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 5CASES
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 408Any 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…
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CaseChat Overview and Summary
The Administrative Appeals Tribunal considered the protection visa application of an Indian citizen who feared harm upon return to India. The applicant, a single mother with an Australian citizen child, claimed she faced threats of honour killing, forced prostitution, and violence from her family and former in-laws due to perceived shame she had brought upon them. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), specifically whether she was a refugee with a well-founded fear of persecution.
The Tribunal's reasoning focused on the applicant's claims of gender-based violence and the specific risks she faced in India. It considered the definition of a "refugee" under section 5H of the Act, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal accepted the applicant's account of her experiences, including her history of arranged and violent marriages, and her fear of severe harm from her family and in-laws. The Tribunal also considered the concept of "membership of a particular social group" under section 5L, which includes characteristics that are innate, immutable, or fundamental to identity.
The Tribunal concluded that the applicant had established a well-founded fear of persecution for reasons of membership of a particular social group, specifically as a single mother who had defied her family and in-laws, thereby bringing shame upon them. It found that the harm feared constituted serious harm, including threats to her life and liberty, and that such persecution would involve systematic and discriminatory conduct. The Tribunal was not satisfied that effective protection measures were available to the applicant in India, nor that internal relocation would be a reasonable option given the nature of the threats from her family and in-laws. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act*.
The Tribunal's reasoning focused on the applicant's claims of gender-based violence and the specific risks she faced in India. It considered the definition of a "refugee" under section 5H of the Act, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal accepted the applicant's account of her experiences, including her history of arranged and violent marriages, and her fear of severe harm from her family and in-laws. The Tribunal also considered the concept of "membership of a particular social group" under section 5L, which includes characteristics that are innate, immutable, or fundamental to identity.
The Tribunal concluded that the applicant had established a well-founded fear of persecution for reasons of membership of a particular social group, specifically as a single mother who had defied her family and in-laws, thereby bringing shame upon them. It found that the harm feared constituted serious harm, including threats to her life and liberty, and that such persecution would involve systematic and discriminatory conduct. The Tribunal was not satisfied that effective protection measures were available to the applicant in India, nor that internal relocation would be a reasonable option given the nature of the threats from her family and in-laws. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act*.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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 MurphyMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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