1904806 (Refugee)

[2023] AATA 3444

1904806 (Refugee) [2023] AATA 3444 (10 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Hulio Gash (MARN 1281149)

CASE NUMBER:  1904806

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Peter Papadopoulos

DATE:10 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the second named applicant a protection visa and remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 10 July 2023 at 11:28am

CATCHWORDS
REFUGEE – protection visa – Nepal – religion – Hindu convert to Christianity – harassment – police assistance unavailable – social group – Dalit caste – separated woman with child – unable to relocate in Nepal – Treaty of Peace and Friendship between India and Nepal 1950 – applicant has to enter and reside in India – real chance of serious harm in India as separated Dalit woman with a child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIMAC v SZRHU [2013] FCAFC 91
Randhawa v MILGEA (1994) 52 FCR 437

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.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants claim to be nationals of Nepal. The first named applicant, [Applicant 1], is a [age]-year-old female.  The second named applicant, [Applicant 2], is a [age]-year-old male.  The third named applicant, [Applicant 3], is a [age]-year-old male and the child of the other applicants.

2. [Applicant 2] arrived in Australia [in] April 2014 as the holder of a Subclass 574 Postgraduate Research Sector (Class TU) visa (Subclass 574 visa). He departed Australia [in] May 2015 and returned [in] May 2015. He departed Australia for a second time [in] December 2015 and returned [in] January 2016. He has not departed since that date.

3. [Applicant 1] and [Applicant 3] arrived in Australia [in] May 2015 as the holders of Subclass 574 visas.  They have not departed since that date.

4. On 12 January 2017, the Department granted each applicant a Subclass 500 Student (Class TU) visa which ceased on 2 April 2018.

5. On 30 March 2018, the applicants applied for a Subclass 866 Protection (Class XA) visa (protection visa).

6. On 8 February 2019, a delegate of the Minister for Home Affairs made a decision to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicants are not persons to whom Australia has protection obligations.

7. This is an application for review of the delegate’s decision.

8. [Applicant 1] attended a Tribunal hearing on 19 October 2022. [Applicant 2] and [Applicant 3] did not attend the hearing.

9. The issue in this case is whether any applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether any applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment.

10. For the following reasons, the Tribunal remits the matter for reconsideration with the following direction:

    (i)That [Applicant 1] satisfies s 36(2)(a) of the Migration Act;

    (ii)That [Applicant 3] satisfies s 36(2)(b) of the Migration Act;

    (iii)That [Applicant 2] is not a person to whom Australia owes protection obligations.

    CLAIMS AND EVIDENCE

    Claims and evidence provided to the Department

    Protection visa application

11. According to information contained in the protection visa application, [Applicant 1] is a [age]-year-old Nepalese national who was born in Pokhara, Kaski in Nepal, the second named applicant is a [age]-year-old Nepalese national who was born in [Kaski] in Nepal, and the third named applicant is a [age]-year-old Nepalese national who was born in[Kaski] in Nepal. [Applicant 1] is the only applicant who has raised protection claims.

12. Based upon information in the protection visa application form, [Applicant 1]:

    ·     married [Applicant 2] [in] July 2004 and [Applicant 3] is their only child;

    ·     has the following family members in Nepal:

    o   her biological [father] (born [date])

    o   her [step-mother] (born [date])

    o   a [sister] (born [date])

    o   two brothers, [names and dates of birth];

    ·     is ethnically Nepalese and a Christian, as is [Applicant 3];

    ·     was employed as [an occupation] at [a workplace] in Pokhara, Nepal between [May] 2004 and [March] 2014;

    ·     was unemployed immediately prior to arriving in Australia [in] May 2015;

    ·     completed a General English course at [a] College [in] September 2016.

13. Furthermore, based upon information in that form, [Applicant 2]:

    ·     has the following family members in Nepal:

    o   his step-mother, [Stemother A](born [date])

    o   his [brother] (born [date])

    ·     had a biological [father] (born [date]) who died;

    ·     is ethnically Nepalese and a Christian;

    ·     was employed as [an occupation] for [an organisation] between [September] 2004 and [July] 2006, as [an occupation] for [a second organisation] between [August] 2006 and 2011, as [an occupation] for [a third organisation] between [September] 2011 and [July] 2012, and self-employed between [March] 2012 and [September] 2014;

    ·     was unemployed immediately prior to travelling to Australia;

    ·     was granted a student visa to enter [Country 1] [in] February 2011; and

    ·     resided in [Country 1] between [February] 2011 and [July] 2013.

14. In relation to her claims for protection, [Applicant 1] provided the following information in her application form and accompanying statement:

    ·     She left Nepal to seek protection for herself and her son as they had converted to Christianity and were unsafe because of ‘pressure and torture from the community and our families’. 

    ·     She arrived in Australia as a dependent on a student visa. Her husband was studying a Masters [degree].

    ·     She was born into a Hindu family. Her father was [deleted] and her parents spent time abroad in [Country 2]. As part of her schooling, she spent time in a Christian hostel. She learnt about Christianity and saw how people in pain were healed by prayers. She initially did not believe but as she continued to attend church, she saw people change into good human beings. She would pray for the well-being others and that they would be good and helpful human beings. She decided to convert. Although she was not baptised, she was a regular attendee at church in Nepal.

    ·     She was bullied by people when she went to church and claims her family were ostracised because of her church attendance. 

    ·     Her family were not on her side, and they did not want her to convert. Neither did her local community. She decided to keep her conversion from her family and friends. She would ask permission from her family to visit her friends but instead go to church.

    ·     When she was planning her wedding, she told her soon-to-be husband that she believed in Christianity. He accepted her Christianity because, although he did not believe himself, he did his schooling in India at a Catholic School. She felt confident to marry him after hearing this.

    ·     When she was with her husband in Nepal, she felt safe, and received no pressure from anyone when attending church.

    ·     After 10 years of marriage, her husband decided to study [in] [Country 1]. He went in 2011. She remained in Nepal with her son for 2-years.

    ·     After her husband left, she had bad experiences when going to church. People would bully her and pass bad comments. Her husband’s family and the community began to harass her. Her parents were also being pressured and tried to resolve the issue with the community officials to no avail.

    ·     Her son and her were isolated from society and were prevented from attending social gatherings or any ceremonial functions. She said that her all her property, including her house, were taken. She was told she should not have gone against her birth religion and was accused of attempting to make the society anti-Hindu. Her father also started to receive pressure, particularly from the local decision maker in their village.

    ·     If she needed assistance, she could only go to the Church. But the Church was pressured by the community not to assist her because of her conversion. She added that she also sought help from the local police but was denied because Nepal is a Hindu country.

    ·     She told her husband of the situation, but he could not come.

    ·     She experienced the worst day of her life when she was physically abused, bullied and harassed by her husband’s family and villagers who were trying to prevent her from going to church. She was physically harmed in front of other people and her son. She decided to stay in hiding with her son at home until her husband returned from [Country 1].

    ·     She again told her husband of the situation and he decided to leave [Country 1] and come back to Nepal. When he returned, he went to see his family. His family attempted to pressure him into forcing his wife and son to denounce Christ and return to family traditions. They accused [Applicant 1] of forcefully changing religions and destroying the peace and harmony in their community. 

    ·     Consequently, her family, including her husband, had to leave Nepal. She feared that anything could happen to them and says that there are many instances where family members kill other members of their own family. They chose to come to Australia where Christianity is accepted.

    ·     Her husband applied for a student visa but did not include their son on the original application because they needed to enrol him in school. Therefore, her husband travelled to Australia to organise their child’s school enrolment. She said obtaining her son’s visa took longer than expected and as a result, her husband suffered from depression. She says he is still suffering now. She added that she was living in fear in Nepal during this application process.

    ·     After her son’s visa was approved, she and her son travelled to Australia to meet her husband. She said they go to church here and that she has been baptised. Her husband has not been baptised.

    ·     She fears returning to Nepal because it is hard to live as she will not be given a job and she has no security. She further fears that she, her son, and her husband might be imprisoned for 5-years for having converted to Christianity. She also fears she might be killed.

    ·     She cannot relocate to India as she is not a citizen of India.

    Supporting documents

15. The following documents were provided to the Department in support of the application:

    ·     Department online form, ‘Application for a protection visa’, generated on 30 March 2018.

    ·     A copy of a Nepalese passport (reference [number]) issued to the [Applicant 1] [in] 2011 and which expired [in] 2021.

    ·     A copy of a Nepalese passport (reference [deleted]) issued to [Applicant 2] [in] 2016 and which is set to expire [in] 2026.

    ·     A copy of a Nepalese passport (reference [deleted]) issued to [Applicant 3] [in] 2011 and which expired [in] 2021.

    ·     Department form 956, ‘Advice by a migration agent/exempt person of providing immigration assistance’, dated 22 March 2018, specifying that Hulio Gash, a registered migration agent (MARN 1281149) provided assistance with the application process.

    ·     A course completion certificate specifying that [Applicant 1] completed [course] at [Church 1], dated [June] 2016.

    ·     A baptism certificate specifying that [Applicant 1] was baptised [in] August 2016 at [Church 1] by Rev. [name].

    ·     A certificate of completion specifying that [Applicant 1] completed [Course] at [Church 1], dated [September] 2016. 

    ·     An undated statement from [Applicant 1].

    ·     A letter from [a] senior pastor of the [Church 1], dated [April] 2017.

