1813143 (Refugee) - [2023] AATA 4556

1813143 (Refugee) [2023] AATA 4556 (25 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBER:  1813143
COUNTRY OF REFERENCE:                   India
MEMBER:Kate Chapple
DATE:25 October 2023
PLACE OF DECISION:  Brisbane
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 25 October 2023 at 11:32am
CATCHWORDS
REFUGEE – protection visa – India – membership of particular social group – divorced woman with mental illness – childhood with mostly absent father and strictly religious but caring mother – arranged marriage as young adult ceased after arriving in Australia – student visa ceased and period as unlawful non-citizen – relationship with partner from different country and religion ceased – parents’ disapproval, likely verbal and emotional abuse, pregnancies, termination and miscarriage – fear of honour killing – mental health and treatment – death of mother – country information – low risk of official discrimination and moderate risk of societal discrimination because of mental health, exacerbated by status as divorced woman – real chance of serious harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AFA16 v MIBP [2018] FCA 628
Makouei v MIMA (unreported, FCA, Wilcox J, 6 February 1998)
Selvadurai v MIEA (1994) ALD 346
Subramanian v MIMA (unreported, FCA, Carr J, 10 March 1998)
SZTEQ v MIBP (2015) 229 FCR 497
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 dependants.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application lodged 18 January 2017.
Applicant’s statutory declaration dated 17 January 2017.
Medical treatment receipts relating to the applicant’s pregnancy termination on 18 April 2016.
2013 and 2017 online news reports regarding honour killings in India.
[Country 1] Visitor Visas dated 6 October and 24 October 2017 issued to the applicant’s mother and father respectively.
Australian Department of Home Affairs Visa (3 month visitor visa) grant notices dated 5 April 2018 issued to the applicant’s parents.
Other departmental records:
7.1.Decision record relating to the delegate’s refusal decision.
7.2.Case file.
7.3.Internal records relating to the applicant.
Application for review
Application for review lodged 5 May 2018.
Email dated 24 October 2018 from the applicant to the Tribunal advising of relationship breakdown with former partner and pregnancy to former partner.
Email dated 26 October 2018 from the applicant to the Tribunal advising of miscarriage.
[Hospital 1] Discharge Referral dated 14 April 2019 relating to the applicant noting diagnoses of anxiety, depression and mouth…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1813143 (Refugee)

Details

AGLC: 1813143 (Refugee) [2023] AATA 4556
Case: [2023] AATA 4556
Decision Date: 25 October 2023

CaseChat Overview and Summary

The applicant sought a protection visa, claiming a well-founded fear of persecution in India due to her status as a divorced woman with a mental illness, and the potential for honour killings. The dispute concerned whether Australia had protection obligations towards the applicant under section 36(2)(a) of the Migration Act 1958 (Cth), which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The matter was before the Tribunal for review.

The primary legal issue before the Tribunal was to determine if the applicant possessed a well-founded fear of persecution as defined by the Migration Act. This involved assessing whether the applicant's fear of harm in India, stemming from her mental illness and divorced status, constituted persecution for membership of a particular social group, and whether there was a real chance of such persecution occurring in all areas of India. The Tribunal also considered the available country information regarding the risks faced by individuals with mental health conditions and divorced women in India, and whether effective protection measures were available to the applicant.

