getting the police to file a First Information Report, which is necessary to trigger an investigation of an alleged crime.[29] The Tribunal therefore finds that effective protection measures are not available to the applicant in India.

   [27] As outlined in DFAT Country Information Report India, 10 December 2020 from 5.6 to 5.11

   [28] As outlined in DFAT Country Information Report India, 10 December 2020 at 2.31 and 525 'Freedom in the World 2022 - India', Freedom House, 24 February 2022, section F2, p.14, 20220225091144

   [29]  'Freedom in the World 2022 - India', Freedom House, 24 February 2022, section F2, p.14, 20220225091144

7. 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[30] 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. DFAT assesses in its most recent report[31] 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. The Tribunal finds that the applicant is vulnerable to sexual violence as a “divorced or single women from the Punjab without male support”. This is particularly so as she has never lived there and has no connections to Nepal. The Tribunal finds that the applicant has a well founded fear of persecution as a divorced or single woman from the Punjab without male protection in Nepal.

   [30] DFAT Country Information Report Nepal, 1 March 2019.

   [31] DFAT Country Information Report Nepal, 1 March 2019.

8. Information indicates that the effectiveness of the Nepalese police is limited. Information indicates that the Nepalese Police are hindered by a lack of adequate transport, training and equipment. Police are less competent at maintaining law and order in rural Nepal in comparison to urban centres. Police effectiveness is limited by lack of resources, corruption, nepotism and a culture of impunity, particularly among low-level officers. Low pay, excessive work and poor morale have resulted in staff shortages.[32] The Tribunal therefore finds that effective protection measures, are not available to the applicant in Nepal.

   [32] DFAT Country Information Report Nepal, 1 March 2019.

9. Therefore, based on all the evidence above, the Tribunal finds the applicant has a well-founded fear of persecution as defined in s 5J of the Act. Therefore, she meets the meaning of ‘refugee’ set out in s 5H of the Act.

10. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).

    CONCLUSIONS

11. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Gabrielle Cullen
    Member

    
    

    ATTACHMENT A

    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.

    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.

    …

    
    

20190801094953

20190801094953

Board of Canada, 3 May 2019, 20200313175945

2019)', Immigration and Refugee Board of Canada, 3 May 2019, 20200313175945

Country policy and information note: Women fearing gender-based violence, India, November 2022 (accessible) - GOV.UK (

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1713266 (Refugee) [2023] AATA 3214

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