    ·     Seven photographs depicting [Applicant 1] and [Applicant 3] participating at various church-related activities.

16. On 24 May 2018, the Department received a ‘Notification of an incorrect answer’ form. A clerical error had been made in completing the protection visa application from whereby it had been incorrectly specified that [Applicant 2] had resided in [one city] when in fact he had resided in [another city] when he undertook studies in [Country 1]. Furthermore, another clerical error had been made in completing the protection visa application form whereby it had been incorrectly specified that [Applicant 2] had completed other studies at an education institution in [a location in] India when in fact that institution was situated in [another location in] India.

    Protection visa application interview

17. [Applicant 1] attended an interview with the Department in connection with her protection visa application on 7 February 2019.

18. The Tribunal has listened to a copy of the recording of the protection visa application interview and refers to it, where relevant, in the findings and reasons below. However, for the sake of clarity and thoroughness of the claims presented to the Department, the following additional evidence was provided by the first named applicant during the protection visa application interview:

    ·     She went to India as a child. She recalls that she did not require a passport but cannot remember the exact dates of travel.

    ·     Her father, step-mother, and siblings remain living in Pokhara, Nepal.

    ·     She separated from her husband in November 2018. They have not officially divorced. She said she is hoping he will alter his ways. She explained that he suffers from alcoholism and that she has taken him to receive treatment. She added that child services have assisted her.

    ·     She is not sure where her husband is living now. She says he contacts her occasionally via text message to organise visitation of their child and to request Nepali food. She stated that her husband is still a part of this application.

    ·     With respect to her Christianity, she said she likes going to church and feels at peace when she does.

    ·     She works in Australia [but] has not been able to save any money beyond a few weeks rent.

    ·     She believes authorities in Nepal may be able to offer assistance but any assistance they would offer would take considerable time. She explained that the local authorities do not like becoming involved in family or religious matters.

    ·     She is concerned that her son’s education would suffer if he returned to Nepal or moves to India because he is doing well in Australia and would need to switch languages if he commenced a new school in one of those countries.

    ·     She said she could live in India but is scared to do so because it is not easy to stay in another country and because she has separated from her husband. She fears moving to India by herself with her son.

    ·     She said her parents could help her but she doesn’t want to go and stay with them because she is a married woman and her brothers don’t want her to come back and stay in the family home. She said her brothers are unmarried and would marry in the future.

    ·     With respect to her protection visa application, she explained that she arrived in Australia as a dependent on her husband’s student visa. She said he is no longer studying. She obtained a student visa of her own but found that studying and raising her child was too difficult. She said that other people told her to apply for the protection visa.

    Summary of the delegate’s decision

19. The delegate’s reasoning in support of their decision to refuse the application is summarised as follows:

    ·     The delegate accepted the identities of the applicants as claimed and that [Applicant 2] and [Applicant 3] are members of [Applicant 1]’s family unit.

    ·     The delegate found [Applicant 1] to be a credible witness who had presented plausible claims. However, the delegate was concerned she had lodged the protection visa application for reasons other than a fear of persecutory harm in Nepal on the basis of her repeatedly raising concerns over her son’s education in Nepal or India should she be required to depart Australia.

    ·     The delegate accepted that [Applicant 1] had converted from Hinduism to Christianity, is a regular church goer, both in Nepal and in Australia, that she had faced stress and intimidation at the hands of her extended family who view her as a bad omen on account of her conversion, and that those extended family members pressured her not to attend church.

    ·     The delegate also accepted that [Applicant 2] is an alcoholic who has been abusive in his relationship with [Applicant 1]. The delegate accepted that [Applicant 1] wished for him to remain on the protection visa application in the hope that he continues to receive medical treatment for his alcohol abuse. However, with respect to whether [Applicant 1] could relocate to India or somewhere internally in Nepal, the delegate made his assessment on the assumption [Applicant 2] would not be accompanying [Applicant 1].

    ·     The delegate considered DFAT’s Thematic Report: India-Nepal Treaty of Peace and Friendship: Rights of Nepalis in India and the ease of unrestricted movement between India and Nepal for respective citizens but made no finding as to whether s 36(3) of the Act applies.

    ·     On the basis of country information, the delegate found that there are generally tolerant conditions for Christians in Nepal with approximately half a million Christians presently in Nepal. However, the delegate acknowledged that religious conversion is prohibited. In India, the delegate found that Christianity, like all religions, is constitutionally protected. The delegate noted attacks against Christians in India but found that approximately 31 million individuals identify as Christian in India. The delegate considered the volume of attacks against Christians in India were not of a sufficient amount to constitute a real chance of persecutory harm.

    ·     The delegate found that [Applicant 1]’s prevention from attending religious activities amounted to serious harm. Further, the delegate found that this serious harm would persist if she resided in the vicinity of her husband’s family. However, the delegate found the [Applicant 1] would be capable of living elsewhere in Nepal, including with her parents at their home, or in India. 

    · Ultimately, the delegate concluded that [Applicant 1] is not a person of whom Australia owes protection obligations under s 36(2)(a) of the Act. Nor was the delegate satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Nepal, there is a real risk [Applicant 1] will suffer significant harm as outlined in s36(2)(aa) of the Act.

    Claims and evidence provided to the Tribunal

    The review application

20. On 1 March 2019, the applicants lodged an application for review of the delegate’s decision with the Tribunal. The applicants were represented in relation to this review by a registered migration agent, namely Mr Hulio Gash (MARN 1281149) (the representative). 

    Pre-hearing submissions and evidence

21. The Tribunal has not received any pre-hearing submissions or evidence.

    The hearing: supporting documents and oral evidence

22. [Applicant 1] appeared in-person before the Tribunal on 19 October 2022 to give evidence and present arguments. [Applicant 2] and [Applicant 3] did not attend the hearing.  The representative elected to attend the hearing by telephone. Where relevant, [Applicant 1]’s oral evidence is discussed in the Tribunal’s findings and reasons below. 

    Post-hearing submissions and evidence

1. On 25 October 2022, the Tribunal wrote to [Applicant 2] inviting him to comment on or respond to certain information which the Tribunal consider would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review. The particulars of the information were that [Applicant 1] informed the Tribunal at hearing on 19 October 2022 that:

   ·     she has not been living with him since November 2018, which was when she and [Applicant 3] moved out of a premises at [an address] in [Suburb 1] where they had been living with him;

   ·     neither she nor [Applicant 3] have received any financial support from him since November 2018;

   ·     she has not had any contact with him since October 2020;

   ·     she is willing to commence divorce proceedings.

2. The Tribunal informed [Applicant 2] that this information was relevant to the review because it would indicate that he was no longer [Applicant 1]’s spouse for the purposes of s 5F of the Act. The Tribunal further informed [Applicant 2] that if the Tribunal relied on this information in making the decision, it may find that he was not a member of [Applicant 1]’s family unit and therefore ineligible for the grant of a protection visa.

3. The Tribunal invited [Applicant 2] to comment or respond by 9 November 2022 and that if he wished to request an extension of time, he should make the request by 9 November 2022.

4. On 9 November 2022, the applicants’ representative wrote to the Tribunal stating that contact with [Applicant 2] had been attempted on 19 October 2022, 25 October 2022 and 1 November 2022 without success. The Tribunal has not received any submissions or evidence addressing the issues raised in its letter of 25 October 2022.  However, the representative did provide a submission, which relevantly read as follows:

   The applicant [Applicant 1] makes the following claims;

   1. She belongs to the lower caste ([named] category) family of Nepal, known as Dalit.

   2. She belongs to the group of people called “Dalit converted Christain”.

   3. Being a Dalit converted christian she carries a stigma of being both as a dalit and converted christian.

   4. As a Dalit christian, she experienced the 'double discrimination' in the society as Dalit converted.

   5. She has experienced the hatred, stigma, dominance by upper cast people. She is called untouchables and is restricted entry into neighours house or friends house. She is cutoff from the society for being dalit converted christian and people avoid her and she is not allowed to touch other people and not allowed to have other people company.

   6. She is insulted, isolated in the society for being a dalit converted christian.

   7. Her conversion to Christianity is considered sin and her husband’s family prevented her form going to church and paractice christianity.

   8. She was threated by her husbands family for being a converted christian.

   9. She has faced threats, criticism, verbal and emotional abuse, controlling behaviour from her husband’s relatives.

   10. People and her family persecute her because of the belief that dead members of the family cannot rest in peace in heaven for conversion to christianity.

   11. She was threatened to be tortured for being 'Dalit converted christian and fears that if she returns to Nepal she and her kid will face physical and mental harrassment ,torture and social segregation .

   12. She fears that she will face physical and mental torture from the relatives and society.

   13.She fears that she and her kid may not find any employment or assistance in the society for being dalit converted christian.

   14.For the above reasons she fears that she will face systemic discrimination and physical harm if she returns to Nepal and hence seeks protection in Australia to save hers and her kids life.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nationality: Country of reference/receiving country

5. [Applicant 1] claims to be a citizen of Nepal and provided to the Department a copy of her Nepalese passport issued [in] 2011. The delegate was satisfied that [Applicant 1] was using her own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that [Applicant 1] is a citizen of Nepal. The Tribunal accepts that Nepal is her receiving country for the purpose of assessing her claims for protection.

   Credibility

6. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]

   [1] MIMA v Rajalingam (1999) 93 FCR 220

   [2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

7. The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or for the reason claimed. Likewise, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[4]

   [3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169–170

   [4] Sun v MIBP [2016] FCAFC 52 at [69]

8. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and evaluating the applicant’s evidence.

9. In the present case, the Tribunal takes into account the applicant’s evident lack of familiarity with the Tribunal setting and her limited English language proficiency. With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary.

10. The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.

    Independent information – Christians in Nepal

11. The Department of Foreign Affairs and Trade Report on Nepal (issued on 1 March 2019) (DFAT Report)[5] provides the following information about Christians in Nepal (underlining added):

    [5] Department of Foreign Affairs and Trade, Country Information Report – Nepal (1 March 2019)

    3.21 The 2015 Constitution states Nepal is a secular state, signalling a major departure from the Hindu monarchy. It guarantees freedom of religion. Religious tolerance is broadly practiced and there are no restrictions on the sale or distribution of religious material. Nepal celebrates public holidays for numerous religious faiths in addition to secular and political anniversaries. Nepal’s 2015 Constitution prohibits one person from converting another. Religious schools requesting government funding are required to register with local district administration offices and curricula for the schools is provided by the Department of Education. Hindu, Buddhist and Muslim communities report that they are able to establish religious schools, but Christian groups say that they are not supported by the government, at least in terms of funding, to do so.

    3.22 According to the 2011 Population Census, the most recent available, approximately 81 per cent of Nepalis are Hindu, nine per cent are Buddhist, four per cent are Muslim and 1.4 per cent are Christian. Syncretic faiths encompassing elements of Hinduism, Buddhism and traditional folk practices are widespread.

    3.23 According to a nationwide survey conducted in 2017 by the Asia Foundation, 7.4 per cent of Nepalis feel disadvantaged by their caste, ethnicity or religion in the workplace (7.4 per cent), when applying for a citizenship card (5.8 per cent), in education (4.1 per cent), in interactions with the police (4.8 per cent) and in healthcare (5.1 per cent). The proportion of those who feel disadvantaged is higher among Dalits, Muslims and Christians.

    3.24 Inter-religious marriage is reportedly increasing in popularity among young people. Such a marriage would commonly involve running away from disapproving families. There are no legal barriers to inter-religious marriage.

    3.25 Overall, DFAT assesses that people of different religions generally live side-by-side without incident in a richly multi-ethnic and multi-religious society. Incidents of tensions between groups, and discrimination against them, has been reported, mostly in localised events. These are described in the relevant section below. DFAT assesses that people involved in multi-ethnic marriages may be at risk from disapproving families, but this depends on the attitudes of individual parents.

    …

    Christians

    3.28 Christianity was introduced into Nepal in the 18th century, but Christian missions to Nepal were not common until the 1950s. The US Department of State estimated that 1.4 per cent of the population is Christian, the vast majority of whom are Protestant. Nepal has dozens of Christian missionary hospitals, welfare organisations, and schools and, in general, Christians report that they do not face government interference in operating these institutions. However, a number of Christian groups report that they keep their activities discreet. In particular, Christian groups that are not well-established can face difficulty registering as religious organisations and, as a result, can find it difficult to own land. Christians also complain that they have been unable to acquire land for cemeteries.

    3.29 Proselytising is banned in Nepal. Eight Christians were charged with this offence after giving out a pamphlet about Jesus Christ in a Christian school. Christian leaders reported that foreign missionaries involved in proselytising are generally not expelled from the country, but that nonetheless they attempt to keep their activities, and their ties to foreign Christian churches and charities, discreet.

    3.30 Small scale terrorist events have affected Christians in Nepal, including improvised explosive devices being detonated on the grounds of three churches in Jhapa district at the same time that protests against the new constitution were occurring in 2015. An arson attack on a Catholic cathedral occurred in 2017, causing significant damage to the building but not causing injuries to the priests living there. The attacks were claimed by Hindu nationalists.

    3.31 Conversion to Christianity has increased since the 1950s. More than 90 per cent of Nepal’s Christians are from marginalised groups such as indigenous communities (such as Chepangs and Santal) or Dalits, for whom Christianity provides an escape from the caste system. There are also anecdotal reports of occasional social tension because activities of (particularly foreign) missionaries to induce conversion through the provision of health, education, housing or employment opportunities to converts, which are perceived by some to be over-zealous.

    3.32 DFAT assesses that Hindu citizens who convert to Christianity are publicly and safely able to do so, although they may experience low-level societal or family discrimination which may vary according to their personal and family circumstances.

12. More recently, the Department of Home Affairs’ Country of Origin Information Services Section published a report on Nepal[6] (COISS Report) which indicated that freedom of religion is generally respected in Nepal, although minority religious groups have expressed concern about rising Hindu nationalism and legislative changes regarding conversion. COISS found that religious tolerance is broadly practised but some religious minorities report being harassed.  For example, Christian schools are not legally able to register as public schools. Relevant to the claims raised in this case, the COISS Report provides the following information about religious conversion in Nepal (footnotes omitted, underlining added):

    The constitution prohibits individuals from converting a person from one religion to another or doing any act or conduct that may jeopardise the religion of others, with violations punishable by law. In June 2016, police in Dolakha District arrested eight Christians on charges of attempted conversion for distributing books about Christianity to students at a Christian school, but the accused were later acquitted of all charges by the Dolakha District Court. Christian groups said the case was the first reported instance of an attempt by the government to enforce the constitutional ban on conversion and represented a test case for its enforcement. During 2017, the government did not enforce the ban on converting others, according to Christian groups and legal experts.

    In October 2017, Nepal’s new Criminal Code, which includes clauses on religious conversion and the ‘hurting of religious sentiment’, was signed into law by President Bhandari. The criminal code bill and other bills were drafted to reform Nepal’s penal code in line with the constitution. Human rights and minority religious groups have said that that the ban on conversion could make religious minorities subject to legal prosecution for carrying out their normal religious practices, and vulnerable to prosecution for preaching, public displays of faith, and distributing religious materials. There were also concerns regarding a criminal code provision banning speech or writing harmful to others’ religious sentiments. Nepal’s Legislature-Parliament had, in August 2017, endorsed the Criminal Code and Criminal Procedure Code, which, with other pending bills, would replace Nepal’s Muluki Ain (Civil Code). The new criminal and civil codes came into effect on 17 August 2018.

    There have been arrests and prosecutions for religious conversion. During 2018, there were arrests for proselytising, with some of those arrested deported from Nepal. In 2019, the government began implementing the new anti-conversion law that led to arrests of members of religious minority groups for their involvement in religious conversion activities but also inspired some Hindu extremist leaders to attack Christian pastors accusing them of religious conversion activities. Some Christians have been prosecuted under the 2017 law prohibiting religious conversion. Local Christian groups reported arrests and deportations for proselytising during 2019, and there were arrests for proselytising and seeking to convert Hindus to Christianity during 2020. In February 2021, it was reported that since 2018, police had investigated at least 16 cases of religious conversion filed against Christians by state and non-state actors. In September 2021, four Christians, including two Catholic nuns, were arrested for religious conversion. They were released on bail in November 2021. Also in November 2021, a district court sentenced a Christian preacher to two years’ imprisonment and a fine of 20,000 rupees for proselytising. The case was appealed to the High Court, and in December 2021, he was released on bail pending a review of the district court’s decision.

    Christians have continued to face charges of conversion. In June 2022, it was reported that church sources said that at least 13 Christians had been facing court cases on charges of conversion in Nepal. In December 2022, charges against four Koreans, including two nuns, were dropped. A January 2023 BBC News article reports that according to the Nepal Christian Society, there were five active cases under Nepal’s anti-conversion law at that time. The BBC News article indicates that only Christians had been charged under the law, but no-one had been convicted. Cases had either been thrown out due to a lack of evidence or defendants had been acquitted on appeal.  In July 2022, Christian clergyman, Keshav Acharya, was sentenced to one year in prison for proselytising in Nepal. In January 2023, a Christian non-governmental organisation (NGO) reported that Pastor Keshav Raj Acharya had been released on bail pending a Supreme Court appeal against his sentence.[7]

    [6] Department of Home Affairs, COISS, Common Claims (13 April 2023)

    [7] Ibid., pp. 8-9

    Independent information – Dalit women in Nepal

13. The COISS Report provides the following information about caste-based discrimination faced by Dalits in Nepal (footnotes omitted, underlining added):

    Despite the government’s attempts to outlaw caste-based discrimination, Dalits continue to face exploitation, violence and social exclusion. Although constitutional provisions make caste discrimination illegal and ensure education is free and open to all castes, Hindu Dalits continue to suffer from significant societal discrimination, ostracism, and harassment by higher-caste individuals and Hindu nationalists, especially in rural areas of Nepal. In 2012, Nepal introduced the Caste-Based Discrimination and Untouchability (Offense and Punishment) Act 2011 which prohibits discrimination against Dalits and increases penalties for official discrimination. Nepalese law provides that each community has the right to preserve and promote its language, script, and culture, and to operate at schools at the primary level in its native language.  The 2015 constitution further prohibits the practice of untouchability and stipulates special legal protections for Dalits in education, health care, and housing.  In September 2018, Nepal’s president authenticated 16 bills related to fundamental rights under the constitution, including the right against discrimination and untouchability. A June 2022 article indicates that caste-based discrimination continued despite the laws in place. Human Rights Watch reported in January 2023 that members of marginalised communities, including Dalits, are disproportionately affected by sexual violence and have particular difficulty accessing justice. In February 2023, Human Rights Watch reported that recent attacks on Dalits showed that caste-based violence and discrimination were rarely investigated or prosecuted. In March 2023, Nepal’s National Assembly unanimously endorsed a 19-point motion aimed to pressure the federal government to work effectively towards ending discrimination and oppression against Dalits.

    Caste-based discrimination is widespread. Discrimination against lower castes and some ethnic groups, including in employment, is widespread, and especially common in the Terai region and in rural areas. Local advocates for Dalits’ rights claim that laws prohibiting discrimination are too general and do not explicitly protect Dalits. In two separate incidents occurring in May 2020, seven Dalits were killed. In July 2020, a parliamentary committee concluded that the killings of six Dalit youths in one of the incidents were the result of caste-based discrimination prevalent in society and a crime against humanity. Nepal Monitor, a Nepali human rights organisation, recorded 27 incidents of caste-based discrimination or violence for the year up to June 2020, although Dalit activists say most cases go unreported, and very few result in official action.  Nepal Police are reported to have registered 39 cases of caste-based discrimination in the 2020-21 fiscal year, compared to 29 cases in the previous fiscal year. Dalits are reported to have become more vulnerable to discrimination during the COVID-19 pandemic. (See: ‘COVID-19’ below.) In September 2022, a district court sentenced a man to four and a half years in jail, including a year for caste-based discrimination, and fined him Rs75,000 for discriminating against a minor based on her caste and holding her hostage. Lawyers and social activists said such a decision from a district-level court was important as caste-based discrimination was rampant in society, but rarely reached court. Dalit rights activists said that although higher-level courts had made similar decisions in the past, it was possibly the first by a district court.

    Lower-caste Hindus and ethnic minorities may encounter official discrimination. Madhesis, numerous ethnic groups, women, and Dalits continue to face substantial legal, economic and social discrimination from high-caste Hindus, who hold dominant positions in the bureaucracy and political institutions, as well as in Nepal’s complex socioeconomic system. Madhesis may encounter official discrimination due to difficulties obtaining citizenship, affecting access to government benefits.[8]

    [8] Ibid., pp. 6-7

1. According to the International Dalit Solidarity Network,[9] Dalit women are especially marginalised in Nepal (underlining added):

   Out of a population of 26 million, civil society organizations, NGOs and Dalit organizations estimate that approximately 4.5 million Nepalis are Dalits, while the national census counts only about 3 million.

   The national index of empowerment and inclusion reveal Dalit women to be the most marginalized, much worse off than Dalit men. As women, they have no control over resources such as land, housing or money.  When given the opportunity, Dalit women voice their concern over being deprived of these livelihood options as well of lack of access to education for their children.

   Apart from being forced into the most demeaning jobs, Dalit women are extremely vulnerable to sexual exploitation and are often victims of trafficking and forced sexual labour.  Amongst the Dalit communities themselves,  the women of the Badi group are largely looked down upon as sex workers.

   Dalit girls in general are trafficked to Indian brothels in increasing numbers and forced to work as prostitutes. Many of the girls believe that they will obtain jobs as domestic helpers and willingly follow brokers in the hope of earning money to support their families. In the Pune area there are an estimated 12,000 Nepali prostitutes and in Mumbai the number is approximately 40,000.

   [9] ‘Dalit women in Nepal’, International Dalit Solidarity Network, >

   In 2008, the United Nations Development Program highlighted the intersectionality issues faced by Dalit women in Nepal and reported[10] on their plight in the following terms (underlining added):

   Dalit women especially suffer great hardships, as some of their disadvantages are rooted in the social structure of Dalits themselves. They are easy victims of domestic violence and trafficking for work in brothels. Lives are valued less than those of others (as demonstrated in India with the Kosi floods, Dalits were the last to be rescued, and many no doubt lost their lives as a result).

   …

   Although some Dalits have adopted religions such as Christianity and Buddhism, the majority of Dalits are Hindus. Patriarchy keeps them in a subordinate position in homes and society. They, like women from other castes, play triple roles, i.e. reproductive, productive and community. They have no access to or control over resources. Although Dalit women have more mobility than their counterpart “high caste” women, they have no presence in public positions at the higher levels and it is negligible at the lower levels.

   …

   In Nepal, Dalit women are economically marginalized and exploited, both within and outside their families. As the largest group of those engaged in manual labor and agricultural production, their jobs often include waste disposal, clearing carcasses, and doing leatherwork. Despite their grueling tasks and long hours, exploitative wages ensure that Dalit women are unable to earn a subsistence living. In some rural areas Dalit women scarcely earn ten to twenty kilograms of food grain a year, barely enough to sustain a family. Many have been driven to prostitution.

   [10] ‘The Dalits of Nepal and a New Constitution’, UNDP, Kathmandhu, September 2008, >

   A recent study of Dalits in the city of Pokhara[11] found that while Dalits enjoy better economic and education opportunities in Nepalese cities than rural areas, Dalit women in Pokhara who lack education and entrepreneurial skills have limited economic opportunity and tended to engage in traditional occupations such as tailoring and the making of ladies garments. 

   Independent information – women in Nepal who have experienced family violence and are separated from their husbands

   [11] Pariyar, B. and Lovett, J.C., ‘Dalit identity in urban Pokhara, Nepal’, Geoforum, Vol.75, October 2016, pp.134-1476

2. The DFAT Report provides the following information about women in Nepal, particularly those experiencing domestic violence and otherwise vulnerable because they do not have the support of a male partner (underlining added):

   Women

   …

   3.64 Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking. Nepal’s laws contain a narrow definition of rape and have a 180-day limitation period for filing complaints. Penalties for marital rape are low and the crime is rarely reported. The 2017 criminal code set new, higher gaol sentences for rape, however DFAT is not aware of whether this provides an effective deterrent. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement though informal justice mechanisms, particularly in rural areas.

   ….

   3.66 According to the 2018 statistical update to the United Nation’s Development Fund’s Human Development Report, 25 per cent of women have experienced intimate partner violence in Nepal. Domestic violence shelters do exist in small numbers in some districts. They do not provide long-term solutions, often limited to 45 days of residence, and women who temporarily live in shelters are often forced to return back to their violent domestic situation due to a lack of alternative options. Many women lack financial independence and are reluctant to seek help in situations of violence because of the risk to their security and livelihood.

   3.67 The 2009 Domestic Violence Act provides for monetary compensation and psychological treatment for victims, but authorities generally do not prosecute domestic violence cases. The legislation has a reconciliation and mediation approach and compensation must be pursued through the courts.

   …

   3.71 Nepali women rarely receive the same educational, employment and economic opportunities as men. Girls in particular are vulnerable to early marriage which disrupts or ends their formal education. Single women and widows are particularly vulnerable. While a widowed woman is legally entitled to her late husband’s estate, many widows are unaware of their rights or unable to enforce them due to traditional attitudes and weak legal protections.

   …

   3.75 DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.[12]

   [12] DFAT, Country Information Report – Nepal, 1 March 2019, pp. 22–23

3. Moreover, a 2017 report by the Overseas Development Institute notes that ‘[i]naccessible legal and bureaucratic systems’ limit reporting of intimate partner violence, ‘with women finding it difficult to approach government institutions and to carry out the necessary procedures, often in relation to divorce and property discussions.’[13] This systemic barrier was explained in the following terms:

   This was largely because all the brokers who manage negotiations around property are men. If the woman has a supportive brother or father, they can assist, but women who do not have supportive male family members are among the most disadvantaged and distressed. All survivors who reported IPV to the police or pursued their case through court were only able to do so because of the help they received from male members of their family or from men outside the family, such as neighbours.[14]

   [13] 'Understanding intimate partner violence in Nepal through a male lens', Anita Ghimire and Fiona Samuels, Overseas Development Institute, 1 March 2017, p.19

   [14] Ibid., pp.19-20

4. Albeit from 2012, the following research undertaken by the Refugee Review Tribunal[15] is informative as to the status of separated women with children in Nepal. The Tribunal considers that the information below is informative as to societal discrimination against single women with a child or children, noting that the research was confirmed to women from the Brahmin caste and not the Dalit caste (underlining added):

   [15] Refugee Review Tribunal, Country Advice Nepal – NPL40796, 24 August 2012

   Please provide any recent information on the status of separated/divorced women and single mothers in Nepal. She is from the Brahmin caste.

   According to a paper presented at the 2012 Population Association of America[16] Annual Meeting, despite recent legal improvements, divorce remains relatively uncommon in Nepal, and divorced women continue to be significantly stigmatised and disadvantaged.[17] The Laligurans Women Skill Development Centre website states that there is a “strong stigma” attached to divorced women in Nepal, and women can find it difficult to re-marry in conservative rural communities.[18]

   Nepalese women are reportedly afforded little legal protection upon divorce. If a husband initiates a divorce against his wife, and if she has no other means of supporting herself, then he must provide financial support to her in accordance with his status and income; financial support is provided for five years.[19] The Nepal website refers to the financial support provided by husbands to their former wives as a meagre allowance, which women have accepted “probably because there was no other option for them”. Divorced women were reportedly considered to be ‘discarded’, and unwanted by society. The article also claims that families considered them to be an embarrassment, and parents often took their daughters back out of pity.[20]

   According to a 2012 paper on divorce in Nepal, women “still face bleak prospects for life after marital dissolution”. Legal changes may remove some disincentives to divorce, in that women now have theoretical access to improved property rights and custody arrangements, and that men can no longer divorce their wives on the grounds of infertility.[21]

   In 2010, the Asian Development Bank (ADB) reported that a number of discriminatory legislative provisions regarding divorce were repealed, increasing a woman’s entitlements following divorce. Women were granted the right to their husband’s property after divorce, and the provision of receiving monthly or yearly support in lieu of property. Women are also now allowed to divorce their husbands on the grounds of rape, while a man can no longer divorce his wife due to her inability to bear a child. However, some discriminatory provisions remain on whose ground only the husband can divorce. For example, a husband may divorce his wife if he can prove that she has a sexually transmitted disease, or that she is having an affair. The ADB makes the point that, in Nepalese society, it is unlikely that the husband’s accusations would be questioned by others, and the wife would not be given the opportunity to disprove such accusations.[22]

   Limited information was located specifically relating to the social status of divorcees and caste. According to an article posted on the Swiss-based RAO Online travel website, Hindu divorced women may face social stigma, and a divorced woman from a high caste reportedly has little chance of remarriage within her socioeconomic group.[23]

   Limited additional information was located specifically regarding the status of single mothers. According to The Continuum Complete International Encyclopedia of Sexuality, sexual relationships outside of marriage are generally disapproved of and early arranged marriages sometimes occur to “protect a girl’s reputation, which can become tarnished by public association with a boy”.[24] A 2004 article in Indigenous Affairs stated that while there was an increasing number and level of social acceptance for single mothers, they still experienced a significant degree of social stigma:

   Single mothers (unwed mothers and women deserted by their husbands) are not given the support they need, and society often harbours negative attitudes about them despite the suffering some have gone through. In the past, women who got pregnant out of wedlock, including in rape cases, were forced to marry.[25]

   Sources suggest that single women, including single mothers, are likely to experience economic hardship. In 2007, a UK based project that had been working to support single mothers in Eritrea for twelve years expanded to the Nepalese Himalayas “because many single mothers are also living under very difficult – often degrading circumstances in remote villages”.[26] However, it is noted that Nepal is ranked 157 out of 187 states on the United Nations’ Human Development Index, and that a high proportion of the population is therefore likely to live in difficult circumstances.[27]

   Regarding employment opportunities for women, the Laligurans Women Skill Development Centre reports that while women account for approximately 40 per cent of the total work force in Nepal, they reportedly tend to occupy lower status jobs, and are paid less than men.[28] In an August 2011 report, the UN Committee on the Elimination of Discrimination Against Women noted “the high proportion of women [employed] in the informal sector; and the widespread prevalence of sexual harassment in the workplace”.[29]

   [16] According to their website, the “PAA is a non-profit, scientific, professional organization that promotes research on population issues”. See

   [17] Jennings, E 2012, Marital Dissolution in Nepal: The Influence of Spouses’ Perceptions of Marital Dynamics, Paper presented at the 2012 Population Association of America Annual Meeting, Princeton University website < Accessed 26 March 2012 <Attachment>

   [18] Laligurans Women Skill Development Centre 2006, Women in Nepal < Accessed 16 October 2007 <Attachment>

   [19] Laligurans Women Skill Development Centre 2006, Women in Nepal < Accessed 16 October 2007 <Attachment>

   [20] Nepal n.d., Life After Divorce in Nepal < Accessed 23 June 2011 <Attachment>

   [21] Jennings, E 2012, Marital Dissolution in Nepal: The Influence of Spouses’ Perceptions of Marital Dynamics, Paper presented at the 2012 Population Association of America Annual Meeting, Princeton University < Accessed 26 March 2012 <Attachment>

   [22] Asian Development Bank 2010, Overview of Gender Equality and Social Inclusion in Nepal, pp.10, 16–17 < > Accessed 11 February 2011 <Attachment>

   [23] RAO Online n.d., Patriarchy and Marriage < Accessed 23 June 2011 <Attachment>

   [24] Schroeder, E 2004, ‘Nepal’, in Francoeur, R T & Noonan, R J eds., Continuum Complete International Encyclopedia of Sexuality, Continuum International Publishing Group, New York, Google Books, p.716 < Accessed 15 August 2012 <Attachment>

   [25] Lasimbang, J 2004, ‘Indigenous Women and Activism in Asia: Women Taking the Challenge in Their Stride’, Indigenous Affairs, No. 1-2/04, p.45 < Accessed 17 August 2009 <Attachment>

   [26] Esel-Initiative e.V. n.d., The Project < Accessed 16 August 2012 <Attachment>

   [27] ‘Nepal improves in human development index’ 2011, The Himalayan Times, 2 November < Accessed 22 August 2012 <Attachment>

   [28] Laligurans Women Skill Development Centre 2006, Women in Nepal < Accessed 16 October 2007 <Attachment>

   [29] UN Committee on the Elimination of Discrimination against Women 2011, Concluding Observations of the Committee on the Elimination of Discrimination against Women – Nepal, UNHCR Refworld, 11 August < > Accessed 20 March 2012 <Attachment>

5. The Tribunal also notes the following COISS research published on 9 November 2022 about the stigma, mistreatment and discrimination faced by single women in Nepal:

   A research paper published by Munich Personal RePEc Archive (MPRA) in November 2019 stated that due to various reasons, there has been growth in single women in Nepal.

   Population Census 2011 and Demographic Statistics 2019 shows 6.7 percent (2 million) single women as widow out of total population (29.9 million) and 44 percent single women as household head (2.3 million) out of 5,423,297 households (CBS, 2019).[30]

   The journal article assesses that despite constitutional and legal provisions to guarantee women’s rights to resources, property, opportunity, decision making processes and so on, ‘single women within household is identified as a hidden, sensitive and serious issue.’[31]

   Despite existed single women, it was fully covered as non-issue in the closed Nepalese family and society. Over long decades, such issue existed as non-issue. Therefore, it was not much more talked and not considered as a big issue because of its hidden domain, social codes and practices and misunderstanding on its multidimensional factors. If we observe status of single women, they are blamed as husband eaters and stigmatized as inauspicious and witches (Thapa, 2010).[32]

   [30] ‘Measurement of Vulnerability of Single Women in Nepalese Households: Query about inclusion or exclusion’, Raghu Bista, Munich Personal RePEc Archive (MPRA), 1 November 2019, p. 3, 20221103134922

   [31] ‘Measurement of Vulnerability of Single Women in Nepalese Households: Query about inclusion or exclusion’, Raghu Bista, Munich Personal RePEc Archive (MPRA), 1 November 2019, p. 3, 20221103134922

   [32] ‘Measurement of Vulnerability of Single Women in Nepalese Households: Query about inclusion or exclusion’, Raghu Bista, Munich Personal RePEc Archive (MPRA), 1 November 2019, pp. 4–5, 20221103134922

6. A more recently issued COISS Report[33] provides the following information about attitudes towards divorced women in Nepal (footnotes omitted, underlining added):

   [33] Department of Home Affairs, COISS Standard Q & A Report, Nepal: 20230201135538 – Divorced Women – Support organisations – State protection (18 February 2023)

   A 2017 Population Studies article states that divorce is not common in Nepal, and divorced women face greater stigma than divorced men.

   A July 2021 article in local Nepali news source Online Khabar quotes two Nepali sociologists who state that divorced women in Nepal face stigma:

   Sociologist Dipesh Ghimire explains divorce is not only an event but also a concept. In a society where there is economic freedom or where both men and women have equal access to economic systems, the understanding of divorce is very different.

   According to him, people in those societies usually consider it as a common phenomenon as they believe that until you have mutual understanding, you live in a union, however, if there is no more mutual understanding, you part your ways.

   “However, this is not the society we live in. In Nepal, there are stigmas attached to divorce,” says Ghimire. “There is a huge disparity in the way divorced women and men are looked upon in this society. Accordingly, there is a difference in the way of making adjustments post-divorce be it regarding their safety and other things.”

   In Nepali society, immediately after the divorce, questions about and preparations for a second marriage start among their relatives for men. “He is free to get remarried and neither his divorce affects his partner choices,” another sociologist Sunita Raut, adds, “But, a divorced woman does not have such choices as our society sees women as an ‘object’.”

   Both Ghimire and Raut believe whatever may be the reason for divorce, women are often looked down upon and not treated well even by their families, relatives, neighbours and colleagues.

   The article further states that divorced women are often socially isolated, with many parents feeling that their responsibility towards their daughters ends on marriage:

   Divorced women might have to go through character assassination, accusations and different forms of violence. Moreover, women are often held responsible for the failed marriage as a patriarchal society conditions them to obey everything told by their husbands and tolerate everything.

   Predicting such consequences and social stigma associated with divorced women, many women choose to live with the men tolerating any kind of domestic violence, adultery and even polygamy, according to Ghimire. Additionally, neither they could openly share their sufferings to anyone nor could defend themselves, says Raut.

   Simultaneously, a divorced woman who has nowhere to go starts to self-blame herself as the parents think that their responsibility towards their daughter is over once she is married off. They can neither make networks nor include themselves in any public sphere or family and social functions, according to Raut.

   In addition, “Such stigmatisation affects the individual mentally and thus negatively impacts their grooming and performance in the society,” informs Raut, “They start to devalue themselves; they think that they are out of the social system.”

   According to The Women’s Foundation Nepal, getting a divorce is difficult but ‘[e]ven worse than the time and money required to get a divorce is the social stigma put on a divorced woman.’ The foundation states that ‘[m]any women are so terrified of being ostracized from their communities if they get a divorce that they will endure years of abuse instead.’ According to a 2020 Global Health Action article, family shame is associated with divorce. The article notes that ‘[i]t is still prohibitively difficult for most women in Nepal to divorce’ and quotes a participant in a focus group discussion (FGD) who said:

   If a woman’s family is broken, even the maternal family will not look after her again. She will become homeless. [To avoid this], she will rather suppress herself and try to remain without a word. (FGD 5, university, 36 years)

   Independent information – internal relocation, relocation to India and the treatment of returnees

1. The DFAT Report provides the following information about internal relocation within Nepal, relocation to India and the treatment of returnees:

   INTERNAL RELOCATION AND RELOCATION TO INDIA

   5.17 The 2015 Constitution guarantees the freedom for Nepalis to move and reside in any part of Nepal. However, laws can be passed to curtail this freedom in the public interest or to maintain harmonious relations between castes, tribes, religions or communities.

   5.18 Relocation is a common experience for Nepalis. Millions travel each year to other countries seeking employment and other opportunities and to seek economic opportunity. Over half of all Nepali households have at least one family member currently overseas as a migrant worker or living in Nepal as a returnee and therefore relocation is a normal, expected circumstance of life. The open border arrangement with India, as per the 1950 India-Nepal Treaty of Peace and Friendship, allows large numbers of Nepalis to travel to and from India each year or reside in India on a long-term basis. Large numbers of Nepalis also move within the country. The populations of major urban centres such as Kathmandu have increased substantially in recent decades. While Nepal is currently one of the least urbanised countries in the world, it has one of the world’s fastest rates of urbanisation, demonstrating significant internal movement.

   5.19 Kathmandu in particular, but also other large urban centres such as Biratnagar and Pokhara, today reflect the significant ethnic, religious and caste diversity of Nepal and as such provide accessible opportunities for relocation within Nepal.

   India-Nepal Treaty of Peace and Friendship: Rights of Nepalis in India

   5.20 There is a long history of free and unregulated movement of people between India and Nepal. The Anglo-Nepal War of 1814 and the subsequent treaty of peace signed between the British East India Company and Nepal in 1816 resulted in the first delineation of the border. The British maintained an open border to facilitate the free movement of people and goods between the two countries and a number of colonial era agreements were made to this effect.

   5.21 India and Nepal agreed their Treaty of Peace and Friendship in 1950 (the Treaty). At the time, the Treaty was intended to maintain the special ties between Nepal and India that had existed in the British colonial era. Nepal also had security concerns following the Communist Revolution in China in 1949.

   5.22 Article 7 of the Treaty provides for each country ‘to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature’. The Treaty therefore provides for freedom of movement across borders between the two countries and equal rights in the participation in the economy and legal system. India has waived its right to reciprocity under the Treaty. Close collaboration between the two countries on foreign affairs and defence policy also occurs under the Treaty.

   5.23 According to the Bureau of Immigration in the Indian Ministry of Home Affairs, Nepali citizens entering India by land do not require a passport or visa to enter India. Nepali citizens entering India directly by air do not require a passport or visa but are required to establish their Nepali citizenship through the production of a: Nepali passport; Nepali citizenship certificate; voter’s identification card issued by the Election Commission of Nepal; or photo identity document issued by a Nepali mission in India. Children below the age of 10 are not required to produce Nepali identity documents, however children aged 10 to 18 must do so but if the aforementioned documents are not available, may elect to produce a photo identity document issued by a school principal. Nepalis travelling to a third country from India would require a passport.

   5.24 Large numbers of Nepalis travel to India every day. Many Nepalis enter India by air; there are regular daily flights between Kathmandu and major Indian cities. The land border between India and Nepal is long and readily accessible and many people cross it every day. Many people use formal border crossings, however these are not always staffed by immigration officers. The infrastructure at border crossings can be very poor; some border posts are little more than tents. Others simply walk across the large unguarded sections of the border and such undocumented border crossings are common. .

   5.25 A large number of Nepalis live and work in both the formal and informal sectors in India, including a substantial community in New Delhi. It is impossible to calculate overall numbers because of the large and regular movement of Nepalis into India. Nepali citizens in India are not required to register their presence in India with the Government of India. According to the Foreigners Division in the Indian Ministry of Home Affairs, only those foreigners visiting India on long-term visas (this does not include Nepalis) are required to complete this formality with the Foreigners Regional Registration Office.

   5.26 In order to participate formally in Indian society (e.g. gain formal employment, access formal health and education services, purchase property, etc) Nepalis must, like Indian citizens and other nationalities resident in India, obtain an identification card, known as a ‘PAN card’ (PAN stands for ‘Permanent Account Number’). This card, issued by the Indian Income Tax Department, acts as an informal type of identification, but also allows the card-holder to open a bank account, receive a salary and conduct high-value transactions such as asset sales. In order to obtain a PAN card, an applicant must provide: a completed application form; recent colour photographs of themselves; proof of identity and address; and payment of INR 107 (approximately AUD 2.20). It is not mandatory to have a PAN, however over 170 million have been issued notwithstanding that there are only approximately 30 million income tax-payers in India; this demonstrates the widespread use and accessibility of the PAN cards.

   5.27 People travelling to India for formal employment often receive assistance from their employer in obtaining a PAN card before entering India, but PAN cards can also be applied for individually after entry into India. DFAT assesses that so long as Nepalis are able to produce the relevant information, they would be able to obtain a PAN in the same way as Indian citizens do.

   5.28 Credible sources in India advised DFAT that, in practice, most Nepalis choose to remain in the informal sector and do not obtain formal identification documents, including the PAN card, while in India. While this limits the ability of these people to gain employment in the formal sector, buy property or open a bank account, DFAT observes that this makes their position no different to Indians who work in the informal sector who do not have a PAN.

   5.29 Aadhaar is a 12 digit unique number issued by the Unique Identification Authority of India (UIDAI). Aadhaar, meaning ‘foundation’, is intended to serve as proof of identity rather than citizenship or nationality. While Aadhaar is not mandatory, it can be used to facilitate access to Government services and welfare. Increasingly, an Aadhaar is required to access services such as bank accounts, school enrolment, obtaining a SIM card and online transactions such as ride-sharing services. Holding an Aadhaar is not a guarantee of rights, benefits or entitlements.

   5.30 To obtain an Aadhaar, a person must provide their name, date of birth or age, gender and address. A system of introducer-based enrolment also exists in the absence of valid proof of identity and address documentation. The introducer is appointed by a Registrar. The applicant must also submit to biometric collection in the form of ten fingerprints, an iris scan and a facial photograph. Aadhaar is not proof of citizenship or residence. Any person residing in India can obtain an Aadhaar card after 182 days of residence. Illegal entrants are ineligible to obtain an Aadhaar, however in practice there is no verification against entry records.

   5.31 The Aadhaar scheme commenced in 2009; by early 2016 it was reported that almost 93 percent of India’s adult (over eighteen) population had an Aadhaar. DFAT assesses that Nepalis in India would, so long as they were able to provide the necessary information and biometric data, enjoy the same access to Aadhaar as Indian citizens and other residents of India.

   5.32 There is no associated algorithm connected to the issuance of Aadhaar to identify details such as age, sex, location of birth or caste of the card-holder. This is a deliberate act by the UIADAI authorities to avoid discrimination.

   5.33 DFAT is aware of only one confirmed instance of a Nepali in India being deported. In 2002 during the time of the Nepal civil war, Bam Dev Chhetri, a Nepali resident in India who was active in Abnes (an organisation advocating for the rights of Nepalis in India and who was alleged to have links with the Maoists), was deported (along with five others active in Abnes). The deportation occurred just prior to a visit to India by the then King of Nepal and followed shortly after a visit to India by the then Nepali Prime Minister during which India was requested to curb the activities of Abnes. A subsequent High Court of Delhi case found the deportation of Chhetri to be lawful. This decision has been criticised by Indian civil society on the grounds that it disregarded India’s obligations under the Treaty and for a failure to follow previous Indian court decisions which said that the Government did not have an unfettered right to deport people from India.

   5.34 Deportations of Nepali citizens from India to Nepal are not impossible, but very uncommon. One incident occurred in 2010, when police in Pune issued a deportation order against the estranged wife of a Nepali politician. The Maharashtra Government suspended the deportation order. On the basis of these two cases, and given the significant numbers of Nepalis living in India who otherwise have not experienced deportation or the threat of deportation, DFAT assesses that there is an extremely low risk that any Nepali would be deported from India and that in the event that such an order was issued, the Nepali would have access to the Indian legal system on the same terms as Indian citizens do for judicial review of the decision.

   5.35 Indians living in Nepal are able to participate in Nepali society and enjoy the same rights as Nepalis, with the exception of being able to join the Nepali public service. The border is open and Indians may freely come and go from Nepal. DFAT is not aware of any patterns of systemic discrimination against Indians in Nepal.

   TREATMENT OF RETURNEES

   5.36 DFAT is not aware of credible evidence of mistreatment of returnees. There is a large, generally efficient movement of people in and out of Nepal each year. On this basis, DFAT assesses that returnees are unlikely to suffer any social stigma upon their return to Nepal or to suffer adverse treatment by their Government.

   5.37 A large number of failed asylum seekers have returned to Nepal from various countries with host-government or international organisation assistance. DFAT is not aware of any difficulties being experienced by these failed asylum seekers on the basis of their asylum seeking history or otherwise.[34]

   [34] DFAT, Country Information Report – Nepal, 1 March 2019, pp. 31–33.

   Independent information – women and Dalits in India

2. The 2020 DFAT report on India[35] provides the following information about women and Dalits in India (underlining added):

   [35] DFAT Country Information Report - India (10 December 2020), pp. 40-46

   Women

   3.113 Traditional social practices and the low status of women in many parts of India can 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 a bride’s family paying a dowry – prohibited under the Dowry Prohibition Act (DPA) (1961) – can lead to female infanticide, sex-selective abortions and dowry deaths (women murdered or driven to suicide in the attempt to extort a higher dowry). Available data likely understates the true extent of violence against women due to underreporting of cases.

   3.114 According to the World Economic Forum (WEF), the condition of women in large fringes of India’s society is ‘precarious’. India ranked 112th out of 153 countries on the WEF’s Global Gender Gap Report 2020 (down four places since 2018). The report states the economic gender gap ‘runs particularly deep’ in India and has widened significantly since 2006. India is the only country of the 153 studied where the economic gender gap exceeds the political gender gap. WEF reports only one-quarter of women, compared with 82 per cent of men, engage actively in the labour market, while female estimated earned income is one-fifth that of males. While India has had a female prime minister for 15 of the past 55 years, female political representation is low: women make up around 10 per cent of the cabinet and the broader ministry.

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

   3.116 The Protection of Women from Domestic Violence Act, 2005 (PWDVA) was enacted to provide more effective protection for female victims of any kind of violence occurring within the family, including physical, verbal, emotional, economic and sexual violence. The PWDVA defines domestic violence as any act, omission or commission or conduct of the respondent, which includes threat or actual abuse.

   3.117 Despite the plethora of laws to prevent crimes against women, in practice violence against women in India continues. Violence can occur throughout the life cycle from pre-birth to infancy, childhood, adolescence and adulthood, and can include sexual, domestic and dowry-related violence.

   3.118 According to NCRB data for 2018 (latest available), there is one dowry death in the country every 78 hours, one act of sexual harassment every 59 minutes, one rape every 34 minutes, and one act of torture every 12 minutes. Almost one in every three married women experiences domestic violence. The NCRB reports women are most at risk in the states of Assam, Haryana and the union territory of Delhi.

   3.119 There are sociodemographic and sociocultural risk factors for various forms of violence and abuse towards women in India. These include patriarchal attitudes towards marriage and motherhood; stigmatisation of unmarried, separated or divorced women; illiteracy and low education levels; low socioeconomic status; and lack of independent income. The custom of dowry and gifts for husbands and in-laws has been found to be strongly related to violence against women in India. According to academics, there is a high risk of violence against women who have a higher economic status than their husbands and who are seen as having sufficient power to challenge the traditional gender roles.

   3.120 Media reports COVID-19 lockdowns in 2020 led to an increase in domestic violence incidents. National Legal Services Authority data from 25 March to 15 May showed a 50 per cent increase in reported cases compared to the same period in 2019. One Mumbai charity reported a four-fold increase in calls from women, many reporting a rise in abuse after their husbands lost their jobs. According to women’s rights organisation Swayam, by mid-May helpline complaints had increased by 60 per cent since the start of the national lockdown. There are multiple hotlines available to report abuse, but DFAT understands operating hours are restricted and some women may not be able to access services. Volunteers staffing helplines stated they received calls from both married and unmarried women.

   3.121 There have been reported acid attacks and so-called ‘honour killings’ against women in India, with sulfuric acid used to disfigure and sometimes kill women and girls over family feuds, inability to meet dowry demands or rejection of marriage proposals. ‘Honour killings’ of women (purportedly to uphold the family honour) have also been carried out in cases of alleged adultery, premarital relationships, rape or falling in love against family wishes. Media reported Indian police registered 251 ‘honour killings’ in 2015, compared with 28 a year earlier when India began counting them separately from murder. In 2019, media claimed the newly-released NCRB’s 2017 Crime in India report had left out ‘honour killings’ because it found the available data ‘unreliable’ and ‘vague’. Most ‘honour killings’ are reportedly from the northern states where the influence of conservative Khap Panchayats over communities is greater. Although official statistics on ‘honour killings’ are not readily available, DFAT understands the practice is not widespread.

   3.122 Single women reportedly make up 21 per cent of India’s female population, at around 73 million. These include unmarried, divorced, separated and widowed women. The 2011 Census recorded an almost 40 per cent increase in their numbers over the preceding decade.

   3.123 According to UNICEF, around one in four girls in India is married before her 18th birthday (see Children). However, UNICEF reports the practice of early marriage is less common in India today than in previous generations. Girls who live in rural areas, come from poorer households or have lower levels of education are considered most at risk.

   3.124 During a 2018 hearing, India’s Supreme Court said female genital mutilation (FGM) violated Articles 15 and 21 of the constitution. The practice is common to the Bohra community, a Shia sub-sect, who live in Gujarat, Maharashtra, Rajasthan, Madhya Pradesh and Kerala. In 2018, a study published by WeSpeakOut, a survivor-led movement, claimed 75 per cent of daughters (aged seven years and above) of all respondents in the sample from the Bohra community had been subjected to FGM. DFAT understands the practice is not widespread among the broader Indian society.

   3.125 The PWDVA requires the states to provide shelters, counselling services and legal aid to survivors of domestic violence; however, the quality and availability of services are limited in practice. Local sources claim women’s shelters in India are run very strictly and do not always provide a safe environment. Shelter residents have reportedly described conditions as ‘unhygienic’ and ‘jail-like’. Shelters were first established to ‘protect’ vulnerable women from prostitution and trafficking rackets under the Immoral Traffic and Prevention Act, 1956. As such, there is stigma associated with attending shelters, with women seen as ‘immoral’ or ‘deviants’ for doing so. Researchers report a shortage of data on the facilities available across states, and on the experiences of women residents in state and NGO-run shelters.

   3.126 Local sources told DFAT there are about twenty shelters across the state of West Bengal, with many women staying more than a decade in the shelters. Sources report rehabilitation is difficult and few women have viable options to leave. Women accessing shelter services are often stigmatised and their families ‘will not take them back’. DFAT is not aware of shelter numbers in other states.

   3.127 Counselling services tend to be of poor quality and limited availability. Lawyers Collective Women's Rights Initiative reports a mismatch between the availability of counselling services ‘on paper’, and the quality, nature and professionalism of such services. The provision of counselling services as mandated by PWDVA envisions empowering survivors. However, in practice, women often choose ‘reconciliation’ with perpetrators of domestic violence due to a lack of alternative options, such as economic and housing support or reliable social security schemes.

   3.128 Inequality in inheritance also negatively impacts women in India. There is a lack of uniformity in inheritance laws, with various religious communities governed by personal laws and different states’ scheduled tribes by their customary laws. Many such laws discriminate against women in relation to property or agricultural rights. The basic framework for inheritance differs on the basis of religion rather than the nature of assets. Religions have their own inheritance laws – inheritance rights of other groups are governed by the Indian Succession Act, 1925.

   3.129 Media reports strong patriarchal traditions have translated into a fear of violence that prevents women from claiming their inheritance rights. Other factors include a low awareness among women of their rights. In several northern and western states, women have reportedly given up their claims over ancestral property due to the custom of ‘haq tyag’ or voluntary renunciation. Although there is no official data on inheritance claims made by women in India, the latest census data (2011) notes only 13 per cent of farmland is owned by women.

   3.130 Amendments in 2005 to the Hindu Succession Act, which governs matters of inheritance among Hindus, made women’s inheritance rights equal to those of men. Several states, including Haryana, have lowered registration charges and taxes on properties that are in women’s names. Global land rights advocacy group, Landesa, states this has had minimal impact on women’s property ownership rates. While rising property prices could push more women to claim their inheritance, they still had little control over the property they inherited.

   3.131 DFAT assesses women across India generally face a low risk of official discrimination, in that there are constitutional and legal protections for women. However, women have reported weak property rights, discriminatory regulations and infrastructure constraints to equal business participation, and barriers to reporting crimes.

   3.132 Although, in general, urban women from higher class and caste backgrounds tend to have better access to legal protections, these women may still be pressured by family to hide family violence for fear of maligning their family’s honour and reputation. Other factors that may affect the situation for a woman experiencing violence include the state in which she lives, her class, caste, ethnicity, religion, education and age. Access to services is typically better in urban areas than in rural regions. In addition to the geographic advantages of urban-based communities, education and the standard of literacy has a significant impact on access to services.

   3.133 DFAT assesses women across society, but particularly in rural areas and from lower castes, face a moderate risk of societal discrimination and violence. This can include sexual, domestic and dowry-related violence. The COVID-19 pandemic has highlighted the risk of domestic and family violence towards women in India. Longstanding traditional values and gender roles can restrict the participation of women in the workforce and community, and impact their inheritance rights and access to health and mental health care.

   …

   Caste System

   3.145 Hindu tradition divided society into a hierarchy of hereditary caste groups associated with particular occupations. Four main groups exist within the system’s hierarchy: Brahmin priests, intellectuals and teachers; Kshatriya warriors and rulers; Vaishya farmers, traders and merchants; and Shudra labourers.

   These main groups are further divided into about 3,000 castes and 25,000 sub-castes, each based on their specific occupation. While caste is predominantly a Hindu concept, it has become a cultural phenomenon that exists within other religions and across India’s many social, linguistic and religious communities. The influence of caste has declined over time, especially in cities where castes now live side-by-side, and inter-caste marriage does occur. However, caste identity remains, and last names usually indicate to what caste a person belongs.

   3.146 A group known as ‘Dalits’ (sometimes referred to as ‘Untouchables’ or ‘outcastes’) fell outside the caste structure. Dalits were historically associated with work seen as less desirable; including work involving cleaning or waste, and traditional taboos existed against members of the four castes touching them. Many Dalits continue to work as sanitation workers, manual scavengers, cleaners of drains, garbage collectors and road sweepers. In 2019, it was estimated 40-60 per cent of the 6 million households of Dalit sub-castes were engaged in sanitation work.

   3.147 The government uses the official term ‘scheduled castes’ (SCs) to describe Dalits. The term Dalit encompasses more communities than the official term, and can include nomadic tribes and STs. SC communities exist across India, and comprise 16.6 per cent of the country’s population (2011 Census). When combined, SCs and STs make up just over a quarter of India’s total population. Populations are concentrated in India’s northern states (Punjab, Himachal Pradesh, West Bengal, Uttar Pradesh and Haryana).

   3.148 In recognition of entrenched disadvantage, the constitution contains several provisions relating to SCs (mainly Dalits), STs (tribal and indigenous groups) and ‘Other Backward Classes’ (OBC) (Articles 15-16 and Part XVI: Articles 330-342). These include the establishment of separate National Commissions for SCs, STs and OBCs; reservation of seats in the Lok Sabha and state government legislatures; public service appointments; and access to higher education. Article 17 abolishes the practice of untouchability. OBCs are separate from SCs or STs, and are determined by the central government on a rolling basis with castes and communities added or removed depending on social, educational and economic factors. OBCs are considered educationally or socially disadvantaged. OBCs have an income cap; once reached, they are no longer entitled to reservation. Those who belong to ST/SC communities continue to receive the benefits of reservation irrespective of their socioeconomic status.

   3.149 Reservation or quota policies have been unpopular with upper castes and dominant groups, including the Jats, Marathas and Patels or Patidars. In Haryana, the Jats, an agrarian middle caste, have sought OBC status since the late 1990s. In 2016, Jat protests included a blockade of the capital city, Delhi.  In Gujarat, the Patels, a dominant caste, have sought the removal of quotas for SCs/STs, declaring them unfair and unmeritorious. The Patels have sought OBC status and have engaged in protests (at times violent) over the issue. In Maharashtra, the politically and economically dominant Marathas, have sought OBC status since the 1990s. To date, none of these groups has been afforded OBC status.

   3.150 Some Dalits have achieved high office, helped in some cases by quotas for educational, public service and political representation. Dalit NGOs, community groups and chambers of commerce exist. India’s President, Ram Nath Kovind, is a Dalit from the ruling BJP and is the second Dalit to hold that position. Nonetheless, human rights observers note the problem of social ostracism remains for Dalits.

   3.151 The International Dalit Solidarity Network (IDSN) claims, while legal mechanisms are in place to protect Dalits, their implementation is weak and inconsistent. IDSN reports instances of bonded labour, abuse of Dalit women and girls and the hereditary occupation of ‘manual scavenging’ (removing human excreta from dry latrines). Official crime statistics show violence towards Dalits continues, with the rate of crime against SCs by non-SCs/STs around 21 per cent in 2018. Examples of alleged caste-related crime, based on media reports, include:

   - In September 2018 in Madhya Pradesh, a Dalit man was scalped after he had tried to speak to his son’s upper-caste employers.

   - In October 2018 in Tamil Nadu, a 14-year old Dalit girl was beheaded by an upper-caste man whose wife said he hated the girl because of her caste.

   - In May 2018 in Gujarat, a Dalit scavenger was tied up and fatally whipped outside a factory. The incident was captured on video and broadcast across India.

   - In May 2019 in Uttarakhand, a Dalit man died after he was beaten up at a wedding reception for eating in front of upper-caste men.

   - In September 2019 in Rajasthan, a Dalit man was beaten to death for allegedly stealing a water pump.

   3.152 According to National Family Health survey data, health indicators for India’s more than 80 million Dalit women lag behind those of higher-caste women. One in four Dalit women is reportedly undernourished, and 70 per cent report facing discrimination accessing health care.

   3.153 IDSN reports the conviction rate for rape against Dalit women is under 2 per cent compared to a conviction rate of 25 per cent across Indian society. According to NCRB data, four Dalit women are raped everyday. They also reportedly face regular incidents of verbal abuse, physical assault, sexual harassment and assault, and domestic violence. IDSN has reported Dalit women are almost always punished by police officers when they try to file a complaint, and may be threatened with physical assault or rape, or denied medical treatment for their injuries.

   3.154 DFAT assesses Dalits and other people considered to be of a low caste face a high risk of official and societal discrimination, including social segregation, exclusion, compromised access to education and health care, and a higher risk of sexual assault in the case of women and girls.

   Is there a real chance that [Applicant 1] will face serious harm in Nepal?

1. The applicant has provided no evidence of any attempt to enter and reside in India, successful or otherwise, either to avoid the problems she faces in Nepal, or for any other reason. The Tribunal is not satisfied that the applicant has taken all possible steps to avail herself of the right to enter and reside in India.

   Risk of refugees criterion-related persecution or of ‘significant harm’ in India

2. Section 36(3) of the Act will not apply if the applicant has a well-founded fear of refugees criterion-related persecution in India or there are substantial grounds for believing that, as a necessary or foreseeable consequence of her availing herself of a right to enter and reside in India, there would be a real risk that she will suffer significant harm (s 36(4)).  

3. The Tribunal refers to the country information above concerning this situation relating to women and Dalits in India. That information indicates that there can be significant difficulties faced by Dalit women in India. Those difficulties could be compounded in [Applicant 1]’s case if she were to be in India as a Nepalese woman with a child who is separated from her husband.

4. At hearing, [Applicant 1] indicated an unwillingness to relocate in India because the same problems that she faces in Nepal would be faced in India. The Tribunal accepts the plausibility of this given independent information extracted in this decision concerning the treatment of women and Dalits in India where similar difficulties are faced to those faced by Dalit women in Nepal. The Tribunal considers that those difficulties would be compounded in India by [Applicant 1] being separated, having a child who is also unfamiliar with life in India  and having to make arrangements in a country on her own to support herself and her child at the same time as caring for that child, without any substantial and enduring support mechanisms.

5. The Tribunal is readily persuaded that [Applicant 1] faces a real chance of serious harm in India based on her being a separated Dalit women with a child.

   Conclusion on protection in India

6. In summary, the Tribunal considers that [Applicant 1] has a right to enter and reside in India.

7. However, s 36(3) of the Act does not apply for the reason set out in s 36(4)(a), namely that [Applicant 1] has a well-founded fear of persecution in India based on her being from the particular social group of separated Dalit women with a child.

   Are [Applicant 3] and [Applicant 2] members of [Applicant 1]’s family unit?

8. Taking into account the available evidence, the Tribunal finds that [Applicant 3] is a member of [Applicant 1]’s family unit.

9. The Tribunal accepts [Applicant 1]’s evidence that her relationship with [Applicant 2] broke down in late 2018 and that:

   ·     she has not been living with him since November 2018;

   ·     neither she nor [Applicant 3] have received any financial support from him since November 2018;

   ·     she has not had any contact with him since October 2020;

   ·     she is willing to commence divorce proceedings.

10. Cognisant of [Applicant 2] failure to respond to the Tribunal’s letter on 25 October 2022 or otherwise contact the Tribunal, the Tribunal relies upon [Applicant 1]’s evidence and finds that [Applicant 2] and [Applicant 1] are no longer spouses withing the meaning of s 5F of the Act because:

    ·they no longer have a mutual commitment to a shared life as a married couple to the exclusion of all others;

    ·the relationship between them is not genuine and continuing; and

    ·they are living separately and apart on a permanent basis.

11. Accordingly, the Tribunal finds that [Applicant 2] is not a member of [Applicant 1]’s family unit.

    Conclusion

12. For the reasons given above, the Tribunal is satisfied that [Applicant 1] has a well-founded fear of persecution within the meaning of s 5J of the Act and meets the definition of refugee within s 5H(1) of the Act. The Tribunal is satisfied that [Applicant 1] is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

13. Given [Applicant 3] is a member of [Applicant 1]’s family unit, the Tribunal is satisfied that he meets s 36(2)(b)(i) of the Act.

14. Given [Applicant 2] is not a member of [Applicant 1]’s family unit, and there are no claims for protection raised by or on behalf of him, and none have otherwise arisen out of the material before the Tribunal, the Tribunal affirms the delegate’s decision not to grant him a protection visa.

    DECISION

15. The Tribunal affirms the decision not to grant the second named applicant a protection visa and remits the matter for reconsideration with the following directions:

    (i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

    (ii) that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Peter Papadopoulos
    Member

    
    

    Attachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958

    The relevant law

    The criteria for a protection visa are set out in s 36 of the Act 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, which are extracted below.

    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 below.

    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.

    Extract of key provisions of the 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.

    …