1806813 (Refugee)

1806813 (Refugee) [2019] AATA 6786 (12 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1806813
COUNTRY OF REFERENCE:                   India
MEMBER:Anne Grant
DATE:12 November 2019
PLACE OF DECISION:  Melbourne

DECISION:In relation to the first-named applicant, the Tribunal remits the matter for reconsideration with the direction that the first-named applicant satisfies s.36(2)(aa) of the Migration Act.
In relation to the second named applicant, the Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 November 2019 at 11:25am
CATCHWORDS
REFUGEE – protection visa – India – social group – inter-caste relationship – fear of harm from ex-husband’s family – family law proceedings – child in India – threats of harm from in-laws – history of domestic violence – personal and vindictive nature of ex-husband – connections of ex-husband – lack of family/financial support – lack of protection from persecutors – complimentary protection – second named applicant not in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 June 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 27 April 2016. The delegate refused to grant the visas on the basis that although the first-named applicant had a real chance of being seriously harmed by the relatives of her ex-husband if she returns to [Town 1], she would not face such a chance of harm in a state of India away from [Town 1]. In relation to complementary protection, the delegate found that the first-named applicant was able to reasonably relocate to avoid a real risk of significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first-named applicant arrived in Australia [in] March 2011 as a tourist. She left the country and returned [in] June 2011 as a tourist. She left the country again and returned [in] January 2012 as a dependent on a Class TU Student visa (the primary holder being her husband, [Mr A].) Her visa was later extended however [Mr A] ceased study on 22 December 2015.
On 28 April 2016, the application for protection was lodged.
At the time she claimed protection, the first-named applicant was married and her husband ([Mr A]) was included as a member of the same family unit as the first-named applicant in her protection visa application, as was their daughter, the second-named applicant herein. However the first-named applicant and [Mr A] subsequently separated. He left Australia [in] March 2018 and [in] August 2018, a (differently constituted) Tribunal made a decision in his case on affirming the refusal of his visa because he was no longer ‘in Australia’ as required by s.36(2) of the Act.
At the time [Mr A] left Australia, he took the second-named applicant with him without the consent of the first-named applicant. The child remains in India and is the subject of family law proceedings there in which the first-named applicant is attempting to obtain custody of her daughter.
In her application for protection, the first-named applicant claimed to fear harm from her husband’s family in India. She claimed that she had received life threats from her in-laws and believed that she would be harmed, tortured, and harassed (physically and emotionally) upon her return to India. She outlines that she was born in Trivandrum, Kerala State but has lived, attended school and attained higher education for her whole life in [Country 1] where her parents lived. She had spent minimal time in India. The first-named applicant claimed that her in-laws have physically and emotionally harassed her since she married due to her being a ‘lower caste’ in Christianity as compared to her husband. It was expected that her parents’ wealth (as people living and working overseas) would bring a lot of dowry and personal wealth to her husband’s family. When this didn’t eventuate, she was abused, physically harassed and mentally tortured. They told her husband not to enter their house unless he has divorced her. She feared having to return to that situation if she returns to India. The first-named applicant claimed that police in India do not get involved in domestic issues for cultural, political and religious reasons. Complaining against your own family brings shame on the family and her husband’s family – making a bad situation worse. The first-named applicant claimed that she had no family members in India, as her parents at that time were in [another region]. Her husband is the only son so does not want to move to a different part of India. She would be unable to live in another part of India by herself, let alone having a decent career or life.
Prior to the hearing, the first-named applicant submitted copies of a large number of court affidavits, documents and statements related to proceedings commenced in the Kerala courts, in India. Those documents demonstrate clearly that [Mr A] has commenced divorce proceedings against the first-named applicant, and seeks to retain full custody of his daughter. Amongst other allegations, [Mr A] claims that the first-named applicant was unfaithful, of bad character, and that she failed to meet her obligations to him in marriage. In response, the first-named applicant has lodged multiple objections, responses and affidavits claiming that, inter alia;
·[Mr A] and his family have a history of domestic abuse and violence against the first-named applicant;
·That [Mr A] has threatened and harassed members of her family in India, causing them to withdraw support for her and leading to the alienation of the first-named applicant from her own family;
·[Mr A] has been subject to an arrest warrant after the most recent court proceedings (September 2019) because he physically assaulted and verbally abused the first-named applicant in the vicinity of the court house and in front of witnesses;
·[Mr A] has been the subject of intervention orders whilst living in Australia due to repeated domestic violence incidents when the first-named applicant and he were together and including multiple breaches of same even after they had separated;
·[Mr A] was imprisoned for two weeks in Australia for assaulting the first-named applicant. It was immediately after his release from that period of custody that he left the country with their daughter;
·[Mr A] has made multiple threats to the first-named applicant, members of her family and also to her lawyer to kill her if she is in India;
·[Mr A] has claimed to be well connected to local politicians and to police, and that he can easily ‘get to’ the first-named applicant;
I have taken into consideration the documents provided by the first-named applicant, which disclose that the Kerala courts have made numerous orders and judgements in her case, including prosecuting [Mr A] for failing to attend court as required and also for assaulting and threatening to kill the first-named applicant. The most recent court orders reflect as follows:
·[In] September 2019, [a court], [City 1] in Kerala State directed that steps be taken for the arrest of [Mr A] after taking into consideration that he had performed activities that led to the harassment of the first-named applicant and threatening to attempt her murder.
·[In] September 2019, [City 1] [Court] decided that the first-named applicant could be granted full custody of the child “if the petitioner has a valid permanent visa in Australia or can permanently live in Australia, so that [name deleted] can be taken to her birth country, Australia, on a valid permanent visa.” The court noted that a ‘visa processing hearing’ was to be held [in] October 2019 and the order from that hearing to be produced at the next hearing.
According to a letter from [Ms B], the first-named applicant’s lawyer, the final hearing is now listed [in] December 2019 and the first-named applicant has ‘a very good chance of being granted the permanent custody of her daughter at that hearing’. [Ms B] has also provided a letter stating that [Mr A] had threatened and abused both her and the first-named applicant during the proceedings. The first-named applicant’s aunt and sister have also sworn affidavits alleging that he had threatened the first-named applicant (and them if they supported her) with harm over the period on which legal proceedings have been underway.
At hearing, the first-named applicant confirmed that she fears being returned to India because she will be harassed, assaulted, threatened and killed by [Mr A] or members of his family due to the bitter family law dispute, and his sense of shame and belief (and that of his family) that the first-named applicant has ‘destroyed’ his life and chance of living in Australia.
At hearing, the first-named applicant provided copies of several intervention orders and statements from her time in Australia as follows:
·Family violence complaint issued [March] 2017 by police officer [name deleted] against [Mr A].
·Interim Intervention Order made [in] March 2017 against [Mr A].
·Intervention Order made [in] May 2017 until [May] 2018.
·Application for revocation of order made [in] July 2017 in which first-named applicant claims she wishes to live a life together with [Mr A] and that her life is not complete without him.
·Varied intervention order made [in] August 2017 prohibiting [Mr A] from committing family violence against the first-named applicant. (This order does not prevent the first-named applicant and [Mr A] living together.)
·Statement from first-named applicant dated [May] 2018 in which she details events of [Mr A] breaching the terms of the intervention order, assaulting her and abusing her to members of her family. She states that [in] June 2017, he called her and stated that he will not let her live peacefully ever; and that she must go with him straight away to India and get a divorce. She also details how he has denigrated her to members of her church that she is a lesbian and prostitute.
·Statement form the first-named applicant [in] September 2017 in which she describes incidents where she was assaulted occasioning the original intervention order and how later had the terms of the order reduced. She describes how at the beginning of September 2017, [Mr A] became aggressive and obsessive, sometimes calling her up to 28 times a day. [In] September, he told her parents that she was missing when she was just at a friend’s house for her birthday.
·Interim Intervention Order made [in] September 2017 which includes prohibition on [Mr A] committing family violence against the first-named applicant and also from contacting or attempting to contact the first-named applicant, attending at her address etc.
·Intervention Order made [in] October 2017 until [in] October 2018.
In giving her evidence, the first-named applicant noted that, even despite the intervention orders and reports to police, [Mr A] was still able to assault, harass and intimidate her in Australia - where there are strong protections available from Police against such conduct. In India, such protections are weak - as is evidenced by the fact that [Mr A] was so bold as to attack her directly outside and in the vicinity of the Kerala Court and on other occasions had to be removed from hearings due to him becoming abusive. He has shown no respect for the rule of law in India. She believes that he and his family will be easily able to find and harm her (and with impunity) if she were living in India. She is especially vulnerable because she knows no-one in India, has no male support and no family support. She goes to and from court with her lawyer. Each time she returns to India, she moves often from hotel to hotel to avoid detection and is fearful for her safety; but she must be there to prosecute her claims. [Mr A’s] family have never willingly allowed her to have contact with her daughter and so the only time she has seen her daughter since she was taken from Australia is on two court mandated contact periods. On those occasions, her daughter told her that her father had said the first-named applicant was a ‘bad woman’ and told her not to talk to the first-named applicant. She has provided brief audio recordings which I have listened to and which generally support this claim.
The first-named applicant said that women in India are subject to prejudice and are not taken seriously by the courts. We discussed that, on the contrary, her actions had yielded significant gains, and that it seemed that the Kerala Court and justice system (including the police) have taken her case very seriously. After all, she has managed to negotiate the Kerala judicial system reasonably well, given her lack of familiarity with India, its’ cultural and legal traditions. The first-named applicant acknowledged that this was true but noted that, to achieve the outcome so far, she had paid over [amount] to the lawyer representing her from her own resources (that is, without any assistance from her family, from whom she is, for all intents and purposes, estranged.) The matter is not yet finalised. Similarly, if she was not in the country at the critical times in her case, she believes that the courts and the police would have readily dismissed or disregarded her claims. For example, since returning from India last time, she has tried to text and email the Kerala police to ascertain the status of the warrant and charges against [Mr A], but cannot get any response. She believes that is because they deal with and prioritise ‘what is in front of them’ and not people who are overseas.
I have taken into account the volume and nature of the documentary evidence the first-named applicant has provided in support of her claims. I am satisfied that she has substantiated in a compelling manner the long history of abuse and threatening behaviour of her former husband and his family, and that it continues even though he has left the country as he uses the Indian justice system to continue his abusive behaviours. I accept the Indian court documents as genuine and that they are evidence of a bitter and protracted (and at times violent) family law proceedings on foot in India related to divorce and contact issues. I also accept that that the first-named applicant is currently exhausting her resources to regain care of her daughter. Taking into account the intervention orders obtained in Australia, and [Mr A’s] conduct on which they were based, I accept as plausible and credible the first-named applicant’s claims as given to me and as claimed within the Kerala court documents to have been subjected to a long experience of domestic violence, ongoing threats of murder, harassment of the first-named applicant and her family and now the withdrawal from her of any contact with her young daughter. The perpetrators of these harms are her ex-husband and his family.
I am satisfied that the harms feared by the first-named applicant (being killed, significantly harassed, denigrated, and seriously assaulted) are properly considered to involve serious harm, as that term is inclusively defined in s5J(5).
The first-named applicant claims that the reason for the harm is that, despite the marriage being arranged with the agreement of all parties, she is considered to be of a lower caste within Kerala Christian society (Roman Catholic) than [Mr A’s] family (Orthodox Christian). From the outset, she claims that her husband’s family expressed shame at her lower status and refused to accept her into their family, perpetrating abuse on her. Consequently, her husband began to likewise abuse her. She also suggested that women in India are frequently treated in this manner, and that her gender is another reason why he and his family persecuted her without fear of consequences. I have considered these aspects of the first-named applicant’s evidence. I do not disregard these complicating aspects of the first-named applicant’s profile. The evidence before me suggests that [Mr A] is a violent, controlling and abusive man, and that his family demonstrate the same traits. His violent and abusive nature, coupled with the breakdown of their relationship and the shame that it brings on him and his family appear to be the principle motivation for the harms feared by the first-named applicant. I am not satisfied that the first-applicant’s caste or faith are the essential and significant reasons (alone or in combination) for the persecution that she fears. I consider the essential and significant reason for the harms she fears is personal enmity arising from a broken relationship.

