2112808 (Refugee)

2112808 (Refugee) [2024] AATA 1034 (31 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Rayan Hazim (MARN: 1685918)
CASE NUMBER: 2112808

COUNTRY OF REFERENCE: India
MEMBER:Alison Murphy
DATE:31 January 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 31 January 2024 at 3:33pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – single mother – victim of gender-based violence – divorce and re-marriage – honour killing – threats of forced prostitution – Australian citizen child – effective protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Status of Children Act 1974 (Vic), s 5
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIMAC v SZRHU [2013] FCAFC 91
SZMWQ v MIAC (2010) 187 FCR 109
V856/00A v MIMA (2001) 114 FCR 408
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 September 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on on 3 December 2015. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person owed protection by Australia.
The applicant appeared before the Tribunal on 14 December 2023 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review.
The applicant was represented in relation to the review.
The issue in this case is whether the applicant meets the criteria set out in either of s 36(2)(a) or s 36(2)(aa). A summary of the relevant law is attached at Attachment A. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. As at the date of the Tribunal’s decision, the relevant report is DFAT Country Information Report India dated 29 September 2023.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant travelled to Australia on an apparently genuine Indian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of India and has been assessed on that basis by the Department. The Tribunal finds she is an Indian citizen and has assessed her claims against India as the country of nationality and the receiving country.
The applicant is [an age]-year-old woman from [Village 1] in Firozpur District, Punjab. She is of Punjabi ethnicity and Sikh religion.
Her parents and [brothers] remain living in [Village 1]. The Tribunal notes that the Form 80 contains different details about her family composition than those set out in the accompanying visa application, but accepts that those in the Form 80 are incorrect. In particular the Tribunal accepts that the applicant does not have any sisters and has no close relatives in Australia and that her correct family composition is as set out in her response to question 43 of the Form 866B.
The applicant completed secondary school and commenced but did not complete college, before entering an arranged marriage to her first husband in March 2008 at the age of [age].
She first arrived in Australia [in] June 2008 as a dependant on her first husband’s student visa. On 25 August 2010 she was included in his application for a further student visa which was granted on 22 November 2010.
The applicant departed Australia [in] October 2011 and arrived back in Australia [in] November 2011 before her student visa ended on 13 April 2012.
Since arriving in Australia the applicant has divorced her first husband and has subsequently been married and divorced twice more, as evidenced by the marriage and divorce certificates provided to the Department and the Tribunal.
The applicant has a child from her third marriage, who is an Australian citizen by birth. As at the time of the Tribunal’s decision, that child is now almost [age] years old.
The Tribunal accepts each of the above matters to be true.
The applicant’s claims for protection
In the visa application lodged in December 2015, the applicant stated that she feared harm in India after being forced by her family to cease her education and enter into an arranged marriage that became violent. She was physically and sexually mistreated and assaulted before being forced by her in-laws to accompany her husband to Australia on a student visa so that she could work and send money home to them. She initially refused to do so but was told that if she remained in India she would be beaten by her in-laws, sexually assaulted by strangers and sent to work in a brothel. When she arrived in Australia she escaped her husband in Sydney by running away to Melbourne and going into hiding with her cousins. She claims that if she is returned to India she will be harmed and most likely murdered by her family and in-laws who will say she has brought shame upon them. She fears being forced into prostitution or sold to a brothel and claims that she will be made an example of by her family and in-laws.
By the time the applicant was interviewed by the department in March 2021, her personal circumstances had changed significantly as her first marriage had ended in divorce and she had remarried and divorced and/ or separated twice more. She [had] separated from her third husband after experiencing family violence. The delegate accepted that the applicant has been married three times; that her first and third marriages were arranged by her family in India and that the applicant has a child from her third marriage, who is an Australian citizen by birth but found there to be no real chance the applicant would face harm on return to India from any person or group.
Before the Tribunal, the applicant claimed to fear harm from her family; the families of her first and third husbands and men and the community in general in India. She fears harm because of her profile as a Sikh woman from Punjab who has been married and divorced three times; who is a single mother and who has married someone who was not of Indian ethnicity. She gave evidence at hearing that was in all material ways consistent with her written statements.
The applicant’s first marriage
The Tribunal accepts that the applicant was married in March 2008 to a man who lived in a neighbouring suburb to the applicant’s family in [Village 1]. The Tribunal accepts that the marriage was arranged by the applicant’s parents and that she did not enter into it willingly, rather she had hoped to continue her studies overseas. In making that assessment the Tribunal has had regard to DFAT’s advice that most marriages in India are arranged; that remaining single is difficult and relatively uncommon and that a woman uninterested in marriage would likely come under significant pressure from her family to marry and husband of her parents’ choosing.[1]
[1] DFAT DFAT Country Information Report: India 29 September 2023 [3.132] [3.136]
As is the usual practice in India, the applicant moved into the home of her husband and in-laws following the wedding. She has described experiencing serious sexual and physical violence during that marriage and the Tribunal accepts that to be true. In making that assessment the Tribunal notes DFAT’s advice that traditional social practices and the low status of women in many parts of India are linked to domestic and gender-based violence; that violence against women is a significant problem in India and state protection is often inadequate.[2]
[2] DFAT DFAT Country Information Report: India 29 September 2023 [3.123] [3.131]
The applicant travelled with her first husband to Australia in 2008 as a dependent on his student visa, working and sending money back to his family in India. She left the marriage shortly after their arrival in the context of severe domestic abuse and moved from Sydney to Melbourne to stay with her cousins. The applicant has consistently stated that her family were against the divorce, telling her that they had spent a lot of money on the wedding and that she could not return home. She gave evidence that her parents had paid a dowry to her husband’s family at the time of the marriage, but she didn’t know how much.
Her cousin paid for her to attend a short course in [occupation 1] and after completing that course she worked in [occupation 1]. In 2010 her husband contacted her through her cousins, asking her to sign an application for a further student visa. She did so on her cousin’s advice, who told her that maybe her marriage could be saved.
The applicant returned to India for approximately six weeks towards the end of 2011 for her brother’s wedding, staying at her parents’ house and participating in the wedding arrangements. She has consistently stated that her family were not aware of the breakdown of her marriage while she was in India and she believed her husband had not told his family either. She explained her husband’s absence by telling her family he could not get time off work. She was not aware at the time that her first husband had already commenced divorce proceedings in the Australian courts. She gave evidence that she was fearful of her family’s reaction if they found out about the end of her marriage.
In 2012 she found out through her cousins that he had initiated a divorce her and a Family Court order indicates the divorce took effect [in] June 2012. The applicant has consistently stated that she has had no contact with her first husband or his family since signing the second student visa application in 2010 and the Tribunal accepts that to be true. The Tribunal accepts that when the applicant’s own family eventually found out about the divorce in or around 2012, they ceased all contact with her for a number of years.
The applicant’s second marriage
The applicant married a [Country 1] national in April 2016 and orders of the Federal Circuit Court of Australia record that marriage was terminated by divorce [in] December 2018. The applicant does not suggest that her second husband or any person associated with him will seek to harm her if she returns to India.
The applicant’s third marriage
The Tribunal accepts that the applicant legally married her third husband in Australia in July 2020 as recorded in the divorce order made by the Federal Circuit and Family Court of Australia, although they appear to have had a religious marriage ceremony in May 2020 at [a temple]. The applicant’s former husband was an Indian national residing in Australia who became an Australian citizen in 2017. Consistently with her written statements, the applicant gave evidence that the marriage was arranged by her parents and she agreed to it because they told her if she married again she could be readmitted to the family.
The applicant met her third husband only once before the marriage. She has never met his family in India, although she used to speak to them on the phone during the marriage. That relationship quickly became violent as a result of his alcohol use. His parents sought to reassure the applicant that he would stop drinking and things would be alright, but that did not happen. The applicant’s former husband was angry when she became pregnant soon after the marriage and tried to force her to abort the chid. The relationship ended only a month after the legal marriage when the applicant refused intercourse and her husband called the police to say that she was trying to set the house on fire. When the police attended the house she was asleep and she told him her husband was drunk and making things up. After the police left her husband took the house keys away from her and said she was not welcome anymore.
The next day she went to the police and showed them a video she had taken on her phone in June 2020 of her husband beating her and threatening her with a hammer. The police charged the applicant’s husband with assault and took out an intervention order protecting the applicant from her former husband in August 2020. A Family Violence Interim Intervention Order dated [in] August 2020 was provided to the department. The Tribunal has been provided with a copy of a Family Violence Final Intervention Order made by the Magistrate’s Court of Victoria [in] January 2021 which records her former husband was at court when the order was made and that he consented to the order without admissions. That order expired [in] January 2022.
The applicant’s husband was subsequently charged with threats to harm the applicant. In a statement made to Victoria Police dated [in] September 2020, the applicant recounts the sexual and physical violence perpetrated on her by her husband during their brief marriage. A hospital discharge summary records she was admitted in September 2020 and discharged after social worker review in the context of family violence and that she was pregnant at the time.
At the time of the delegate’s decision the applicant was not legally divorced from her third husband, but the divorce was finalised by Federal Circuit and Family Court of Australia [in] March 2022. The Tribunal notes the divorce order records that there was no child of the marriage, nor does the child’s birth certificate issued by Victoria’s Births, Deaths and Marriages record any details for the child’s father. The Tribunal accepts this was an attempt by the applicant to create distance for herself and her daughter from her former husband for safety reasons. It would appear however that the Department has accepted the paternity of the applicant’s daughter, given that she has been recognised as an Australian citizen. The Tribunal notes in that regard that laws operating in the State of Victoria provide that a child born to a woman during her marriage is presumed to be the child of its mother and her husband, in the absence of any evidence to the contrary.[3]
[3] Section 5 of the Status of Children Act 1974 (Vic)
The applicant and her daughter were without any source of income and faced homelessness after the separation. After a period of couch surfing with friends, they received crisis accommodation and case management support from a number of family violence agencies. At the time of the Tribunal hearing, the applicant was living in private shared accommodation and working in the health sector after her support worker successfully advocated for her daughter to receive a childcare subsidy under the hardship and special circumstances criterion (see letter from IPC Health dated [in] March 2021 and [Agency 1] dated 6 December 2023).
At the time of the Tribunal hearing, the applicant and her representative were unsure whether the intervention order made against the applicant’s former husband in August 2020 was still in place and the outcome of any of the criminal proceedings against her former husband. After the hearing, the applicant provided the Tribunal with correspondence from Victoria Police dated [in] December 2023 advising that the court matter relating to the criminal proceedings ended after a decision was made to withdraw the charges. No further explanation was provided.
The Tribunal accepts each of the above matters to be true.
Future risk of harm on return to India
In assessing the applicant’s claims to fear harm in India, the Tribunal needs to consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward-looking test.
The applicant fears that if returned to her home area of [Village 1] in Firozpur District, Punjab, she will face serious harm on the basis of her membership of the particular social groups ‘Sikh woman who has been divorced three times’; ‘single females in India’, and ‘single mothers in India with illegitimate children, unable to economically subsist if forced to relocate’.
The criterion in s 5J(1)(a) contains a subjective requirement that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal accepts that if returned to India, the applicant will return with her infant daughter to her home area of [Village 1] in Firozpur District, Punjab, India, being the only place the applicant ever lived prior to her marriage.
India is a patriarchal society in which traditional practices and the low status of women in Indian society make them vulnerable to domestic and gender-based violence as well as restricting their participation in the workforce and community. DFAT reports that the illegal yet common tradition of a bride’s family needing to pay a dowry can include female infanticide, sex-selective abortions and dowry-related harassment and deaths. Honour killings occur when families feel the honour of the family is jeopardised, including when women seek to divorce or separate from an abusive husband. DFAT reports that such honour crimes can occur regardless of age, religion, social status, wealth or other factors.[4]
[4] ‘DFAT, DFAT Country Information Report: India 29 September 2023 at 3.123 – 3.124
The Tribunal does not accept there to be a real chance that the applicant’s first husband or his family will seek to harm the applicant on return to India, given that there has been no contact between them since at least 2010 and that her husband initiated their divorce in 2011. The Tribunal notes that the applicant does not claim to fear harm in India from her second husband, who appears to have been a national of [Country 1] with no connection to India.
However the Tribunal accepts there to be a real chance that the applicant’s third husband or his family will seek to harm the applicant if she returns to India, noting that his family live only about half an hour’s drive from the applicant’s family home; that they are only recently divorced and have an infant daughter. In making that assessment the Tribunal has had regard to DFAT’s advice that women in Indian society are vulnerable to domestic and gender-based violence including honour killings which occur when families feel the honour of the family is jeopardised, often when women seek to divorce or separate from an abusive husband. DFAT reports that such honour crimes can occur regardless of age, religion, social status, wealth or other factors.[5] Data collected by the Indian government records 6753 dowry deaths in 2021 (latest available).[6]
[5] ‘DFAT, DFAT Country Information Report: India 29 September 2023 at 3.123 – 3.124
[6] Home | Open Government Data (OGD) Platform India
While there has been no contact between the applicant and her former husband since their separation in 2020, family violence orders prevented any contact until early 2022 and the Tribunal considers that the outstanding criminal charges and the protection provided to the applicant by Victoria Police are likely to have played a role in dissuading the applicant’s third husband from seeking to contact her and their daughter. The Tribunal considers that if the applicant and her daughter are returned to India, there is a real chance her former husband and his family will seek to punish her for seeking police protection and bringing shame to their family.

The Tribunal also accepts that the applicant’s parents and siblings will not provide her with accommodation or support; believing she has shamed them for leaving her marriages and having an illegitimate daughter. The applicant’s evidence in this regard is consistent with DFAT’s advice that divorce can be financially and socially devastating for women, particularly those whose husbands initiate the divorce and provide no income support. DFAT notes that such women would be unable to rely on the support of their biological family which is the traditional form of social welfare in India.[7]
[7] DFAT DFAT Country Information Report India 29 September 2023 at 3.133
The history of family violence and the fact that they have a young child cause the Tribunal to accept there to be a real chance the applicant’s third husband or his family may be motivated to locate and harm her if she returns to her home area of [Village 1] in Punjab, now or in the reasonably foreseeable future. The Tribunal is satisfied that the nature of the harm her former husband has perpetrated upon the applicant in the past is an indicator of the harm he may cause to her in the future and that it rises to the level of serious harm for the purposes of s 5J(5).
Is the harm feared for a Convention reason?
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
DFAT advises that it is the patriarchal nature of Indian society, traditional practices and the low status of women in Indian society that make them vulnerable to domestic and gender-based violence including female infanticide, sex-selective abortions and dowry-related harassment and deaths.[8] Overall DFAT assesses that women experience a moderate risk of sexual harassment and assault in their day-to-day lives.[9]
[8] ‘DFAT, DFAT Country Information Report: India 29 September 2023 at 3.123 – 3.124
[9] DFAT 2023 DFAT Country Information Report India 29 September at 3.131
Similarly, the UK Home Office reports that gender-based violence against women and girls in India is widespread and those more at risk of serious harm include those who are seen to have transgressed social, cultural and religious norms, or are single and living alone. Practices such as forced or child marriages, dowry-related deaths, domestic violence, rape, acid attacks, honour killings, unsafe gender-selective abortions, sexual harassment, coerced and involuntary sterilisation and accusations of witchcraft continue despite laws prohibiting them.[10]
[10] United Kingdom Home Office, County Police and Information Note India: Women fearing gender-based violence (November 2022) at 2.4.6 and 2.4.8
The US Department of State reports that while the law criminalises rape in some circumstances, marital rape is not a crime where the woman is older than 15. Law enforcement and legal recourse for rape survivors is inadequate, and police sometimes worked to reconcile rape survivors and their attackers and at times encourage women rape survivors to marry their attackers.[11]
[11] US Department of State, 2022 Country Reports on Human Rights Practices: India
India is reported to have the highest number of acid attacks on women globally, with that crime still on the rise despite actions by the government and the courts. The increase is attributed to ‘the patriarchal ideology that is prevalent in India and to India’s inadequate legal system, which does not deliver efficient remedies to the victim’.[12]
[12] Vidhik Kumar, ‘Acid Attacks in India: A Socio-Legal Report’ (2021) 6(1) Dignity: A Journal on Sexual Exploitation and Violence 1, 1
The Australian courts have recognised the violence suffered by the applicant at the hands of her former husband as family violence. The Australian Institute of Judicial Administration identifies family violence as a pattern of violent and abusive behaviours that seeks to isolate, degrade, exploit and control victims. While family violence can affect a person irrespective of gender, it is widely acknowledged that the overwhelming majority of these behaviours are perpetrated by men against women, and that the most significant risk factor for experiencing family violence is being a woman.[13]
[13] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration, University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 at 3.1 Contents - National Domestic and Family Violence Bench Book (aija.org.au)
For these reasons the Tribunal accepts the violence perpetrated upon the applicant by her former husband is gender-based and that it is directed at her for the essential and significant reasons of her gender and her membership of the particular social group ‘women in India’. The Tribunal considers that the group of ‘women in India’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution.
Effective state protection
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
Country information indicates that state protection is not effective for women seeking protection from gender violence in India. Rather, DFAT reports that despite laws intended to prevent crimes against women, including The Protection of Women from Domestic Violence Act, 2005 (PWDVA), in practice cultural factors prevent women from reporting violence and police may not be effective in proving state protection. Police commonly refuse to register cases or investigate claims of violence, including violence resulting in grievous bodily harm or death, and violence affects women regardless of all socio-economic, caste and language distinctions. Overall DFAT assesses that women experience a moderate risk of sexual harassment and assault in their day-to-day lives.[14]
[14] DFAT 2023 DFAT Country Information Report India 29 September at 3.131
Similarly, the US Department of State reported in 2022 that there is a lack of investigation of and accountability for gender-based violence, including domestic and intimate partner violence.[15] The UK Home Office reports that despite specific statutory laws which carry harsh penalties for offences such as domestic violence, there remain persistent gaps in enforcing those laws and some women are reluctant to report attacks to the police for fear of reprisals, being stigmatised or unsupported by the justice system.[16]
[15] US Department of State, 2022 Country Reports on Human Rights Practices: India
[16] United Kingdom Home Office, County Police and Information Note India: Women fearing gender-based violence (November 2022) at 2.5.4
The United Nations Special Rapporteur on Violence against Women concluded in her most recent report that ‘the physical, sexual and psychological abuse of women in the private sphere’ by husbands, in-laws and other family members in India ‘is widely tolerated by the State and the community’.[17] Other sources note that some 60% of acid attacks on women are never reported.[18]
[17] Rashida Manjoo, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, 26th session,Agenda Item 3, UN Doc A/HRC/26/38/Add.1 (1 April 2014) 5 [14]
[18] Vidhik Kumar, ‘Acid Attacks in India: A Socio-Legal Report’ (2021) 6(1) Dignity: A Journal on Sexual Exploitation and Violence 1, 1
In light of the above information, the Tribunal finds that effective protection measures are not available to the applicant in India.
Does the harm feared by the applicant extend to all areas of India?
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
In considering whether the applicant faces a real chance of persecution across all areas of India, the Tribunal has had regard to DFAT’s 2020 advice that safe relocation for women and girls fleeing domestic or family violence within Indian states or elsewhere in India is practically impossible due to limited availability of shelters/centres and the situation a woman will face upon leaving such centres, where social support networks are unlikely. DFAT states that according to local sources, some women fleeing domestic violence stay in shelters for more than 10 years and there is little ability of state and NGO resources to reintegrate these women back into the community. Sources in West Bengal told DFAT that, due to a shortage of women’s shelters, women from other states seeking accommodation in shelters were repatriated to their home states.[19]
[19] DFAT, DFAT Country Information Report: India 10 December 2020 at 5.35
Similarly the UK Home Office reports that single women, women living alone and victims of family violence find it difficult to relocate in India without the support and supervision of a male relative to access accommodation and services. Women also face discrimination and stigma which creates barriers in accessing education, health and property ownership. It assesses that women who are seen to have transgressed social, cultural and religious norms, or are single and living alone, may be at greater risk of persecution or serious harm.[20]
[20] United Kingdom Home Office, County Police and Information Note India: Women fearing gender-based violence (November 2022) at 2.4.3; 2.6.5
In 2020 DFAT assessed that women have limited access to internal relocation options but that it would generally be possible for a single woman without children, who was able to access accommodation and support networks, or who was educated, skilled or wealthy enough to support herself.[21] The applicant meets none of these criteria, rather she is the single mother of a young daughter who has relied on friends and family violence support organisations to house, clothe and feed herself in Australia. The additional stigma she would face as a divorced mother without male protection will impact on her ability to find housing and employment, both basic services required for her subsistence. The UK Home Office reports that sexism, especially in informal workplaces, leaves women with few options to work and sustain their families post-divorce.[22]
[21] DFAT, DFAT Country Information Report: India 10 December 2020 at 5.36
[22] United Kingdom Home Office, County Police and Information Note India: Women fearing gender-based violence (November 2022) p. 21
In this case the applicant has no family or support networks outside of her home area of [Village 1] in Punjab. The Tribunal has accepted that her family will not provide her with accommodation or support in Punjab or elsewhere. The applicant has for some years been reliant on family violence services in Australia to assist her with housing, employment and the necessities of daily living. In the context of the country information cited above, the Tribunal finds that there is no area in India where the applicant would not be exposed to a likely inability to find food, shelter and work in the manner described by the court in FCS17 and therefore the real chance of persecution relates to all areas of India.
Right to enter and reside in a third country
Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them.
Section 36(3) of the Act has the effect that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.[23]
[23] Sections 36(4)–(5A)
This is relevant because the Treaty of Peace and Friendship in 1950 provides for India and Nepal to ‘grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature’.
The Full Federal Court has held that the term ‘right’ should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question[24]. The right must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise.[25]
[24] MIMAC v SZRHU [2013] FCAFC 91
[25] V856/00A v MIMA (2001) 114 FCR 408
It is submitted that the applicant if the applicant were to relocate to Nepal with her young daughter, she would face considerable societal discrimination as a divorced woman. It is further submitted that neither the applicant nor her daughter hold current Indian passports, photo identity documents or emergency certificates issued by the Indian Embassy in Nepal as required to establish their identities as Indian citizens.
The terms of s 36(3) provide that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a third country. The Department’s Refugee Guidelines provide that such steps may relate to a range of administrative or practical measures a person may take in a given case, including making contact with consular or diplomatic representatives or immigration authorities; the making of inquiries or applications and the provision of evidence relating to the identity or status of the applicant. The applicant has not provided any explanation for her apparent decision not to renew her Indian passport. In these circumstances the Tribunal is not satisfied the applicant has taken ‘all possible steps’ to avail herself of her right to enter and reside in Nepal.[26]
[26] SZMWQ v MIAC (2010) 187 FCR
However the Tribunal accepts that the applicant’s daughter will necessarily accompany her to Nepal and that she is an Australian citizen. India’s Constitution does not allow the holding of Indian citizenship with that of a foreign country simultaneously but introduced Overseas Citizenship of India (OCI) in 2005 for persons of Indian origin who have acquired citizenship of a foreign country under that country’s citizenship laws. The process of registration as an OCI requires production of the foreign passport and a government issued Indian identity document and it is unclear on the available information whether the applicant’s daughter is entitled to be granted OCI, or whether that status would entitle her to enter and reside in Nepal even if granted.[27]
[27] DUAL NATIONALITY (embassy.gov.au); dual citizenship: Can Indians have dual citizenship? Here's the fine print - The Economic Times (indiatimes.com)
In these circumstances the Tribunal is not satisfied the applicant would be granted entry to Nepal if she presented at the border with her daughter, even if the applicant herself held a valid Indian passport. Therefore she is not excluded from Australia’s protection obligations by the operation of s 36(3) of the Act and she comes within the definition of a ‘refugee’ set out in s 5H of the Act and satisfies the criterion set out in s 36(2)(a).
CONCLUSIONS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Alison Murphy
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.
…

[2024] AATA 1034

31 January 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies