1813143 (Refugee)

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 ulcer.
The Tribunal wrote to the applicant inviting her to attend a hearing on 20 October 2023 and to provide pre-hearing submissions. In response, the applicant provided confirmation to the Tribunal that she intended to participate in the hearing and the document listed in the following paragraphs.
Applicant’s statutory declaration dated 2 September 2023.
Email dated 25 September 2023 from the applicant to the Tribunal attaching [Organisation] assessment and treatment report relating to the applicant (undated) confirming telephone counselling sessions with the applicant commencing 28 May 2020 and test results indicating post-traumatic stress disorder and severe scores for depression and anxiety.
Email dated 25 September 2023 from the applicant to the Tribunal attaching a copy of the applicant’s mother’s death certificate issued by the Government of Punjab [in] November 2020.
Email dated 25 September 2023 from the applicant to the Tribunal attaching a 15 January 2017 text exchange between the applicant and a former friend who the applicant claims was jealous of her relationship with her former partner and told Home Affairs she was lying about the relationship.
Email dated 25 September 2023 from the applicant to the Tribunal attaching a series of photos dated from March 2016 to January 2018 of the applicant and her former partner.
[Hospital 2] Emergency department Discharge Letter dated 10 October 2023 relating to the applicant noting diagnosis of disorder of vestibular function.
The Hearing
The applicant appeared in person before the Tribunal at a hearing on 20 October 2023 conducted in English. The applicant was unrepresented.
The applicant gave evidence, summarised by the Tribunal as follows:
20.1.The applicant was born in Punjab in [Year] where she grew up with her mother and younger brother. Her father was mostly absent, living in [Region], an alcoholic with mental health problems. She doesn’t know what he did in [Region], and doesn’t want to talk about his life; she and her brother were just kids, they didn’t know what was going on with their father in in their parents relationship. Her mother’s brother financially supported the family. Her mother died in 2020 and her uncle died not long after.
20.2.The applicant had some contact with extended family while in India, and for a time they lived with one of her father’s sisters, however since coming to Australia she’s had no contact.
20.3.The applicant was brought up in the Sikh religion. Her mother was strictly religious and to please her mother she went with her to temples and festivals. The applicant was never committed to the faith and as she grew older she wanted to explore other religions.
20.4.The applicant was very close to her mother who put her children’s welfare ahead of her religious beliefs. The applicant is also very close to her brother who lives in [Country 1]; he is aged [Age], a [Country 1] citizen, a former [Occupation] and now runs his own [business].
20.5.The applicant completed to year 12 at school. Because of the problems with her father, her paternal aunties decided that she would marry. The future husband and family members on both sides came together to meet one another and have a ceremony, and the marriage was approved. The applicant was aged 18, having just left school. Her husband was about 4 years older, also a Sikh, and he was working in his family’s business. They had not previously known one another. They married in [Year]; the wedding ceremony was conducted in a Sikh temple, a small number of family members attended, and there was a celebration afterwards. At the time the applicant was too young, she thought getting married was her best option because her father was not around to support her financially or emotionally.
20.6.The Tribunal asked the applicant if she had a copy of the marriage certificate. She said she assumed it had been given to the Department when she applied for a student visa to Australia because her husband came out on the same visa as her spouse.
20.7.The paternal aunty the applicant and her mother and brother lived with for a time used to talk to the applicant about leaving India. The applicant and her husband decided to come to Australia soon after they were married. Once married, it is the husband’s responsibility to look after the finances. The applicant’s husband left the family business and financed their move to Australia. The applicant planned to study [Subject]; her husband planned to work toward their life goals.
20.8.The applicant’s marriage did not last. She was very young and confused, the differences between them were too great across many issues, and it got worse over time. After being together in Australia for a few months, they started talking about going their separate ways.
20.9.The applicant referred to an incident that occurred in the classroom in India when she was aged 17. She said she had not told anyone about the incident until the hearing, not even her mother or the counsellors she had seen in recent years for her mental health problems. She doesn’t know what happened as she was unconscious. She was told by other students who witnessed the incident that she was acting as if possessed; she was shouting and throwing things, they were terrified of her. Afterwards, students didn’t talk to her or sit near her. The applicant was embarrassed that something like this could occur, out of her control. She told her mother she had been unconscious, but not about the episode. Later in life, she did her own research and concluded that she’d had a bipolar episode. She has always been worried that something would trigger another episode.
20.10.The applicant and her husband separated in [Year], she thinks, it’s hard to remember dates. They both realised that staying together wouldn’t be good for either of them. She didn’t tell her mother about the marriage breakdown for some years.
20.11.The Tribunal asked the applicant whether she and her husband had divorced, pointing out that applying for a divorce in Australia in relation to a marriage that occurred overseas is not straightforward, certain conditions must be satisfied, for example one party must be an Australian citizen, or have been in Australia for at least 12 months. The applicant said there was a lawyer involved, she filled out the divorce forms online and emailed them to the lawyer. She isn’t sure whether she has a copy of the divorce paper, she’d have to search back through her emails. She recalls that this happened sometime after the separation.
20.12.The Tribunal read aloud to the applicant paragraph 21 of her January 2017 statutory declaration and asked her to clarify in light of her oral evidence about her first marriage:
They [being your parents] often talk about arranging a Sikh for me, but I keep telling them that I am not serious about marriage yet. This stops them from asking and pestering me but if I was to go back the pressure would be on to marry and I am scared about the consequences.
The applicant said that she was referring to her parents arranging a second marriage for her.
20.13.The Tribunal asked the applicant why she didn’t mention her marriage in her January 2017 statutory declaration. She said she was scared of her partner, she hadn’t at that stage told him about her marriage and knew he would be angry.
20.14.After the separation, the applicant’s life fell apart, she was mentally and physically weak, she couldn’t finish her studies, she couldn’t ask for help from her family, it was the darkest time of her life. Her student visa expired and she was unlawful from 2013 to 2017. She worked for a couple of years to support herself then her brother sent money from [Country 1].
20.15.The applicant hasn’t been able to work much at all over the years. Her bipolar episode haunts her, she believes that being with people in a workplace for 10 hours could trigger another episode. She doesn’t know what to expect of herself. Asked by the Tribunal to describe her mental health now, the applicant said that she experiences episodic depression, anxiety 3 to 4 out of 7 days, isolation, and no friends. Her brother is her best and only friend. They talk on the phone a few times each week. He also continues to support her financially.
20.16.The Tribunal asked the applicant what was upsetting her at the start of the hearing. She said that the anniversary of her mother’s death was only three days before. She died [in] October 2020. Her mother was the most important person in her life, and wanted the applicant to be safe. Her mother told her not to return to India because extended family members had threatened to kill her for being in a relationship with a Muslim. The applicant was devastated not to be able to return to India for her mother’s funeral; she is grateful that spoke to her before she died.
20.17.The applicant has been truthful all her life. If she wanted to use a relationship as a way of staying in Australia, she could have faked a relationship with an Australian citizen, but she didn’t and would never do that.
20.18.The applicant met her former partner, a man from [Country 2], towards the end of 2015, through mutual friends. They instantly clicked. She doesn’t know how long he had been in Australia. He told her he’d been running a [Workplace] in [Country 2] and he was living off the income from that and from renting out [vehicles]. Her former partner was a devout Muslim, but he didn’t care that she was Sikh. He went to the Sikh temple with her and she went to the mosque with him. As time went by, the applicant tried to learn more about Islam by watching YouTube.
20.19.The relationship was intense and romantic. They moved in together in early 2016; they didn’t really think it through properly, they couldn’t not be together. Things were good for 6 to 7 months, then mutual friends started causing trouble and fights. Her former partner was hot-headed and short-tempered, and arguments began. They thought they were forever, they didn’t talk about separating.
20.20.The applicant and her former partner applied for protection together in January 2017. She hadn’t been mentally well enough until then to apply. Her former partner knew about the visa system and how to apply.
20.21.The applicant’s parents visited her in Australia in April 2018 for a few months, after having spent time with her brother in [Country 1]. The Tribunal asked why the applicant’s father came given her evidence that he’d been absent for most of their lives in India. She said he was still their father. The applicant’s mother wasn’t educated, she didn’t know about the visa system; they didn’t talk about the application for a protection visa. The parents lived with the applicant, and her former partner went to live with a friend because living together wouldn’t have been acceptable to her parents.
20.22.The applicant didn’t tell her parents about the relationship, but somehow they found out and confronted her. Her father who had never been there for the applicant behaved like he had every right to speak against the relationship. She told him he didn’t have the right. However, her mother was always there for her, she was like a best friend, so she felt she must explain herself to her mother. Because of the mother’s Sikh religious beliefs, the relationship broke her, but she also cared for her daughter. The father was angry and told extended family members who had strict views and had married off all their daughters to Sikh husbands. The parents never met the applicant’s former partner while they were in Australia. The applicant snuck out of the house to see him and stay out late; they knew what she was doing and weren’t happy. There was tension during the parents’ visit, and not a lot of talking.
20.23.The applicant’s mother could see there was something wrong with her, she was moody and depressed, however she didn’t know about mental health.
20.24.While her parents were in Australia, and prompted by her father’s objection to the relationship, the applicant told her former partner that she was ready to go ahead with the Islamic commitment ceremony, the Nikah. As part of the ceremony, the applicant said prayers to convert to Islam. The Nikah was never registered as a legal marriage because, in the process, the applicant had to disclose to her former partner that she’d been previously married. He was angry that she had withheld this information from him and refused to register. In time, when the relationship had broken down, they both said to one another, “I divorce you, I divorce you, I divorce you”.
20.25.The applicant confirmed that she’d been pregnant to her former partner in 2016 and had a termination.
20.26.The Tribunal asked the applicant about the assault and intervention order against her former partner referred to in her January 2017 statutory declaration. She said that a police officer saw him push her and thought he was trying to hurt her. She was the only witness at the magistrates court; she told the court it was a misunderstanding. She thinks the matter must have been dismissed because her former partner never talked about it again. A lot happened in the relationship since then, they argued a lot, but she didn’t have the courage to talk about it; he was stubborn and wouldn’t let go of things.
20.27.Over time, the former partner became verbally abusive more often, she was worried about him getting physically violent. It was hard to get out of the relationship because she was weak and obsessed with him. She remembers the day she dragged her clothes out of the wardrobe and otherwise left everything else behind.
20.28.When the relationship ended in October 2018, the applicant moved from Melbourne to Sydney. She realised she was pregnant, however she miscarried very early. Her former partner had helped her financially and she had saved some money, which she used to rent a place in Sydney and to support herself for a time.
20.29.The applicant doesn’t have bad intentions for her former partner. They are both good people, but not together; it wasn’t a healthy relationship. Since her mother died, she’s come to understand what he was going through when he lost his parents in 2013. She was genuinely in love with him and wishes it could have worked it. She hasn’t spoken to him in 5 years.
20.30.After the relationship ended, the applicant had work rights and she worked in a [store] for a year, however during Covid the store shut. She paints, writes and exercises now. She has a very hard time trusting people, and has no social life or friends. She’s not ready for another relationship, she’s still trying to heal, and needs to work on some issues.
20.31.The applicant is very versatile with her religion now. She can’t say she’s Sikh anymore. She had been going to a mosque, but not regularly in the last few months as she wants to be left alone. She does Islamic prayers using YouTube.
20.32.The applicant lives in [Suburb] in her brother’s house. She’s been there for a few months. Her brother stays there once a year when he travels from [Country 1]. Before that she was living in a share house, but kept to herself. She feels better being alone and isolated. Exercise makes her feels better; it keeps her distracted from her thoughts.
20.33.The applicant believes that if she returns to India, she will be the victim of an honour killing by her mother’s brother-in-law because of her relationship with her former partner. He has a [business] that operates all over India, there’s nowhere she would be safe. She just wants to be safe, Australia is her only hope, there is no one and no house to go back to in India. She’d happily go to [Country 1] if she could. She has missed out on her life.
Country information
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

In considering the applicant’s claims and evidence, the Tribunal has taken account of the:
22.1.Migration and Refugee Division Guidelines on Vulnerable Persons.
22.2.Migration and Refugee Division Guidelines on the Assessment of Credibility.
22.3.Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
22.4.Relevant country information set out in this decision record.
In particular, the Tribunal notes the following credibility guidelines:
23.1.[6] Evidence considered by the tribunal may include written submissions, an applicant’s oral evidence, oral evidence from other persons, information about conditions and laws in an applicant’s country of origin, expert evidence in the form of written reports or oral evidence and documentary evidence provided by an applicant or the Department of Immigration and Border Protection (the department). Applicants for protection visas are often unable to support claims by documentary or other proof.
23.2.[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person who meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
23.3.[36] The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims protection may be considered when assessing the genuineness or extent of an applicant’s subjective fear[1] of persecution or significant harm.
23.4.[37] A delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible.[2] The significance of delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.
[1] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346 per Heerey J at 349.
[2] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346; Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998; Makouei v MIMA, unreported, Federal Court of Australia, Wilcox J, 6 February 1998, at 6.
Applicant’s emotional and mental health
The Tribunal considers it is likely the applicant experienced considerable emotional difficulties growing up in India as a result of her father being mostly absent from family life and the pressure from extended family members to enter an arranged marriage at age 18.
The Tribunal accepts the applicant’s evidence that she entered an arranged marriage in India at age 18, she and her then husband travelled to Australia on her student visa, and the marriage broke down and they divorced sometime afterwards.
The Tribunal considers it is likely the applicant experienced considerable emotional and financial difficulties following the breakdown of her marriage taking account of her young age, inexperience and vulnerability, being in an unfamiliar country without adult or social support, and being separated from her mother in India and her brother in [Country 1].
The Tribunal accepts the applicant’s evidence that she had a relationship with a Muslim man from [Country 2] from around October 2015 to October 2018, they lived together from early 2016, and she had a pregnancy termination in April 2016.
The Tribunal considers it is likely the applicant experienced verbal and emotional abuse in the relationship.
The Tribunal accepts the applicant’s parents visited her in Australia in 2018 and expressed their disapproval of the relationship.
The Tribunal notes the applicant’s evidence that she hasn’t spoken to her former partner for 5 years, and has not been in a relationship since.
The Tribunal considers it is likely the applicant has experienced, and continues to experience, considerable emotional difficulties following the breakdown of her relationship.
The Tribunal accepts the [Organisation] report as evidence of the applicant’s depression, anxiety and post-traumatic stress disorder.
The Tribunal accepts the applicant experienced, and continues to experience, considerable emotional difficulties following the death of her mother.
The Tribunal considers it is likely the applicant continues to experience mental illness, however there is no medical evidence before the Tribunal of current diagnoses or treatments.
The Tribunal notes the country information reports that Indians living with mental illness face a moderate risk of societal discrimination and a low risk of official discrimination; that mental health services are inadequate; that seeking help is strongly associated with stigma and shame for many Indians and, as a result, treatment is delayed until the problem becomes severe or not sought at all. Further, stigma and discrimination extends to employment and education, and not all families are accepting of members who are living with mental illness.
The Tribunal notes that in AFA16 v MIBP [2018] FCA 628 the Court accepted the appellant’s proposition that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty as well as personal vulnerabilities: at [35]. It found that this proposition was consistent with the observations of the Full Federal Court in SZTEQ v MIBP (2015) 229 FCR 497 at [153], where it was emphasised that an evaluation of ‘serious harm’ will be a question of fact and degree, often complicated and quite specific to the individual concerned.
The Tribunal considers that if the applicant returns to India, it is likely:
37.1.she would experience worsening mental health;
37.2.her mental health would prevent her from gaining or maintaining employment;
37.3.she would have no existing family support network to rely on;
37.4.she would delay seeking or not seek treatment for her mental health due to fear and shame;
37.5.if she did seek treatment, the state would be unable to provide the treatment she needs;
37.6.she would experience serious mental and emotional harm, and the state would be unable to prevent the harm or protect her from the harm;
37.7.she would be discriminated against in employment and life.
Applicant’s past relationship with Muslim man
The Tribunal notes the applicant’s belief that if she returns to India she will be killed by her mother’s brother-in-law for having a relationship with a Muslim man.
The Tribunal considers the applicant’s evidence regarding the nature of her relationship with extended family members in India, including her mother’s brother-in-law, scant and inconclusive.
The Tribunal notes the applicant’s evidence that her father told extended family members in India about her relationship with a Muslim man; and that her mother, before she died, conveyed to her threats from extended family members that if she returned to India she would be killed. The Tribunal also notes the applicant’s written evidence that her relatives threatened her on the phone, however in her oral evidence she said she’d had no contact with any relatives since being in Australia other than her mother and brother by phone, and her parents when they visited.
The Tribunal notes the applicant’s marriage to the Sikh man ended around 14 years ago, and her relationship with the Muslim man ended around 5 years ago.
The Tribunal notes the country information reports that honour killings occur when families feel the honour of their family is jeopardised, and the risk is particular to each individual and their family.
The Tribunal considers there is no credible evidence before it to support a conclusion that if the applicant returns to India she would be killed by her mother’s brother-in-law or any other extended family member for having a past relationship with a Muslim man and/or for her divorce from her Sikh husband.
Applicant’s divorce/single woman status
The Tribunal notes the applicant’s belief that she will be targeted and harmed for being a single, divorced woman.
The Tribunal notes the country information reports that single women (by divorce or widowhood) can experience stigma and stereotypes, and as a result, experience a moderate risk of societal discrimination and a low risk of official discrimination.
The Tribunal considers that this factor alone would not be sufficient to cause the applicant serious harm, however it would, in light of the findings in relation to the applicant’s mental emotional health, likely exacerbate the serious harm to the applicant.
Applicant’s faith
The Tribunal notes the applicant’s evidence that she wasn’t ever a strictly religious Sikh; that she converted to Islam in order to partake in the Nikah commitment ceremony with her former partner, and she has learned more about the Islamic faith by accessing prayers and teachings on YouTube. The Tribunal also notes the applicant’s evidence that she is very versatile with her religion now.
The Tribunal does not consider the applicant is committed to the Islamic or any other faith, however she has demonstrated an interest in exploring the Islamic faith.
The Tribunal notes the country information reports research that found more than 85% of people in each of the major religious groups felt free to practise their own religion, and most of those agreed that other religious groups were similarly free to practise their religions.
The Tribunal considers there is no evidence before to support a conclusion that if the applicant returns to India, she would be targeted and harmed for her religious beliefs.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. Attachment A sets out the applicable law.
51.1.The applicant is a non-citizen in Australia and citizen of India.
51.2.The applicant is a member of a particular social group, being a single, divorced woman living with mental illness.
51.3.The applicant fears being persecuted in India for the essential and significant reason of her membership of that social group.
51.4.There is a real chance that, if the applicant returned to India, she would be persecuted for that reason.
51.5.The persecution would involve serious harm to the applicant.
51.6.The real chance of persecution relates to all areas of India.
51.7.There are no effective protection measures available to the applicant in India.
51.8.The applicant could not take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in India.
51.9.The applicant has a well-founded fear of persecution as defined in s 5J of the Act.
51.10.The applicant is outside India, her country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail herself of the protection of India.
CONCLUSION
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 Chapple
Member

ATTACHMENT A
Summary of applicable law
The 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 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.

[2023] AATA 4556

25 October 2023

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