I have considered whether the first-named applicant would be refused protection for one or more of the reasons in s.5J(1)(a) of the Act. I note the actions taken on her behalf by both police and courts in India to date, despite the fact that she is negotiating same as a woman without the local language or local cultural knowledge even of a Kerala resident. Whilst I acknowledge significant societal and structural prejudices and barriers facing women in India (as referred to by the first-named applicant and in the general country information), I consider that the best indicator of any prospective future experience is the past experience she has encountered. I am not satisfied that the first-named applicant would be refused protection for any of the reasons in s.5J(1)(a) of the Act.
I am not satisfied that the essential and significant reason for the persecution is one or more of the reasons in s.5J(1)(a) of the Act. Consequently, I find that the first-named applicant cannot satisfy the provisions of s.5J and is not a refugee as defined in s.5H of the Act. She does not satisfy the criterion in s.36(2)(a).
Complementary Protection
The first-named applicant fears significant harm (being arbitrarily deprived of her life, tortured, or subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment) from her ex-husband, his family or other people enlisted by them to cause her harm.
The latest Department of Foreign Affairs and Trade (DFAT) Country Information Report on India, dated 17 October 2018 highlights significant problems in India for women, including in respect to rates of domestic violence. I have considered the following information, which reflects a lack of capacity from police and authorities in addressing the prevalence of domestic violence and in usefully assisting its’ victims.
3.33 Traditional social practices and the low status of women in many parts of India result in domestic and gender-based violence. Child marriage and sati (widowed women committing suicide on their husband’s funeral pyre) are illegal, but both practices continue in rural areas. The tradition of the bride’s family paying a dowry leads to female infanticide, sex-selective abortions and dowry deaths (women murdered or driven to suicide in the attempt to extort a higher dowry). Over 90 per cent of domestic violence incidents are not reported to any formal agency such as police, social workers or lawyers.
3.34 The gang rape and homicide of a young medical student in December 2012 in New Delhi triggered demonstrations across India. Since then, the issue of violence against women has attracted increased attention among the population. Reports of rape, in Delhi in particular, have sharply increased since 2013, although the conviction rate has declined. In 2015, the Ministry of Home Affairs registered over 34,600 cases of rape and over 4,400 cases of attempted rape. The number of cases that go unreported is likely to be much higher. Some women complain that police refuse to file reports of sexual violence. Marital rape continues to be legal.
3.35 According to Human Rights Watch, many women fail to report violence for fear of retribution. Witness protection programmes are not available to victims outside of the state of Delhi. Women who are victims of assaults by men who are well-connected in politics or who have significant wealth, or in cases where the woman is from a lower socio-economic class or caste, may have particular difficulties in having file or investigate reports of sexual assault (see Police).
3.36 In traditional rural areas, senior community members or village committees have reportedly arranged gang rapes of women as punishment for their families’ perceived misconduct in a number of incidents, according to human rights NGOs. According to the Asia Foundation, almost 400,000 women and girls have been abducted in the past decade. Rates are reportedly much higher in northern states with highly unbalanced child sex ratios, and involve women and girls of low castes, especially Dalits. The offenders (sometimes from higher dominant castes) abduct the women and girls for rape, sexual trafficking and forced marriage. Victims and their families generally remain silent due to shame and fear of reprisal. Sources reported a low incidence of police action in these cases, attributed to police bias towards higher castes and a tendency to dismiss the victims due to their lower caste.
3.37 The Protection of Women from Domestic Violence Act (2005) requires the states to provide shelters, counselling services and legal aid to survivors. Local sources claim that women’s shelters in India are run very strictly and do not always provide a safe environment. Shelters were first established to ‘protect’ vulnerable women from prostitution and trafficking rackets; therefore, women who attend shelters (nari gruh, meaning women’s homes) are seen as ‘immoral’ or ‘deviants’ who deserve to be punished. The quality of counselling services is poor and not always available. Sources report a shortage of data on the facilities available across states, and on the experiences of women in state and NGO-run shelters.
3.38 Women from higher socio-economic backgrounds, particularly urban women, are more likely to use the courts as a means of redress and protection from violence related to dowries, though social stigma can be a deterrent. Women in smaller, rural communities are deterred from such action due to the cost and social stigma. Women with higher standards of education have a better awareness of available services and are better placed to access these services. If working, these women are also more likely to be employed in the formal sector with higher legal protections.
3.39 Although, in general, urban women from higher class and caste backgrounds tend to have better access to legal protections, these women may be pressured by their families to hide family violence against them for fear of maligning their family’s honour and reputation.
3.40 Other factors which may affect the situation for women experience violence include the state in which she lives, her class, caste, ethnicity, religion, education and age. Access to services is typically better in urban areas than in rural regions. In addition to the geographic advantages of urban-based communities, education and the standard of literacy has a significant impact on access to services.
3.41 DFAT assesses that women face a low risk of official discrimination. DFAT assesses that women, particularly in rural areas and from lower castes, face a moderate risk of societal discrimination and violence.
I am satisfied that there is a real risk that the first-named applicant will suffer significant harm at the hands of her ex-husband and people associated with him in Kerala State, where he lives and where he and his family have some level of local knowledge and connections. I am satisfied that, if the first-named applicant were to return to live in Kerala State, the information and evidence before me establishes that there is a real risk that she will be subjected to severe physical or mental suffering which is intentionally inflicted on her – such as being arbitrarily deprived of her life, and subjected to physical assault, harassment, emotional and psychological abuse and threats made against her and her daughter. (ss.5 and 36(2A)). After considering [Mr A’s] conduct within the legal process as outlined within the Kerala legal documents, I have some doubt that he is as ‘well connected’ as he claims – but nonetheless – his conduct suggests that he believes that he has impunity from consequences for his violence and threats. In any event, he is doubtless better connected than the first-named applicant to his local community and therefore potentially to the people within that community who may be open to assisting him and his family or furthering his aims of harming the first-named applicant. Even though the first-named applicant’s parents have recently returned to India to live in retirement, they have spent more than 30 years outside of the country and the applicant believes they have moved into a retirement village. Their connections within their home community will logically be relatively weak when compared to those of the first-applicant’s persecutors. Further, the applicant considers herself estranged from them. In this case, I am satisfied that the first-named applicant’s vulnerability to harm both within and outside of Kerala is exacerbated by her lack of any useful community connections throughout India, and also her complete lack of familiarity with local language and custom in Kerala and in wider India, despite it being the place of her birth. In reaching this conclusion, I have also taken into account the general country information about the barriers facing women trying to live independently and to relocate within India as noted by DFAT and also the historically vindictive behaviour of [Mr A] and his family.
The first-named applicant’s ex-husband has demonstrated a perhaps irrational and vindictive desire to pursue and harm the first-named applicant, and to destroy her relationship with her daughter, and has made multiple threats to murder and harm her, either directly or by utilising his ’connections’. He has demonstrated a lack of restraint even whilst in Australia, where he has on multiple occasions perpetrated and threatened acts of violence against the first-named applicant. I consider the first-named applicant’s point about his lack of fear for any consequences in India and his willingness and capacity to find and harm her throughout the country to be well made, taking into account the country information and particularly DFAT’s assessment of the vulnerability and barriers facing single women and mothers trying to relocate and live safely throughout India.
The first-named applicant has never lived as an adult in India. I accept that she speaks only limited local Indian dialect in her mother tongue (because she spoke English in [Country 1] and only her mother has ever spoken her traditional tongue to her.) She has no practical family support of any kind (and no financial support). She has obvious education and work skills which she has attained in Australia but even so, I am satisfied, based on the country information, that she will potentially encounter significant barriers in finding accommodation and employment as a single woman on her own. In the event that she obtains custody of her daughter, she would additionally have a further barrier to negotiate in arranging and affording child care to enable her to work and support herself and her daughter.
I consider that these aspects of the first-named applicant’s personal profile increase the risk of her being located and subjected to significant harm from her ex-husband, his family or people associated with him, even if she were to relocate outside of Kerala State. Bearing in mind the personal and vindictive nature of her ex-husband’s motivation and intent and her unusual vulnerability as a woman unfamiliar with Indian language and custom, I consider that there is a real risk that her ex-husband, his family or people associated with them will pursue and locate her throughout India in order to inflict severe pain and suffering, whether physical or mental, on her – and that this risk is greatly increased if she were to attain full custody of her daughter. I am therefore satisfied that it would not be reasonable (or possible) for the first-named applicant to relocate to an area of the country where there would not be a real risk that she would suffer significant harm.
Whilst I consider that the justice system in India, represented by the Kerala Courts and Police, has been willing to provide the first-named applicant with some protection over the period since she has been trying to regain the care of her daughter, the first-named applicant has still been subject to physical assault, verbal harassment, abuse and threats from her ex-husband, sometimes in the very vicinity of the halls of justice. Hence I am not satisfied that the first-named applicant can obtain protection from the state of India which would mean that there would ‘not be a real risk’ that she will suffer significant harm now or in the future in the event that she is returned to India. I consider that even with the authorities’ best attempts at protection, the country information supports a finding that the first-named applicant is unable to obtain protection from her persecutors in India as described in s.36(2B)(b).
The whole of the evidence in this case establishes that the first-named applicant faces the real risk of significant harm personally from her ex-husband and his family (or people associated with them). The real risk is not one faced by the population of the country generally, as described in s.36(2B)(c).
I conclude that there are substantial grounds for believing that, as a necessary and foreseeable consequence of returning the first-named applicant to India, there is a real risk that she would suffer significant harm. I find that she meets the criteria in s.36(2)(aa) of the Act.
In relation to the second-named applicant, so far as is relevant to this matter, s.36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.
Movement records indicate that the second-named applicant is not in Australia. It appears that she left Australia in her father’s care [in] March 2017. As will be noted above, the information and evidence before me confirms that the child is still in India.
I am satisfied from the circumstances set out above that the second-named applicant is not in Australia. Therefore, she does not satisfy the requirements of s.36(2) and cannot be granted a protection visa.
In relation to the first-named applicant, the Tribunal remits the matter for reconsideration with the direction that the first-named applicant satisfies s.36(2)(aa) of the Migration Act.
In relation to the second-named applicant, the Tribunal affirms the decision not to grant the applicant a protection visa.
Anne Grant
Member

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

[2019] AATA 6786

12 November 2019

Key Legal Topics

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Immigration

Statutory Interpretation

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies