2102967 (Refugee)

2102967 (Refugee) [2023] AATA 4317 (13 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANTS’ REPRESENTATIVE:        Unrepresented
CASE NUMBER:  2102967
COUNTRY OF REFERENCE:                   India
MEMBER:Kate Chapple
DATE:13 September 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the primary applicant a protection visa.
The Tribunal affirms the decision not to grant the daughter a protection visa.

The Tribunal refers the case to the Department to be brought to the Minister’s attention.

Statement made on 13 September 2023 at 12:23pm

CATCHWORDS
REFUGEE – Protection visa – India –applicant wants to give her daughter a better life and to have her educated in Australia – daughter is now an Australian citizen – best interests of the child – serious, ongoing and irreversible harm and continuing hardship to the daughter –sufficiently unique or exceptional circumstances – referral for Ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 351, 417, 499

Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application dated 6 September 2019.
Primary applicant’s written protection claims:
2.1.[reason primary applicant left India] THE APPLICANT DEPARTED INDIA IN AN EFFORT TO REUNITE WITH HER EX-HUSBAND (AND FATHER TO HER DAUGHTER).
2.2.[primary applicant believes this will happen to her if she returns to India] THE IN-LAWS WILL REMOVE HER DAUGHTER FROM HER CARE DUE TO A DOWRY; THERE IS A FEAR THAT THE DAUGHTER WILL SUFFER EMOTIONALLY, PHYSICALLY AND PSYCHOLOGICALLY. GIVEN THE IN-LAWS DEMANDED A DOWRY FROM THE APPLICANT DUE TO THE BIRTH OF THE DAUGHTER (A FEMALE), THE IN-LAWS WILL CONTINUE TO HARASS AND THREATEN THE APPLICANT.
2.3.[reason primary applicant believes authorities won’t protect her] DUE TO CULTURAL EXPECTATIONS AND TRADITIONS, THE APPLICANT DOES NOT BELIEVE THAT THE SECURITY FORCES OR POLICE WILL PROVIDE ASSISTANCE. GIVEN THE APPLICANT'S SOCIAL STATUS AND GENDER, SHE IS DEEMED A SECOND-CLASS CITIZEN AND ANY SECURITY FORCE OR POLICE FORCE WILL SIDE WITH THE IN-LAWS. DUE TO HER GENDER AND SINGLE-PARENT STATUS, THE APPLICANT WILL BE UNABLE TO OBTAIN ANY FORM OF PROTECTION.
2.4.[reason primary applicant believes she is unable to relocate within India] SUCH CONCERNS ARE NOT LIMITED TO HER HOME TOWN BUT ARE A NATIONWIDE ISSUE.
The daughter’s written protection claims:
3.1.[reason secondary applicant left India] THE APPLICANT DEPARTED INDIA WITH HER MOTHER IN AN EFFORT TO REUNITE WITH ESTRANGED FATHER.
3.2.[secondary applicant believes this will happen to her if she returns to India] THE APPLICANT'S MOTHER BELIEVES THAT IF RETURNED TO INDIA SHE AND HER DAUGHTER WILL BE SUBJECTED TO SIGNIFICANT SOCIAL PRESSURES AND STIGMA GIVEN HER SINGLE-PARENT STATUS. THERE IS THE ADDED THREAT OF THE APPLICANT'S IN-LAWS REMOVING THE DAUGHTER FROM THE MOTHERS CARE…THE IN-LAWS WILL REMOVE HER DAUGHTER FROM HER CARE DUE TO A DOWRY; THERE IS A FEAR THAT THE DAUGHTER WILL SUFFER EMOTIONALLY, PHYSICALLY AND PSYCHOLOGICALLY. GIVEN THE IN-LAWS DEMANDED A DOWRY FROM THE APPLICANT DUE TO THE BIRTH OF THE DAUGHTER (A FEMALE), THE IN-LAWS WILL CONTINUE TO HARASS AND THREATEN THE APPLICANT.
3.3.[reason primary applicant believes authorities won’t protect her] DUE TO CULTURAL EXPECTATIONS AND TRADITIONS, THE APPLICANT DOES NOT BELIEVE THAT THE SECURITY FORCES OR POLICE WILL PROVIDE ASSISTANCE. GIVEN THE APPLICANT'S SOCIAL STATUS AND GENDER, SHE IS DEEMED A SECOND-CLASS CITIZEN AND ANY SECURITY FORCE OR POLICE FORCE WILL SIDE WITH THE IN-LAWS. DUE TO HER GENDER AND SINGLE-PARENT STATUS, THE APPLICANT WILL BE UNABLE TO OBTAIN ANY FORM OF PROTECTION.
3.4.[reason primary applicant believes she is unable to relocate within India] SUCH CONCERNS ARE NOT LIMITED TO HER HOME TOWN BUT ARE A NATIONWIDE ISSUE.
Other departmental records:
4.1.Decision record relating to the delegate’s refusal decision dated 2 March 2021.
4.2.Interview audio file.
4.3.Case file.
4.4.Internal records relating to the applicants.
Application for review
At the primary applicant’s request, on 11 August 2023 the Tribunal granted the case priority status for compelling reasons.
The Tribunal wrote to the primary applicant inviting her to attend a hearing on 30 August 2023 and to provide pre-hearing submissions. At the primary applicant’s request, the Tribunal re-scheduled the hearing to 12 September 2023 to allow the primary applicant the opportunity to seek legal advice.
Prior to the hearing, the primary applicant provided to the Tribunal confirmation that she intended to participate in the hearing, together with the following key documents:
7.1.Australian citizenship certificate noting the primary applicant’s former husband is an Australian citizen and that citizenship was acquired on [date] November 2014.
7.2.Federal Circuit Court of Australia Divorce Order relating to the marriage between the primary applicant and her named former husband effective [date] August 2016.
7.3.Daughter’s birth certificate and passport.
7.4.Signed tenancy agreement dated 12 February 2020 for the term 29 February to 29 August 2020 in which the primary applicant and her former husband are named as tenants.
7.5.Protection Order made by [a] Magistrates Court on [date] April 2020 in force to [date] April 2025 in which the primary applicant is named as the aggrieved and her former husband is named as the respondent, and related statement and affidavit by the primary applicant and police applicant.
7.6.[Employer 1] pay advice relating to the primary applicant’s employment.
7.7.Australian Citizenship certificate noting the daughter is an Australian citizen and that citizenship was acquired on [date] February 2023.
The Hearing
The primary applicant appeared before the Tribunal at a hearing conducted in person on 12 September 2023, with the assistance of an interpreter (in person) in the Punjabi and English languages. The primary applicant was unrepresented.
The primary applicant gave evidence summarised by the Tribunal as follows:
The primary applicant was born in [date] in Bathinda, India where she grew up with her parents, sister and brother. Her parents were farmers and her siblings are business owners. She completed her [degrees] in India. She was employed as a [Occupation 1] from 2011 to 2019.
At age [age], the primary applicant’s relatives arranged for her meet her former husband who was from a different district and had been living and working [in] Australia since around 2006. She had a phone call with him in 2011 and a ring ceremony in 2012. Both families spent time together in the park to get to know one another. The primary applicant and her husband wanted to have a relationship and to marry. They married in October 2013 and a wedding celebration was held.
After the wedding, the primary applicant and her husband went to live with his father and siblings. During that time, everything was fine in the relationship and with his family. She knew he intended to return to Australia and believed he would sponsor her partner visa application. The husband returned to Australia in December 2013. The primary applicant engaged a migration agent to prepare and lodge a partner visa application in February 2014. She was pregnant at the time.
After the former husband left India, the primary applicant continued living with the in-laws until March 2014. She was unwell during her pregnancy and experienced episodes of loss of consciousness. The in-laws wouldn’t let her call her husband in Australia. They told her that because she didn’t marry in Australia, she wouldn’t be going to Australia. Their attitude to her changed when she was pregnant; they didn’t let her have the medications she needed, she wasn’t allowed out, and they yelled at her. The husband got angry with her when she told him about how his family were treating her. He nevertheless returned to India in February 2014 for a month to see her.
In March 2014, the in-laws sent the primary applicant to live with her parents saying that the baby had to be delivered there. She told her mother about how the in-laws had been treating her; her mother said everything would be fine when she and her former husband were together again. The primary applicant didn’t work during her pregnancy; her parents supported her. Her daughter was born in [month]. The baby had a problem with [a body part] that needed medical attention. While living with her parents, the husband rang the primary applicant every day from Australia.
The husband told the primary applicant that he would only bring her to Australia if she was living with his family. In February 2015, her parents took the primary applicant and her daughter back to the in-laws, however they were turned away. They told her the daughter was not the child of the husband. When she told her former this, he accused her of lying.
In September 2015, the primary applicant’s migration agent told her that her husband had withdrawn his sponsorship of the partner visa application. She also received a letter from the Australian Immigration Department.
The families and relatives from both sides got together in a village council and put pressure on the primary applicant to give up her daughter to the in-laws, and marry someone else. The primary applicant’s father was in favour of this, however her mother supported her. The Tribunal queried why the in-laws wanted to take the daughter if they claimed she wasn’t the child of the husband.
The primary applicant and daughter lived with her parents from February 2015 to February 2019. She continued working as a [Occupation 1] during these years and supporting her daughter. She cried every day. Pressure continued from neighbours and relatives to give her daughter away. She went to the police in 2016 telling them her in-laws wouldn’t allow her to go to Australia and were creating misunderstanding with her husband. The police told her to give her daughter away, and didn’t otherwise respond to her complaint.
The Tribunal commented that it doesn’t seem normal for family members to be pressuring the primary applicant to give her daughter away to the in-laws. The primary applicant responded that the in-laws were wealthy, with big guns and a strong political network, however she doesn’t know how they made their money. If they took her daughter, she knows they would kill her. They didn’t spend any money on her delivery or medical treatments. They blamed her for having a girl, not a boy. They wanted to take the daughter and cut the primary applicant off.
The primary applicant made contact from India with a social worker in Sydney through [social media] then [social media]. She told the social worker about the pressure from family, the destruction of her marriage and her daughter’s suffering.
The primary applicant came to Sydney, Australia in February 2019 on a one year visitor visa. Initially she came alone for 10 to 15 days while her daughter remained in India with her parents. She wanted to track her husband down and ask him why he withdrew the partner visa sponsorship and why he left his wife and daughter. She met with the social worker soon after she arrived. The social worker told her that she had been deceived in a big way. The primary applicant attended a dowry summit with the social worker and lawyers who also attended advised her to go to the Family Court.
The primary applicant attended the Family Court in [a suburb] and produced her marriage certificate and her daughter’s birth certificate. She found out there that she was divorced. The Tribunal noted that the Divorce Order was effective [date] August 2016. The primary applicant wasn’t aware of the divorce until early 2019. She and her daughter cried outside the court in the rain.
The primary applicant returned to India in March 2019 to prepare to bring her daughter back to Australia. She didn’t tell her parents of her plans. She and daughter came to Australia in June 2019 on the same visitor visa. This was at the start of the school holiday period.
The primary applicant’s landlord at the time referred her to a lawyer who advised her to apply for a medical treatment visa when her visitor visa expired. The lawyer said he would appeal the deceit against her. He kept asking her for more and more money for the medical treatment visa application, which was lodged, however the visa was refused; the primary applicant doesn’t know the reason.
The primary applicant went to Legal Aid and explained her circumstances. She was advised to apply for a protection visa. She understood the visa would protect her and her daughter, no one could harm or separate them, and there would be no societal pressure. The Legal Aid lawyer lodged a protection visa application on her behalf in September 2019. The Legal Aid lawyer also made a child support application on her behalf. She started receiving $180 per month child support from her now former husband.
When the former husband received the letter from Legal Aid regarding his child support obligations, he began calling the primary applicant saying he didn’t want to pay child support and urging her and the daughter to live with him, even though he had married a second time and divorced. He was aware the primary applicant had applied for a protection visa because Legal Aid had notified him. The primary applicant’s parents and family are not aware of her protection visa application.
In December 2019, the primary applicant emailed her resignation to the [employer] in India where she had been employed because she did not intend to return to India.
The former husband came to Sydney in January 2020 to collect the primary applicant and her daughter and return with them to Brisbane. He was very happy with the daughter because they were facially very similar. He promised the primary applicant a partner visa and that they would live together as a family. He also promised that the primary applicant could work. They lived together for 3 months. The first month, he was good, then he raped her and made her pregnant. She wanted to get a job, be independent, and save money; he didn’t listen, he wanted one more child so she had to stay at home. She was developing physical and mental issues.
The last contact the primary applicant had with the former husband’s family was during the 3 months she resumed living with him. He would hand the phone over to her and she spoke to his sister. The sister enquired about her health. The primary applicant doesn’t know whether the sister was being supportive.
After 3 months, the primary applicant had an abortion, and lived in a women’s shelter for 3 to 4 months with her daughter. They then moved to a share house, she studied and got an [assistant] job. She volunteered [for] two years, and now has a casual job at a [workplace].
The last contact the primary applicant had with her former husband was 2021 when he video called her daughter, then after that he blocked them. The Tribunal noted there was a domestic violence order against the former husband dated 2 April 2020. He would text the primary applicant when he wanted to speak to the daughter.
The former husband also had a domestic violence order made against the primary applicant because he didn’t want her or the daughter to be in Australia.
The primary applicant thinks her former husband is in Australia, but doesn’t know where; he is paying child support.
The primary applicant has contact with her mother in India every month or so. Her daughter doesn’t have contact with the primary applicant’s parents because she has forgotten them.
The primary applicant’s daughter does not have any contact with the former husband’s family in India; the daughter doesn’t know them.
The primary applicant is in Australia because she wants to give her daughter a better life, and to have her educated here. The Tribunal reminded the primary applicant of the requirements for the grant of a protection visa explained at the start of the hearing, and noted that this reason did not satisfy those requirements. The primary applicant said she doesn’t know on what basis she would be granted a protection visa.
The primary applicant said she needed protection from the societal pressure, harassment and humiliation she experienced in India. The Tribunal put to her that there are laws and institutions in India to protect her rights, and she is a very well educated person capable of finding professional employment, living independently and bringing up her daughter in India. She responded that she is a divorced single mother and would not be treated favourably.
Country information
Relevant to the primary applicant’s claims or matters arising from her evidence, the DFAT Country Information Report for India dated 10 December 2020 provides that:
10.1.[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.
10.2.[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.
10.3.[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.
10.4.[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.
10.5.[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.
10.6.[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.
CONSIDERATION OF CLAIMS AND EVIDENCE

In considering the claims and evidence, the Tribunal has taken account of:
11.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
11.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
11.3.The country information set out in this decision record.
The Tribunal notes in particular the following paragraphs of the Migration and Refugee Division Guidelines on the Assessment of Credibility:
12.1.[6] Evidence considered by the tribunal may include written submissions, an applicant’s oral evidence, oral evidence from other persons, information about conditions and laws in an applicant’s country of origin, expert evidence in the form of written reports or oral evidence and documentary evidence provided by an applicant or the Department of Immigration and Border Protection (the department). Applicants for protection visas are often unable to support claims by documentary or other proof.
12.2.[7] The tribunal is not bound by legal forms and technicalities or the rules of evidence. The tribunal considers all of the evidence available in order to make the correct or preferable decision. Evidence is assessed in its entirety, not just in isolated parts. The tribunal assesses evidence by weighing up its probative value and relevance to an applicant’s claims. There is no requirement in law that evidence must be independently corroborated before it can be accepted by the tribunal.
12.3.[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person to meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
12.4.[28] When forming a view on the credibility of claims, the tribunal should consider the overall consistency and coherence of an applicant’s account.
The Tribunal considers that the following key aspects of the primary applicant’s claims and evidence lack credibility, and on that basis are not accepted:
13.1.The primary applicant’s in-laws claimed that her daughter was not the child of the former husband while at the same time pressuring the primary applicant to give up her daughter to them.
13.2.The primary applicant’s in-laws claimed that her daughter was not the child of the former husband while the former husband later briefly lived with the primary applicant and the daughter in Australia in 2020, had contact with the daughter until 2021, and continues to pay child support for the daughter.
13.3.The primary applicant’s father was in favour of the primary applicant giving up her daughter to the in-laws.
13.4.The primary applicant’s relatives and neighbours pressured the primary applicant to give up her daughter to the in-laws.
13.5.The police told the primary applicant to give her daughter up to her in-laws.
13.6.The primary applicant’s in-laws would kill her daughter if the primary applicant gave her up to them.
13.7.The primary applicant was not aware of the Federal Circuit Court of Australia Divorce Order effective[date] August 2016 until early 2019 notwithstanding that statutory service requirements must be met prior to an order being made.
13.8.The primary applicant was advised by a lawyer that applying for a medical treatment visa was a means of redressing the deceit against her by her husband and his family.
13.9.The primary applicant does not know the reason her medical treatment visa was refused.
The Tribunal notes:
14.1.The primary applicant and her daughter lived in India with her parents from February 2015 to February 2019, and during that time, the primary applicant continued her employment as a [Occupation 1], a role she commenced in 2011.
14.2.The only contact the primary applicant has had with her in-laws while in Australia is during the three months she and her former husband and daughter lived together in 2020 when she spoke only to his sister on the phone, and the sister enquired about her health.
14.3.The primary applicant has [various] qualifications.
14.4.The primary applicant’s evidence that she is in Australia because she wants to give her daughter a better life and to have her educated here, and she doesn’t know the basis on which she would be granted a protection visa.
14.5.The primary applicant’s evidence that she needs protection from the societal pressure, harassment and humiliation she experienced in India, and that as a divorced single mother she wouldn’t be treated favourably in India.
14.6.The daughter acquired Australian citizenship on 22 February 2023.
The Tribunal considers:
15.1.The primary applicant did not feel well treated or respected by the in-laws in India for part of the time she lived with them, however there is insufficient evidence before the Tribunal to establish the nature of or motivation for any conduct by the in-laws towards the primary applicant.
15.2.There is insufficient evidence before the Tribunal of dowry or any other form of abuse experienced by the primary applicant at the hands of the in-laws, her parents or any other individuals while she lived in India.
15.3.There is no evidence before the Tribunal of the daughter being given up to the in-laws or any other harm experienced by the daughter or the primary applicant at the hands of the in-laws or any other individuals while they lived in India.
15.4.There is insufficient evidence before the Tribunal of the primary applicant having experienced societal pressure, harassment and humiliation in India.
15.5.The facts of this case primarily concern the breakdown of the relationship and marriage between the primary applicant and her former husband and, as a consequence, the difficulties the primary applicant experienced with her former husband and his family, and the impact on her emotionally of dashed expectations of a future together in Australia with their daughter.
The Tribunal notes the following country information in relation to the status of women and relevant to the primary applicant’s claims:
16.1.Prevailing patriarchal attitudes towards marriage and motherhood, stigmatisation of unmarried, separated or divorced women, illiteracy and low education levels, low socio-economic status, and lack of independent income.
16.2.Single women, including unmarried, divorced, separated and widowed women, making up 21% of India’s female population, and a 40% increase in these numbers over the last decade.
16.3.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.
16.4.Women across society, but particularly in rural areas and from lower castes, face a moderate risk of societal discrimination and violence, including sexual, domestic and dowry-related violence.
The Tribunal considers that if the primary applicant returns to India:
17.1.The primary applicant may experience some official discrimination and/or stigmatisation due to her divorced single mother status, however she worked in her profession and supported herself and her daughter in the absence of her former husband for four years while they were living in India.
17.2.The primary applicant is highly educated and remains capable of gaining professional employment, earning an independent income to support herself and her daughter, and choosing where she lives.
17.3.There is no evidence before the Tribunal that the primary applicant or her daughter would be of adverse interest to the in-laws or any other individuals such as to invoke Australia’s protection obligations.
Application of law
Attachment A sets out the applicable law.
Primary applicant
18.1.The issue is whether the primary applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection.
18.2.The Tribunal finds that:
18.2.1.The primary applicant is a citizen of India and a non-citizen in Australia.
18.2.2.The primary applicant does not satisfy the requirements for protection under the refugee criterion or on complementary protection grounds set out in the applicable law.
18.2.3.If the primary applicant is returned to India, there is no real chance that she would be persecuted, and accordingly she does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
18.2.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the primary applicant being removed from Australia to India there is a real risk she will suffer significant harm.
Daughter
18.3.Subsection 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australian citizens (see s 4 and s 29 of the Act).
18.4.The issue is whether the daughter is now an Australian citizen.
18.5.The Tribunal is satisfied on the evidence before it that the daughter is now an Australian citizen.
CONSIDERATION OF REFERRAL FOR MINISTERIAL INTERVENTION
The Tribunal considers that the circumstances of this case are sufficiently unique or exceptional to warrant a referral to the Minister for possible consideration of the use of the Minister’s intervention powers, according the criteria set out in the Minister’s guidelines on ministerial powers (ss 351, 417 and 501J of the Act).
The Tribunal notes on the evidence before it:
20.1.The daughter became an Australian citizen in 2023.
20.2.The daughter is aged [age].
20.3.The primary applicant is the sole carer of her daughter.
20.4.The primary applicant and her daughter have been in Australia since February 2019 when the daughter was aged [age].
20.5.The daughter attends school in Australia and has done so since pre-school.
20.6.The daughter’s father and former husband of the primary applicant is an Australian citizen and likely residing in Australia.
20.7.The daughter has no contact with her father.
20.8.The daughter’s father pays child support for the daughter.
20.9.The daughter has no contact with her relatives in India.
The Tribunal considers:
21.1.There are circumstances in this case that bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child.
21.2.The separation of the primary applicant and the daughter to facilitate the return of the primary applicant to India on the basis that she is not a person in respect of whom Australia has protection obligations may result in serious, ongoing and irreversible harm and continuing hardship to the daughter because she would need to be cared for by her father with whom she currently has no contact and likely estranged from or another adult unknown to her.
21.3.Returning to India with the primary applicant may result in serious, ongoing and irreversible harm and continuing hardship to the daughter on the basis that the daughter has spent nearly 5 of her [number] years in Australia, she is settled in home and school here, and she has no meaningful connections with relatives or life in India.
CONCLUSIONS
The Tribunal finds that the daughter does not satisfy the requirements of s 36(2), and cannot be granted a protection visa.
The Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the primary applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the primary applicant a protection visa.
The Tribunal affirms the decision not to grant the daughter a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).

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

[2023] AATA 4317

13 September 2023

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction