2104103 (Refugee)

[2024] AATA 2752

2104103 (Refugee) [2024] AATA 2752 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Miss Saemeh Ghasemi

CASE NUMBER:  2104103

COUNTRY OF REFERENCE:                   India

MEMBER:Rosa Gagliardi

DATE:20 June 2024

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 June 2024 at 3:19pm

CATCHWORDS
REFUGEE – protection visa – India – political opinion – ethnic/religious/political conflict and no political connections or protection from authorities – additional claims at hearing of  harassment and violence against women and girls – political and general corruption, poor healthcare and economic hardship – visa and study history, long residence and delay in applying for protection – application made after skilled work visa refused – return visit after mother’s death – young Australian-born child – generalised and unsupported claims – ‘particular social group’ – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 5LA, 36(2)(a), (aa), (2A), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant S469 of 2002 v MIMIA [2004] FCA 64
Kaur v MIMA [2000] FCA 1401
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 March 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of India (a matter the Tribunal accepts) applied for the visas on 18 September 2017.

3. The delegate refused to grant the visas on the basis that they were not satisfied that the applicants were refugees as defined by s.5H of the Act and was therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act.  The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to India, there is a real risk they will suffer significant harm as defined in s.36(2)(aa).

4. The first and second named visa applicants appeared before the Tribunal 17 June 2024, to give evidence and present arguments. The Tribunal did not take evidence from the third named visa applicant given she is a minor and her parents articulated her claims for her.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

11. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicants have a well-founded fear of persecution for reasons, set out in s.5J of the Act, and there is a real chance that if the applicants returned to India now or in the reasonably foreseeable future, they would be persecuted for one of those reasons and whether they would suffer serious harm.  Alternatively, the Tribunal must assess whether the applicant meets the complementary criteria.

14. In her application at question 77, the first named applicant was asked what she thought would happen to her if she returned to her home country and she wrote, “Fear of persecution for conflicting political views to those currently in power”.  Asked if she had experienced harm in her country, the applicant wrote, “No because have left India, but fear of harm if I return”.  Asked if she had relocated elsewhere within the country the applicant indicated, “No, Not possible”. 

15. At Question 81 the first named applicant was asked if she thought she would be harmed on return to India, the first named applicant responded, “Fear of persecution of myself and my husband due to our political views”.  She did not think they would be protected because they had conflicting political views.

16. She also advised at hearing she feared conflict in her home region.  When asked to be more specific with the Tribunal she explained that in the Punjab there was conflict between Sikhs and Hindus.  Her family were Hindus but the majority of persons in the Punjab were Sikhs.

17. At the time of application, the first named visa applicant was asked why she had left her home country and she simply wrote, “political issues”.  Asked at hearing what such political issues were, the first named applicant stated that more specifically it was due to not having any political connections and therefore having no protection from the authorities and being subjected to a lower quality of life.  It is this version of the first named applicant’s claims, that is, that she was not politically connected and therefore vulnerable in Indian society, that the Tribunal will assess her claims against.

18. After her interview with the Department, the applicant made the additional claims:

    ·She fears returning to India because of violence against women

    ·Political and other general corruption

    ·Poor healthcare

    ·She fears her daughter will be sexually assaulted

19. At the time of review the applicant submitted a statutory declaration dated 10 June 2024 set out below:

    I first arrived in Australia on a Subclass 572 visa with my husband, xxx which was granted on 14 April 2009.  We first arrived in Australia [in] April 2009.

    I left India because of the rising political conflict in my region of India where both my husband and I are from.

    I currently only have on (sic) sister left residing in India.  My parents, brother and my other sister have since left India.  My husband’s parents are deceased and he does not have any connection with his siblings.  We do not have any other family residing in India. 

    During my childhood, I belonged to a middle class family.  My father was the only person who was financially supporting our family.  There were [Number] people in my family.  We had to sacrifice a lot of things in my childhood because the ongoing expenses were outweighing my fathers ability to pay for them.  The Government did not assist or support people who do not have any connection to any political leaders.

    During my school years I studied for 12+ years in Government schools where the level of study was substantially lower than the private schools in India.  After I completed my high school years, I wanted to study further, however, there was a lot (and continues to be) corruption in the school and college systems.  The first time I faced such corruption was when I applied for my admission to [College] in my home town.  I was asked for a lot of money in the form of a donation.  I found that the college would admit those who would pay the amount (as it was a bribe).  I tried to apply to other colleges however, I kept facing the same corruption issue.

    I have been mistreated by authorities in India on the basis that I am a woman and that we did not have enough money to fulfil their bribes.  When I was trying to find employment in India, I was faced with a lot of inhumane treatment such as being bribed for sex and when I’d refuse, they would use foul language.  My husband also faced such corruption when he would apply for jobs, however, they would request money from him.  Employers would often pay employees cash in hand instead of what is required so that way they do not pay full-pay-rates and their tax.

    The healthcare system in India is not reliable at all.  My mother-in-law was in hospital to be treated for her heart, however, we were faced with doctors asking for money bribes first instead of doing the humane thing and saving her life.  The best healthcare in India is only accessible for those who are from upper-class families and have the money to pay for such services.

    The authorities mistreated me because we do not have money to pay bribe and refuse to fulfil there (sic) wishes like they do sexual harassment with girls and women also don’t have any political or powerful person recommendation.  The police are also corrupted, they did not assist when I went to file a report because the other parties have political connections.

    I have exhausted as many avenues in India to get help from the authorities.  We have tried to get help from the police, councellor (sic) and mayor but I did not receive any help.  The police asked me for money when I have tried to file a report.

    We have also attempted to relocate in other places in India however, the corruption, poverty, mistreatment of women, drugs and unemployment is widespread.

    My husband and I came to Australia on a student visa.  At that time, we were not aware that we could apply for a protection visa.  It was after my application for a Subclass 457 was refused that I was advised of a protection visa.

    I fear returning to India because of the concern of being a female in India.  I have a little girl, xxx, who was born in Australia and is currently [Age] years old.  My fear of returning to India is for the safety of not only for myself, but also my daughter.  Being a single female in India is a risk.  The situation in India has worsened since I departed especially with the rise of rape cases.  With this in mind, how can I think of returning to India with my daughter?  As my daughter was born in Australia and has grown up in Australia, if we were to return to India, my daughter will suffer a lot with the culture shock, psychologically and emotionally.  She will also suffer as the Australian schooling system is more superior than what it currently is in India.

    After spending 15 years in Australia, how will we manage there with no government support, no job, no people connection, no friends.  Who will help us there? How do we deal with corruption and crime?  What do we do if we need any kind of medical treatment?  There are no facilities like Australia.

    With the rise of unemployment rates in India and with no family support because we don’t have any connection between us and India. My daughter is in [School level] and she was born here.  She has never visited India before; she doesn’t know how the system works there.  How she can manage herself.  I worked here I got the right pay rate, I pay taxes etc, in India there is no future for us that’s why I requested you please give permission to us to stay here.

    We don’t have many family members in India and those who are there don’t have any connection with them; they have their own families.

    I have a well-founded fear of returning home, because I genuinely believe that I will suffer harm or significant harm if I return to India. 

    I will suffer the same type of harm everywhere in India.  As such the real chance of persecution relates to all areas of my home country.

    I am unable and unwilling to avail myself of the protection of my country of nationality or former habitual residence ‘owing to a well-founded fear of being persecuted’.

    There are no effective protection measures available to me in India.

    I fear I will be the victim of significant physical harassment or death if I return to India.

    I also fear that I will be the victim of significant ill treatment if I return to India.

    I also fear that there is a real risk that I will suffer cruel and inhuman treatment, and punishment if I return to my country, due to my political opinion and that I will be vulnerable as a woman in India.

    There is not an area of India where there is not a real risk that I will suffer significant harm, as the real risk of harm is nation-wide.

20. The second-named visa applicant stated at hearing with the Tribunal that his greatest fears in India were unemployment, a widespread drugs problem, and for his and his family’s safety, as kidnapping had become prevalent in India more recently.  In terms of his daughter’s claims, he feared she could be raped or mistreated because she is female, and the authorities do not protect women in India.

21. The first named applicant stated that they were only able to come to Australia because the second-named visa applicant’s mother sold her property to fund their travel and student visas to Australia.

22. The first-named applicant and the second named applicant are wife and husband.

    FINDINGS AND REASONS

23. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).

24. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.

25. On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

26. The Tribunal asked at hearing whether the first named applicant or her husband had political views they expressed in India, and she responded “no”.  It was the lack of political connections that made their lives hard and unfair, she stated.  They had no political connections and could not get ahead in life.   They could also not be protected from harm because of such a lack of connections.

27. The Tribunal notes that the applicant’s claims are generalised in her statutory declaration of 10 June 2024, and that at hearing it was difficult for the applicant to pinpoint her claims in any detail.  The applicant is making absolute claims about being persecuted because she was a woman in India and that she will be so on return, and that her daughter will be also because of a lack of political connections and because they are women, which means they could be sexually assaulted, raped, kidnapped, and murdered with impunity and that absolutely no instrument of the state would assist them.  She has claimed that the system of health is not like that in Australia and that unless she paid inordinate amounts of money she would be deprived of such care, and that her daughter would also be deprived of a private education and confined to a public education which was inadequate and lacking.  The deprived economic conditions in India would mean getting a job would be difficult and their daughter would be forced to live a life like she and her husband had lived. 

28. The Tribunal having scanned country information accepts that there are significant problems in terms of the authorities’ attitudes towards women and sexual assault and rape and that the law enforcement regime is reluctant and inefficient in protecting women because of a patriarchal mindset [1]. Nonetheless, the Tribunal finds that the applicants’ generalised and unsupported claims add to its serious concerns about the motivation for lodgement of the protection visa application at the time, and in the circumstances, that the parties did so. The Tribunal also found the applicants’ evidence at hearing laboured and the Tribunal was required to significantly prompt the first named visa applicant to give precise details about exactly what had happened to her in India.

    [1] ‘Violence against women’, Indian Journal of Psychiatry, Indian Journal of Psychiatry (lww.com).

1. These concerns that the applicants wish to remain in Australia solely to achieve a migration outcome are heightened by the fact that the applicant in her interview with the Department stated that she came to Australia for a bright future and that she, her husband, and her family were concerned about the political situation and decided that Australia was the best place to live.  She also confirmed at that interview that she came to Australia with her husband for study with a view to migrating permanently.  At hearing with the Tribunal, the applicant repeated that she wanted to stay in Australia for a brighter future, because India was not a good place to live, given all the problems she had outlined.  These statements are by no means determinative of the review but do indicate that the applicants were migrating to Australia with a long-term view to remaining here to better their economic and social circumstances where they could access high quality health care and other benefits living in Australia confers, such as transparent pay rates and a higher standard of living generally. 

2. Having had regard to the applicant’s migration history as set out below, the Tribunal does not accept that the applicants ever held a subjective or objective fear of serious harm in India, or that there is a real risk they will suffer significant harm, as they only lodged the Protection visa application when their avenues for remaining in Australia had narrowed considerably. 

   
   
   

   14 April 2009 – TU-572 Student visa granted

   [April] 2009 – arrived in Australia

   15 October 2009 – applied for a Skilled – VC-485 Graduate visa (Dependant applicant)

   [February] 2011 – departed Australia

   [April] 2011 - arrived in Australia

   25 August 2011 – applied for TU-572 Student visa

   16 September 2011 - VC-485 Graduate visa application withdrawn

   15 October 2013 – TU – Student visa granted

   5 June 2014 – applied for TU-572 Student visa

   8 July 2014 – TU-572 Student visa granted

   17 February 2016 – applied for UC-457 Temporary Skilled Work visa

   4 May 2017 - UC-457 Temporary Skilled Work visa
   application is refused

   18 September 2017 – Applied for XA-866 Protection visa

3. The first named visa applicant has stated that she wanted to remain in Australia to complete her studies and that she had completed an assortment of Diplomas in [subjects], to name a few, and that she wanted to stay in Australia “legally”.  The Tribunal does not accept that had the applicants had a genuine fear of persecution they would have waited 8 years after their arrival in Australia to lodge a Protection visa application.  It is not as though the conditions in India for women and generally, suddenly worsened in September 2017, when she finally lodged this protection visa application.

4. The Tribunal finds it would have been evidently clear to the applicants after engaging with migration agents and attempts to attain student visas and a Temporary Skilled Work visa, that these were only temporary visas and would not guarantee permanent protection in Australia.  The Tribunal also does not accept that the first named applicant first heard about a protection visa was when her migration agent told her, after being refused a Temporary Skilled visa, that “her only option now was a protection visa”.  A fear of serious harm is immediate, deep and pressing, and to have waited 8 years to give utterance to claims of fearing returning to India diminishes the applicants’ credibility significantly, and the Tribunal rejects that had the applicants had any such fears either subjectively or objectively, they would have waited such an extensive period to seek help to make sure that any visa applied for in Australia would grant them durable and long-lasting protection. 

5. The first-named visa applicant was able to negotiate her way around the migration system in Australia over a lengthy period, and the Tribunal rejects that it was only when it became clear to the applicants that the Protection visa application was one of a very few viable options for remaining in the country that they applied for this visa.  Even after the refusal of the Temporary Skilled visa the applicants waited another 4 months to lodge the protection visa application.  It is not clear whether during these months the applicants were lawful or unlawful, however, the Tribunal does not accept that had the applicants had a genuine fear of returning to India, they could not have applied for the protection visa immediately on being refused the Temporary skilled visa or earlier. 

6. The Tribunal places adverse weight generally on the delay in lodging a protection visa application by the applicants as it indicates that their fear was not abiding or deep. The applicant has been resourceful in Australia in pursuing studies and an alternate visa for remaining here, and it is fanciful that during all that time they could not have expressed to anyone that they could not return to their home country because they had genuine fears of facing serious harm. 

7. The Tribunal also notes that the applicants returned to India for a period in 2011.  When asked about this matter at hearing the first named visa applicant stated that her mother-in-law had died, and it was the least they could do to attend the rites given she had sold her home for the applicants to come to Australia.  The first named applicant also stated it was for a short period only.  Nonetheless, the applicants’ return to India, while again not determinative of the review, is consistent with the Tribunal’s findings that the parties do not have a subjective or objective fear of returning to India but that their preference is to remain in Australia to access a better way of life.  Given the first named applicant claims that as a she genuinely feared for her life it was open to her to remain in Australia where she would have been safe, while her husband tended to his mother’s rites.

8. Even if the Tribunal were to ignore the applicant’s long migration history in Australia as adverse material (and it does not), the Tribunal would have had difficulty with the applicants’ claims even had they been lodged immediately on arrival in Australia.  This is because the applicants’ claims lack specificity and in one case (relating to her claims of sexual assault are incongruous with her spouse’s evidence) and point to the parties having a general lack of satisfaction in living in India rather, than having a well-founded fear of persecution for any reason pursuant to s.5J.

   Claims of sexual harassment and assault by the first named visa applicant

9. The applicant made generalised claims at hearing of facing sexual harassment and assault by potential employers because she was a (unmarried) woman and that this was common in India.  The Tribunal accepts that violence against women in India is a scourge that is not being appropriately addressed by the authorities due to perceptions of crimes against women as permissible. 

   The National Commission for Women (NCW) registered 28,811 complaints of crime against women last year and about 55 per cent were from Uttar Pradesh. 

   The highest number of complaints were received in the right to dignity category that involves harassment other than domestic violence and it stood at 8,540, according to NCWW data.  This was followed by 6,274 complaints of domestic violence.

   Dowry harassment complaints stood at 4,797, molestation complaints at 2,349, police apathy against women complaints at 1,618, and rape and attempt to rape complaints at 1,537, the data showed…[2]

   [2] ‘Over 28k complaints of crimes against women received in 2023, 50% from UP’, Press Trust of India, New Delhi, Business Standard, 'Over 28k complaints of crimes against women received in 2023, 50% from UP' | India News - Business Standard (business-standard.com).

10. Such information is corroborated by other country research:

    With the Indian general elections underway, there are two different narratives on women doing the rounds.  One is that of women-led development, development that no only benefits women but that is driven by women’s leadership.

    The second has continued to simmer under political dog whistles.  Violence against women in the private, public and online sphere is still rampant in India and limits the extent to which women feel safe to participate in public life.

    The country has seen a surge in crimes against women, according to figures from the National Crime Records Bureau.  A staggering 445,256 cases were registered in 2022 alone, equivalent to nearly 51 reports every hour – a four per cent increase from 2021.

    Concerns about safety limit the movements of too many women – including when they step out to work.  It’s not surprising that so many are still working in low-paid jobs with fewer prospects for career development, or so-called ‘feminine’ jobs where they might have more female collages or be able to stay closer to home and avoid negotiating public spaces.

    ‘When I am looking for a job, I have so many considerations apart from the salary and the position’, says Alka, an English language student at Delhi University. ‘I must consider how far the office is, if the route is safe to travel in the evening, or even if it would entail working late shifts.  So honestly my choices are very limited.’

    During 2022 the majority of crimes against women were categorized under ‘cruelty by husband and his relatives’ (31.4 per cent), followed by kidnapping and abduction (19.2), assault ‘with intent to outrage her modesty’ (18.7 per cent) and rape (7.1 per cent).

    Marital rape is still not a crime in India, despite the fact that it is disturbingly common…
    
    Since the 1970s, the Indian women’s movement has been pivotal in bringing issues like rape, dowry deaths and female foeticide into the national conversation, leading to significant legal reforms such as the criminalization of cruelty towards wives in 2005.  Over the years thousands of us have taken to the streets to demand change.  Indian women have led a relentless fight for justice and equality in a deeply patriarchal society.

    But while the government can make laws and implement prevention and response strategies, and women can march on the streets and influence policy, the real work to address violence against women has to be a collective people’s movement, from our homes to the street, and with one key ally, too often missing in action – men.[3]

    [3] ‘India needs collective action to combat violence against women;, Nilanjana Bhowmick, 21 May 2024, New Internationalist, India needs collective action to combat violence against women | New Internationalist.

11. From all the country information before it, including that in the Department of Foreign Affairs and Trade, Country Report on India, the Tribunal is in no doubt that women in India, whether they be from a lower class, higher class, lower caste, well-educated or not, continue to be face serious challenges.[4]

    [4] ‘DFAT Country Information Report India’, Australian Government, Department of Foreign Affairs and Trade, 10 December 2020.

12. In her statement of 10 June 2024, the first named applicant wrote, “When I was trying to find employment in India, I was faced with a lot of inhumane treatment such as being bribed for sex and when I’d refuse, they would use foul language”.

13. When the Tribunal drilled down to how many times she had actually been faced with sexual harassment as a (single) woman applying for a job prior to her arrival in Australia, she finally settled on one occasion.  Asked to provide details about this experience, for example, who her potential employer was and the industry in which she had applied in, she stated it was a big financial company and that she was applying to be a receptionist.  When asked, she named the person who had interviewed her as [Mr A].  The Tribunal asked the applicant to set out exactly what happened during this encounter and when it had occurred.  The applicant stated that it was in 2008 just prior to getting married.  She was told she had to pay a bribe if she wanted the job and if she did not have the money (which the applicant claimed she did not) she could pay in some other way.  The applicant took this to be sexually.  He then started touching her.  Asked how she reacted, the first named applicant stated that she was sitting on a chair and left because she was uncomfortable.

14. When the Tribunal asked the second named applicant how many times his wife had been harassed and sexually assaulted whilst looking for a job, he replied that it had been many times. The Tribunal put to the second named visa applicant pursuant to s.424AA of the Migration Act that in fact the first named applicant had stated once. The Tribunal explained that this matter was relevant to the review because he had given inconsistent evidence in an important aspect of their claims, and that if the Tribunal relied on this information, it would not accept that the first named applicant ever experienced sexual harassment or assault in the course of applying for jobs given the inconsistency in their evidence.

15. The second named applicant availed himself of a break to respond and on resumption of the hearing advised that actually he meant she had been harassed and assaulted on three different occasions, including by the police and the authorities but that in terms of an employer, it had only been once.

16. The Tribunal does not accept that had the first named visa applicant experienced such trauma she and her husband would not have had a clear understanding as to the exact times and events of a sexual assault by a prospective employer.  The Tribunal finds instead that the second named visa applicant was revising his account to be consistent with the first named visa applicant after the inconsistency had been pointed out, and that this inconsistency arose because the first named visa applicant never experienced harassment or sexual assault by a prospective employer, the authorities, or any other persons on the basis of their political or imputed political opinion or for any reason under s.5J.

17. The first named applicant also gave vague answers about reporting the matter to the police stating that they refused to take a complaint because of the powerful nature of the person she was complaining about.  The Tribunal asked the first named visa applicant whether she had lodged a First Information Report (FIR) for example.  The Tribunal explained that the FIR was a statement of recorded by the police on duty given by the aggrieved person.[5]  Section 154 of the Code of Criminal Procedure, 1973 defines what amounts to ‘first information’.[6] It is on the basis of this report that the police may pursue an investigation.[7] The Tribunal stated that the police could have pursued an investigation or discarded the report but it was the usual means of the police taking complaints in India. 

    [5] ‘First Information Report (FIR), Legal Services India, First Information Report- FIR - IPC (legalserviceindia.com).

    [6] Ibid.

    [7] ibid.

18. The first named visa applicant stated that they simply would not take a report and gave vague evidence that the person complained of, was politically connected and there was a cover up for him.  The applicant was unable, however, to speak spontaneously about how the police were aware that the personality who it is claimed assaulted her had political connections, the location of the police station and was unable to spontaneously provide precise dates about her and her family’s claimed approach to the authorities over the claimed instance of sexual abuse.  Nor did the first named applicant even refer to attempting to lodge a FIR and provided little information about how she might have done this, and who precisely would not take the complaint.

19. On the basis of the limited evidence before it the Tribunal does not accept that the first named applicant was ever subject of a sexual assault or harassment by a prospective employer and that law enforcement authorities covered up the crime because the Tribunal does not accept that such a crime in respect of the first named applicant ever occurred on the basis of her political or imputed political opinion or for any reason under s.5J.

20. The applicant has stated that it was not only her prospective employer who sexually assaulted and harassed her, but that as per her statement of 10 June 2024, “The authorities mistreated me because we do not have the money to pay bribe and refuse to fulfil there (sic) wishes like they do sexual harassment with girls and women also don’t have the any political or powerful person recommendation.  The police are also corrupted they did not assist when went to file a report because the other parties have political connections”.  The Tribunal finds that her statements are generalised ones without any supporting information.  The details provided by the first named applicant around what would have been extremely traumatic events unconvincing and lacking in detail.  No clear evidence has been given about which individuals in authority or others sexually assaulted and harassed her because she had tried to get assistance because of an alleged sexual assault by a prospective employer.  Nor is there any information about where such events occurred.

21. When the Tribunal attempted to seek information about how exactly the police and other authorities treated her badly, the first named applicant and the second named applicant gave evidence that they gave her looks which presumably suggested lewd intent.  Again, the applicants were not able to place such “looks” in time and place and the Tribunal rejects that the first named applicant approached the police or anyone else and was viewed sexually.  This is because the Tribunal has rejected that the first named applicant was ever subject of a sexual abuse by a prospective employer, and therefore rejects that the applicant or any member of her family then attempted to approach the authorities, only for the applicant to be assaulted by them also.  The applicants have not established this aspect of their claims.

22. The Tribunal would have expected, for example, that had the applicant been dismissed and harassed by the authorities in any way she could have turned to such agencies as The National Commission for Women, or other women’s organisations who care for women who have been sexually assaulted, such as the International Foundation for Crime Prevention and Victim Care, and Majlis Law [8]. Nor does the Tribunal have evidence of the first named visa applicant and her family seeking assistance from a doctor for any psychological harm that might have arisen from sexual assault of any kind.

    [8] ‘5 Organizations in India that help women who faced violence’, The Borgen Project, 5 February 2023, 5 Organizations in India that Help Women Who Faced Violence  - The Borgen Project.

23. The Tribunal is aware that even though it finds that none of these events occurred, it is required to assess whether there is a real chance that were the applicant to return to India now or in the reasonably foreseeable future (the test is future driven), the applicant would face serious harm.  Hence, having dismissed the first named visa applicant’s claims regarding sexual harassment and assault by either a prospective employer(s) or instruments of the state, such as the police, the mayor or counsellors, the Tribunal is required to assess whether the applicant would face such harassment or assault on return to India now or in the reasonably foreseeable future.

24. The Tribunal rejects that as the first named applicant claimed initially in her statement of
    10 June 2024, and the evidence of the second named applicant at hearing, every time the applicant attempted to gain employment she was subjected to extortion of bribes and subjected to sexual harassment and assault.  The Tribunal does not accept such absolute, general, and exaggerated claims.  While as the country information above shows that women do find obtaining employment difficult due to concerns about their safety, the Tribunal has not been able to find information pointing to every female, single or married, seeking employment in India being subjected to bribes and sexual harassment and assault.  The Tribunal finds that the applicants have not made out such claims, and the Tribunal rejects them. 

1. In addition, the first named applicant is now married with a child, meaning she has male protection and as was evident at hearing, the second named applicant was supportive of her and is a protective husband and father.  The first named applicant’s profile has changed.  Furthermore, the applicant has gained considerable skills in Australia, including as a store manager, as well as setting up and running her own [business].  The first named applicant would not be returning to India without any skills where she would have no choice but to undergo harassment and sexual abuse by prospective employers. 

2. Having successfully set up her own business in a foreign country like Australia, the Tribunal finds that the applicant has the option of doing so again in India with her husband to support her family, so she need not face having to seek employment from other companies or male dominated industries.  The Tribunal finds that the applicants would not face serious harm as per s.5J(5) in that they would be denied the capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist, either on account of not having political connections, being middle class, being female or for any other reasons. 

3. The first named applicant has not explicitly argued that she is a member of a particular social group, being “women in India”.  Even if she did, the Tribunal would have difficulty accepting that all women in India are owed protection simply because they are women, and that women without something more, comprise a particular social group.  The UNHCR has adopted that states in the exercise of their sovereignty are free to adopt the interpretation that women asylum seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered as a “particular social group” within the meaning of Article 1A(2) of the 1951 United Nations Refugees Convention.[9]  The Tribunal has not accepted, however, that the first named visa applicant would face harsh or inhuman treatment in India because she is a woman now or in the reasonably foreseeable future.  She does not have a political, religious or racial profile that would attract harm and there is nothing in her characteristics that would elevate her beyond the profile of the hypothetical woman in India. 

   [9] ‘Women as ‘Members of a Particular Social Group’ Some flexible judicial developments’, Udara Jayasinghe [2006] AltLawJl 20; (2006) 31(2) Alternative Law Journal 79, Jayasinghe, Udara --- "Women as 'Members of a Particular Social Group': Some Flexible Judicial Developments" [2006] AltLawJl 20; (2006) 31(2) Alternative Law Journal 79 >

   It is relevant to note that while those fleeing sexual and gender-based persecution might in some circumstances be part of a particular social group, the Tribunal has not accepted that the first named applicant and the third named applicant (see below) will be discriminately subjected to such harm by the state or anyone else or that the Indian State would withhold protection to the first named applicant in future on the basis that she is a woman. 

4. Australian courts have tended to favour an assessment of subsets of social groups that have specific characteristics or circumstances that separate them in comparison, “Sikh women in India” for example, or “Thai women discriminated against because of their gender”.[10]  In Applicant S469 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 64 (6 February 2004) the Federal Court of Australia Applicant S469 of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCA 64 (6 February 2004) it was considered that females in Thailand do not constitute a ‘particular social group’ as they do not have some form of internal linking or unity of characteristics, attributes, beliefs, interests or goals to make the a cognisable group in Thai society.[11]  Similarly, in the case of Kaur v MIMA (2000) FCA 64, it was held that Sikh women were far too diverse a collection of persons to be seen as united or cognisable to be considered a social group under the Refugees Convention.[12]

   [10] Ibid.

   ¹² Ibid.

5. The Tribunal appreciates that the law in this area is evolving and that there may be instances where women might form a particular social group.  The Tribunal in the context of the lengthy delay in lodging their protection visa applications, together with the anomalies in the evidence, including that the applicant would be returning to India armed with several Diplomas in sectors such as [subjects], leads the Tribunal to find that it does not accept that the applicant forms membership of the particular social group, “Women in India”, or “Hindu women in India”, because the Tribunal does not accept that such particular social groups exist.  The Tribunal might have taken a different view, however, of “Women in India who have been sexually assaulted by the authorities and prospective employers”.  Had the Tribunal accepted the applicants claims about having been sexually assaulted by a prospective employer/s and the authorities, the Tribunal would have accepted that the applicant was part of what is a particular social group – “Women in India who have been sexually assaulted by the authorities and prospective employers” and made an assessment of a real chance of persecution based on such a particular social group.

6. In this case, the Tribunal has found that there is not a real chance that the first named visa applicant would face serious harm any more than any other woman in India because the risk is generalised.  This is particularly so as the Tribunal has found that the applicant has no political profile or any imputed political opinion.

   s.5LA – Effective protection measures – accessibility to protection; durable protection; appropriate criminal law, a reasonably effective police force and an impartial judicial system

7. As reflected in the Department of Foreign Affairs and Trade (DFAT) Country Report on India, and in the Departmental decision, the Constitution of India devolves responsibilities for the police and public order to the states.  According to reports many Indians will choose not to report crimes to police as the 2019 Status of Policing in India Report found that two in five police officers surveyed said that people were hesitant to rely on them due to a perception of corruption and inadequacy.[13]

   [13] ‘DFAT Country Information Report India’, Australian Government, Department of Foreign Affairs and Trade, 29 September 2023, country-information-report-india.pdf (dfat.gov.au).

8. Police strength has increased over time with higher government expenditure, but the police are reported to be overburdened and to need improvements in police infrastructure such as vehicles, weaponry and communication.[14] Furthermore, the constabulary suffers from issues such as harsh working conditions (lack of housing facilities).[15]  Other problems include a lack of diversity in the police force and corruption[16]

   [14] ‘Police reform in India in 2024-Explained Pointwise, Forum IAS, Police Reform In India In 2024- Explained Pointwise |ForumIAS

   [15] Ibid.

   [16] Ibid.

9. According to DFAT there are, however, women’s police desks and women’s police stations where women can report violence including ‘one stop’ centres throughout the country that are designed to offer a range of services to victims (legal, accommodation or medical services, for example).[17]

   [17] Ibid.

10. The country information shows that women in particular in India face a moderate risk of violence, including sexual violence - a matter the Tribunal does not dispute.  It also does not dispute that the applicants may face corruption on return to India and that the law enforcement agencies and judiciary are institutions that are not comparable to those in Australia.  The country information does not indicate, however, that if on return to India, the applicants require state protection the authorities would intentionally withhold protection because they are beset by corruption.  The authorities in India are not perfect by any means, but the Tribunal does not accept the applicants’ absolutist claims that they cannot access any State protection given, though patchy, the protection provided is reasonable due to a reasonably effective police force and an impartial judicial system.[18]

    Claimed attempts at relocation

    [18] ‘DFAT Country Information Report India’, Australian Government, Department of Foreign Affairs and Trade, 29 September 2023, country-information-report-india.pdf (dfat.gov.au).

11. While this matter is again of itself not determinative of the review, the Tribunal raised with the first named applicant that she had declared in her declaration of 10 June 2024, that, “We have also attempted to relocate in other places in India however, the corruption, poverty, mistreatment of women, drugs and unemployment is widespread”.  The Tribunal asked the first named applicant where precisely she tried to relocate to.  She then attempted to revise her evidence by stating they had not actually relocated anywhere but had “thought about it”, done research and decided against it.  The Tribunal finds that the applicants’ attempts to generalise their claims to enhance their chances of achieving a migration outcome in this case undermines their credibility.  Either the applicants had relocated, or they had not.  In any event, the Tribunal has found the applicants have not established their claims of persecution and therefore does not accept that they either relocated or thought about relocating within their own country, but finds instead d that the only place they considered suitable for relocation was to Australia for migration purposes and not because they have a well-founded fear of persecution. 

    Women and men without political connections in India who are subject of political corruption as concerns the healthcare system and education and life generally

12. The applicant has claimed that unless one is wealthy in India and able to pay bribes in ventures such as education and healthcare, they are choked completely from participating in society and maintaining any sort of life.  The first named applicant complains that she will be deprived of healthcare of the sort that is available in Australia.  The Tribunal accepts that to use the words of the first named applicant, “the healthcare system in India is not reliable at all” and that her parents-in-law died because they did not have the money to pay for advanced care.  Nonetheless, this conduct towards the first named applicant’s parents-in-law does not appear to have occurred on account of any characteristics that were innate to them or for any reason under s.5J.  Even in more advanced economies, payment of high premiums will guarantee speedier medical intervention with access to a wider range of specialist care. 

13. The Tribunal accepts that the healthcare system in India is not of a standard commensurate with that in Australia, but this does not mean there is absolutely no health care available to Indian citizens. 

    The Indian healthcare system is a diverse and complex network of public and private sectors that provide a wide range of medical services to India’s 1.4 billion inhabitants.  Despite undergoing significant changes over the years, the system continues to face multiple challenges.  These challenges include inadequate infrastructure, a shortage of healthcare professionals, urban-rural disparities, limited health insurance coverage, insufficient public healthcare funding, and a fragmented healthcare system.  India is grappling with a growing burden of non-communicable diseases, which poses a significant challenge to its healthcare system.

    The Indian government has initiated multiple programs to improve the healthcare system.  The National Health Mission improves the availability of medical equipment and supplies.  This also promotes community participation and engagement in healthcare decision-making and service delivery.  The Ayushman Bharat scheme is a health insurance program that provides coverage of up to INR 5 lakhs per family per year for secondary and tertiary care hospitalization. 

    The Indian healthcare system is also witnessing multiple healthcare innovations, ranging from low-cost medical devices to innovative healthcare delivery models.  The country’s healthcare regulatory system is evolving to ensure patient safety, promote high-quality care, and control costs.[19]

    [19] ‘The Transformation of the Indian Healthcare System’, Ankit Kumar, May 2023, National Library of Medicine, National Center for Biotechnology Information, The Transformation of The Indian Healthcare System - PMC (nih.gov).

14. Despite innovations in healthcare in India, low public health investment has led to a heavy reliance on a weekly regulated private sector, with 70 per cent of health care in India being provided by this private sector.[20]   And the Tribunal does not deny that a large proportion of the population remains vulnerable to poverty in the event of serious illness.[21]

    [20] ‘DFAT Country Information Report India’, Australian Government, Department of Foreign Affairs and Trade, 10 December 2020.

    [21] Ibid.

15. As the Tribunal has highlighted, the first named applicant and her spouse are resourceful people who have found work opportunities in Australia in the [work] sector, in a [workplace], and as a store manager, including in [another work sector].  Furthermore, the first named applicant at least has attained an education in several skilled areas in Australia that would mean she is highly employable in a range of sectors, even though the second named applicant might need to work in less skilled areas.  In this context, it is difficult to see how the applicants would not be able to afford some sort of healthcare in India either in the private or public sector.

16. Furthermore, the parties have not established their claims that their lack of political connections means that they will be deprived of healthcare.  The country information does not indicate this is the case.  While inadequacies in the healthcare system exist, the Tribunal has no evidence that disparities in the delivery of healthcare are a product of the Indian authorities’ intent to harm the applicants and the Tribunal rejects this contention. 

17. The Tribunal does not accept that only those with political connections or who are corrupt are able to access the minimum of healthcare to be able to survive in India.

18. In terms of the applicant’s past inability to progress to [College] in her hometown because of the cost, again the Tribunal does not have evidence that differing access to education is based on the Indian State’s intent to harm the applicants directly, because of who they are, and the Tribunal rejects this contention.  In any event, the first named applicant has gained a variety of work experience in Australia which will mean that the family will have access to a greater range of education opportunities even in the private sector (including for the third named applicant) given the diverse work experience of the first named applicant in the first instance.

19. The Tribunal acknowledges that corruption exists in India, however, the Tribunal finds that the claims that corruption has a stranglehold on every aspect of life in India have been exaggerated by the applicants to enhance their claims. 

20. At hearing the first named applicant made the claim that they had faced corruption at the airport by immigration officials in India and that because their passport had a tear in it they were initially not permitted to leave the country, even though finally they were permitted to leave.  The Tribunal does not find this account plausible because had the first named applicant’s passport been damaged, she would have had to obtain a replacement (a matter which is experienced by all travellers and not just the applicants).  It is well known that damaged passports present problems for travellers.  While the applicant did not explain whether the tear involved the obscuring of her identity and details, the Tribunal is not satisfied that any hesitation by immigration authorities in India to enable her to cross the border were motivated by an intent to harm her or her spouse.

21. As reflected in the country information set out by the Departmental decision, and confirmed by other country information, Prime Minister Narendra Modi has publicly expressed a zero-tolerance policy for corruption in government.  In the context of the Lok Sabha Elections 2024, Modi stated that all those who indulged in corruption would face action under the law in the next five years.[22]  He also emphasised, “No force on earth can stop free ration delivery to the poor, this is Modi’s guarantee’.[23]  And at the India Today Conclave 2024 praised the Enforcement Directorate for its rigorous anti-corruption efforts and criticised opposition parties.[24] Moreover, in 2018, parliament passed the Prevention of Corruption (Amendment) Act, which is the major legislative tool covering corruption offences.[25]

    [22] ‘Lok Sabha Elections 2024: All those who indulged in corruption will face legal action in next fiver years, says PM Modi’, 4 May 2024, Deccan Herald, Lok Sabha Elections 2024: All those who indulged in corruption will face legal action in next five years, says PM Modi (deccanherald.com). 

    [23] Ibid.

    [24] ‘PM praises Enforcement Directorate ‘crackdown on corruption’, slams Opposition, India Today News Desk, Ajmal Abbas, 17 March 2024, India Today Conclave 2024: PM Narendra Modi praises Enforcement Directorate crackdown on corruption, slams Opposition - India Today.

    [25] ‘DFAT Country Information Report India’, Australian Government, Department of Foreign Affairs and Trade, 10 December 2020.

22. Despite these political overtures the Tribunal accepts that corruption can create difficulties in everyday life in India, however, the applicants have not made out their absolute and general claims that they will be deprived of access to essential services or assistance from the authorities if required.

    Generalised violence and political violence in the Punjab

23. The applicants have stated that they feared harm due to general violence including kidnapping and particularly between Sikhs and Hindus in Punjab because the Sikhs are in the majority and the Hindus in the minority.  The Tribunal accepts that violence in Punjab whether it has a political or non-political overlay occurs and has historically occurred.  Indeed, much of the country information refers to when the Khalistan (Sikh nationalist separatist) movement involved large scale violence against civilians across the state which peaked in the 1980-90s.[26]

24. The Tribunal rejects that the applicants have any political, religious, racial, or other profile in the Punjab that would involve them in violence with Sikhs.  It appears that as Hindus they have lived in Punjab going back at least one generation, and no information has been advanced that the applicants were the subject of riots or other violence or on account of their political or religious views.

    Drugs

25. The Tribunal accepts that the Indian economy, just as many other economies whether advanced or not, have drug problems and the Tribunal appreciates that as parents, the applicants have a fear that their child or future children might be victims of this problem.  Nonetheless, the Tribunal does not find that the family would be affected by drugs because the State intends to harm them specifically.  It is a risk that is run by many families indiscriminately and a feature of modern society in general.  The Tribunal therefore rejects that the applicants will face serious harm on account of drug use and trafficking in India for any reason under s.5J.

26. Having had regard to the first and second named applicants’ claims which at times cross over, the Tribunal finds that there is no intention by the State to cause them serious harm on account of any characteristics or their religion, race, nationality, membership of a particular social group or political or imputed political opinion.

    Lack of family support in India

1. The Tribunal finds that this is not a matter that falls within s.5J and which constitutes serious harm of itself.  Nonetheless, the Tribunal acknowledges that with a child to support, were both parents to work, they would find some challenges.  The applicants claim that the second named applicant is estranged from his family in India and the applicant has only one sister, and that the remainder of her family are living in Europe.  The first named visa applicant would therefore have some support by way of her sister, and no information has been provided as to why her parents could not return to India now and again to assist her with child rearing if required.

2. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   The second named applicant’s claims specifically – unemployment, drugs and safety

3. The Tribunal has addressed the second named applicant’s claims in the context of the claims being put forward by the first named visa applicant in relation to drugs, generalised and political violence, corruption and other matters.  Nonetheless, the Tribunal considers it necessary also to consider whether the second named applicant’s profile gives rise to any other claims due to any specific characteristic held by him.

4. In terms of unemployment, the Tribunal notes that the second named applicant has worked in the [work] sector and has been resourceful enough to turn his hand to working in a [workplace] in Australia, demonstrating that he is able to adapt to a foreign environment to find work even if it is in unskilled areas.  This together with any funds that the first named visa applicant can raise through her various skills means the family would be able to pool their resources to live a modest lifestyle.

5. In any event, the Tribunal cannot see that the Indian state or authorities would actively prevent the applicants from obtaining work for reasons of s.5J.  In her declaration of 10 June 2024, the first named applicant wrote, “My husband also faced such corruption when he would apply for jobs, however, they would request money from him”.  The applicants have not provided detail about this claim in terms of how often he faced such corruption and how much money he was required to pay, for example.  The Tribunal finds these claims are generalised and the Tribunal does not accept that the applicant could not make employment requests without being asked for money on every single occasion. 

6. The Tribunal acknowledges the second named applicant’s claims regarding the prevalence of drugs in India together with a fear for his and his family’s safety.  While that fear may be justified the Tribunal has found that any threats to the family’s safety would not be because the state would withhold protection due to any characteristics of the members of the family or would deliberately target the family to disrupt their sense of safety for any reason under s5J.

7. Given the second named applicant’s claims are general and the Tribunal finds that he too does not have a well-founded fear of persecution on return to India now or in the reasonably foreseeable future, even though he may face some challenges regarding corruption and other less than perfect societal conditions.

8. For the reasons given above, the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   The third named visa applicant’s claims

9. The third named applicant has given expression to her claims via her parents.  The first named visa applicant stated that her daughter might experience culture shock and will be denied an education and other deprivations such as in the healthcare and the education sectors, such as those she and her husband had experienced.  The third named applicant is now in [School level] and would not adjust to life there. 

10. The Tribunal accepts that the third named visa applicant would need to make an adjustment to life in India and it may be somewhat difficult at first.  Nonetheless, these difficulties arose because her parents deliberately stayed in Australia for such a lengthy period without ever considering that if they were not successful in remaining here, there would be implications for any future children.  Instead, it appears that the first and second named applicants continued to remain in Australia because this was their prime objective; and not because of any well-founded fears of persecution in India.  Nonetheless, the Tribunal is required to assess the third applicant’s claims in isolation from her parents’ actions.

11. In terms of concerns about their daughter been subject of sexual assault, harassment or any other harm due to being a single female, the Tribunal has had regard to the country information as detailed in the Departmental decision as concerns child protection in India and that child specific policies and laws, outside the constitution and the Indian Penal Code, exist.  These include the National Policy for Children, 2013, Protection of Children from Sexual Offences Act, 2012 (POCSO) the Juvenile Justice (Care and Protection of Children) Act, 2015, the Protection of Children from Sexual Offences Act (2012) and The Child Labour (Prohibition and Regulation) Act (1986, amended in 2016).[27]

    [27] ‘Child Protection, UNICEF, India, Child Protection | UNICEF India.

12. Notwithstanding this legislative regime, the Tribunal accepts that as UNICEF indicates, violence against children is widespread and remains a harsh reality for millions of children from all socio-economic groups in India.  Both girls and boys in India face early marriage, domestic abuse, sexual violence, violence at home and in school, trafficking, online violence, child labour and bullying.[28]

    [28] Ibid.

13. The first named applicant also stated that her daughter could be at greater risk because she will be perceived as “different” having lived her entire life (6 years) in Australia.  When the Tribunal asked why the applicants could not relocate under the Indo-Nepalese Treaty of Peace and Friendship, which would grant them a meaningful right to enter and reside in Nepal, the first and second named applicants stated that the child was familiar with English and Punjabi but did not speak Nepalese.

14. Given the Tribunal has found that it does not accept that the family has a well-founded fear of persecution on account of any reason under s.5J, the Tribunal need not consider the matter of relocation to Nepal under the Indo-Nepalese Treaty of Peace and Friendship.  However, the child’s parents have conceded that their daughter is familiar with the Punjabi language.  In terms of culture shock, the third named applicant is only in [School level] in Australia and has not yet entered the structured education system where rudimentary academic learning has started (for example primary school and beyond).  

15. Further, the Tribunal can see no reason why the third named applicant has any profile under s.5J that would mean she would be at greater risk of sexual assault or harm than other children in India.  Unfortunately, abhorrent abuses against children appears to be indiscriminate as per the putative group, “Women in India”, the Tribunal does not accept that the third named applicant is a member of the particular social group “children in India”, because it does not accept that without something more, such a group exists.

16. Further, the third named applicant’s parents appear to be loving toward their child and there is less of a risk that they would impose early marriage on their daughter or that she would be exposed to violence within the home.

17. The Tribunal can appreciate that the parents want the best for their daughter and that after having been in Australia for 15 years now, where they have been able to access reasonably well-paying work, the thought of returning to India is difficult to grasp, especially because they want to give their child everything they were deprived of and because the child was born in Australia. 

18. Nonetheless, the Tribunal does not accept that such reasons constitute having a well-founded fear of persecution under the Act.  They are preferences and given the third named applicant is part of a family where the parents are able-bodied, and her mother has received an international education in a variety of sectors, such as business and accounting, the Tribunal does not accept that the third named visa applicant will suffer any serious harm on return to India now or in the reasonably foreseeable future as her parents can give her a life where her capacity to subsist is not threatened.

98. The first and second named applicants have not claimed that their daughter would be stateless because she would not be able to enter and reside in India on the basis of being a child of two Indian citizens even though she was born in Australia. From the evidence before it, it would seem that the third named applicant’s parents could register her to be granted Indian citizenship (by descent) at an Indian Consulate Under Section 4(1) of the Citizenship Act, 1955.[29] [30]

[29] Frequently Asked Questions (FAQs) (mha.gov.in).  Ministry of Home Affairs India.

[30] Indian Citizenship Online Portal, Indian Citizenship Online.

1. For the reasons given above, the Tribunal is not satisfied that the third named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   The representative’s submission dated 10 June 2024

100.   The representative’s oral submission at hearing largely reflected her statements in her submission dated 10 June 2024, referring to the applicants’ claims and the relevant law and referring to several decisions made by other Tribunal members in 2023.  The Tribunal, given the sensitivity of the claims in both those cases and the need to protect those applicants’ privacy, will not provide the numbers of those decisions in this decision. 

101.   The Tribunal has carefully reviewed both the decisions referred to by the representative which were remitted but notes that the circumstances outlined in these matters were vastly different to the claims made by the applicants in this case.  Furthermore, some of the claims were supported by verifiable documentation and the protagonists had been fleeing for reasons of not only being female in India, but also because of a politico-religious dimension to their claims.  Another had experienced sexual assaults by family members.  Hence, the only fact of those cited cases which is similar to the applicants before this Tribunal, is that the protagonists were female. 

102.   The Tribunal also notes that in both the cases presented to the Tribunal there were not significant issues of credibility as the members in both cases largely accepted the claims being made.  As the Tribunal has highlighted being a woman or a female child in India of themselves to not constitute membership of a particular social group.  In both the cases referred to the Tribunal by the representatives the claims were multilayered, plausible and fell clearly within the ambit of s.5J.

103.   The representative in her submission in her penultimate paragraph states:

The Applicants will be arbitrarily deprived of their life if they return to India.  The Applicant will also be subjected to torture and other cruel or inhuman treatment by Hindu Nationalist Groups, Indian Authorities, and the Indian public.

104.   The applicants have not themselves made any reference to fearing Hindu Nationalist Groups as the applicants made it clear that they were not political or politically active in any way.  Nor has the representative expanded on what is meant by Hindu Nationalist Groups and how precisely any such torture or cruel or inhuman treatment would be metered out to the applicants by such unidentified groups.  This general claim is reflective of many of the applicants’ vague and general claims without supporting credible evidence, either orally or by way of other credible information, and the Tribunal rejects that the applicants would be targeted by ‘Hindu Nationalist Groups”.  This claim has not been made out.

105.   The Tribunal does not accept that on return to India now or in the reasonably foreseeable future the applicants:

·have any adverse political profile in India due to a lack of political connections

·have any political opinions that would attract serious harm in India

·(that the first named applicant) was sexually assaulted by the authorities or a prospective employer at any time

·will be denied employment of any sort unless they subject themselves to bribes, corruption and sexual harassment

·are not able to access any effective protection measures to secure their safety

·will face significant economic hardship that threatens their capacity to subsist

·will face denial of access to basic services, where the denial threatens their capacity to subsist

·will be denied the capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist

·will be the victims of significant physical harassment or death

·will be the victims of significant ill treatment

·will suffer cruel and inhuman treatment and punishment

·will suffer cruel or inhuman treatment by Hindu Nationalist Groups

1. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

   Complementary protection

2. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

108.   The Tribunal has also considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that the applicants will suffer significant harm.  The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution.  The Tribunal having rejected the applicants’ claims, individually and in their totality, finds that it is not satisfied that there are substantial grounds for believing that there is a real risk they will suffer significant harm due to any adverse profile with any state or non-state actors in India. The Tribunal rejects that the applicants will be arbitrarily deprived of their lives; that the death penalty will be carried out on them; or that they will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment by non-state or state actors because it has rejected the applicants’ claims that they were ever of interest to the authorities or other non-state individuals or agencies in India on account of their race, religion, nationality, membership of a particular social group, or political or imputed political opinion.

109.   The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. There is no suggestion that the applicants satisfy s.36(2) on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).

111.   Postscript: The Tribunal understands that the applicants may seek Ministerial Intervention if it can be shown that their case entails compassionate and compelling circumstances as set out in the relevant guidelines.

DECISION

112.   The Tribunal affirms the decision not to grant the applicants protection visas.

Rosa Gagliardi
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

1¹ ibid.

Indian law provides for an independent judiciary even though corruption is widespread.  The judiciary is largely independent from the legislative and executive branches and judges display considerable activism in response to public-interest litigation matters.  Further, many in India perceive judicial services to be slow and ineffective for people with day-to-day disputes. 

1^{4 ‘}The Khalistan Movement: History & Resurgence in the Western Diaspora’_, The Khalistan Movement: History & Resurgence in the Western Diaspora - Hindu American Foundation.