The Tribunal's reasoning focused on the definition of a "particular social group" and the assessment of a "well-founded fear of persecution." Drawing on the provided DFAT country information, the Tribunal noted that while official discrimination against those with mental illness was assessed as low, societal discrimination was moderate. This risk was exacerbated by the applicant's status as a divorced woman, a group that can face stigma and hostility in traditional Indian society. The Tribunal also considered the risk of honour killings, which can occur when a woman seeks to divorce or separate from an abusive husband, and the inadequacy of state protection in cases of violence against women. Ultimately, the Tribunal was satisfied that the applicant faced a real chance of suffering serious harm, meeting the criteria for a refugee under section 36(2)(a) of the Act.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958 (Cth).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The DFAT Country Information Report dated 29 September 2023 provides (inter alia) as follows:21.1.[2.23] Sources told DFAT the number of mental health workers is not sufficient to service demand. There is a shortage of trained mental health workers which, in practice, means that not everyone who needs care can access it. Mental health care is more likely to be accessible in large cities, while healers and other non-professionally qualified people may provide care in rural areas. 21.2.[2.24] Meeting with a counsellor or psychologist is strongly associated with shame for many Indians. This often means that patients will delay treatment until the problem becomes severe, and perhaps will not even seek treatment then. The stigma associated with poor mental health makes it difficult for mental health professionals and patients to build rapport or discuss issues or solutions effectively. 21.3.[2.25] Mental health is not widely discussed in India, as a result, mental health literacy is low. It is possible that many people are unaware of their mental illness, or lack the knowledge or vocabulary to discuss mental health. Family is a critical aspect of Indian life and culture, and not all families are accepting of members who are living with mental illness. This stigma and taboo extends to employment and education, and those with mental illness are often ostracised at work or school. 21.4.[2.27] DFAT assesses that people living with mental illness and/or neurodiversity face a low risk of official discrimination, except to the extent that they may not be able to access appropriate healthcare. This is true of many Indians with various medical issues, as outlined in the section on healthcare. Indians living with mental illness and/or neurodiversity face a moderate risk of societal discrimination.21.5.[2.38] Social welfare is traditionally provided within the family and many Indians rely on family for support in times of need. It is common for Indian families, even in poor and remote areas, to save what they can in physical cash or jewellery, which might be for the payment of future dowries or family emergencies.21.6.[2.41] Most Indians in poverty would attempt to find work in the informal sector to meet their immediate needs if possible. Social housing programs are inadequate to meet demand in large cities, many of which have high housing costs. While the middle class is rising quickly, as inequality gaps intensify, many people nevertheless live in makeshift homes and slums. DFAT assesses that while social welfare programs might exist, eligibility is complex and access should not be assumed. If eligible, a person will most likely need to supplement those payments or subsidies to meet living needs.21.7.[3.10] The constitution prohibits religious discrimination and guarantees the right to freely practise religion and the right for religions to manage their own affairs. The constitution guarantees the right to propagate a religion except where that would affect the operation of some state laws.21.8.[3.12] Research by the Pew Research Center published in June 2021 found that 84 per cent of people say that to ‘be truly Indian’ it is important to respect all religions. The same research found that more than 85 per cent people in each of six major religious groups surveyed (Hindus, Muslims, Christians, Sikhs, Buddhists and Jains) felt that they were free to practise their own religion, and most of those agreed that other religious groups were similarly free to practise their religions. According to the survey, communal violence, while often high-profile events that are covered extensively in the media, are not day-to-day issues for most Indians.21.9.[3.63] DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence. This may be because most Sikhs live in Punjab, which is a majority Sikh state, and Sikhs outside of Punjab have strong communities based around their places of worship. However, DFAT is not aware of violence or discrimination commonly occurring against Sikhs in other parts of India.21.10.[3.117] Given high levels of diversity and the sheer size of the population, it is difficult to give an overall assessment on women in India. Generally speaking, and noting the below subsections, women experience a low risk of official discrimination and a moderate risk of societal discrimination and violence.21.11.[3.124] ‘Honour killings’ occur when families feel that the honour of their family is jeopardised, often where a woman’s virginity or ‘marriageability’ is ‘lost’, for example. Such violence may also occur when women seek to divorce or separate from an abusive husband. Honour killings can occur regardless of age, religion, social status, wealth or other factors – the risk is particular to each individual victim and their families.21.12.[3.131] Violence against women is a significant problem in India and state protection is often inadequate. Sources told DFAT that police commonly refuse to register cases or investigate claims of violence, including violence that results in grievous bodily harm or death. DFAT assesses violence against women is common, and depends on several factors, including the family of the woman. Violence against women affects women of all socio-economic, caste and language distinctions. DFAT assesses that women experience a moderate risk of sexual harassment and assault in their day-to-day lives.21.13.[3.135] The number of women who are single by choice or circumstance is rising, however Indian society can be very traditional and can be hostile to the unmarried, whether they are single because of divorce or widowhood. Single women can experience stigma and stereotypes, for example perceptions of being ‘choosy, morally loose or headstrong’, according to a Delhi-based sociologist who spoke to the South China Morning Post in November 2020. The Print, an Indian online newspaper, noted a ‘growing subculture’ of single women as characters in books and movies or within organisations, in July 2019. DFAT notes that the number of single women is growing, however assesses the phenomenon is nascent. DFAT assesses that single women experience a moderate risk of societal discrimination and a low risk of official discrimination.21.14.[3.142] DFAT assesses the treatment of people in interfaith and inter-caste marriages varies according to the families involved. It can range from approval in some families, to disapproval, ostracism, harassment, or violence.21.15.[5.22] In general, internal relocation is a practical option for most people seeking escape from violence related to marriage choices but this would be limited by the factors discussed above. For women, relocation might involve becoming a single woman.21.16.[5.23] DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. The Australian Government through the Department of Home Affairs is required to notify Indian authorities prior to the arrival of escorted removals from Australia but does not track returnees after their arrival in India. Home Affairs does not routinely notify Indian authorities of unescorted returns and removals. UK Home Office reporting notes tracking and surveillance systems appear limited. DFAT assesses that failed asylum seekers are unlikely to encounter official discrimination upon return.CONSIDERATION OF CLAIMS AND EVIDENCE

Decision

Reasons for decision

The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.Kate ChappleMemberATTACHMENT ASummary of applicable lawThe criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (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.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).Relevant extracts from Migration Act 19585 (1) Interpretationcruel 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 familyFor 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 familyFor 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.

Ratio Decidendi

Legal Principle Established

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