2117239 (Refugee)

[2024] AATA 4289

2117239 (Refugee) [2024] AATA 4289 (20 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2117239

COUNTRY OF REFERENCE:                   India

MEMBER:Nicole Burns

DATE:20 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

·that the first named applicant and the second named applicant satisfy s 36(2)(a) of the Migration Act.

Statement made on 20 March 2024 at 5:19pm

CATCHWORDS

REFUGEE – protection visa – India – membership of particular social group – fear of harm from ex-husband of first applicant mother/father of second applicant son – control, threats, abuse and violence during marriage, extortion of parents and continued demands and threats via family members – drug use, criminal activities, including claimed murder of brother, and links to corrupt police – applicant’s mental health and cognitive functioning – detailed and consistent evidence, with supporting statements and medical reports – country information – divorced women more vulnerable to gender-based violence – limited police and judicial resources – passport expired – entering Nepal possible without passport but would not remove possibility of being found by ex-husband – application for another country’s visa in early stages and no existing right to enter and reside – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(c), (3)(c)(vi), (4)(a), (c), 5K, 5L, 5LA(2), 36(2)(a), (3), (4)(a), 65, 438

Migration Regulations 1994 (Cth), Schedule 2

CASES

AGA16 v MIBP [2018] FCA 628

Applicant S v MIMA (2004) 217 CLR 387

Chen Shi Hai v MIMA (2000) 201 CLR 293

MIEA v Respondent A (1995) 57 FCR 309

MIMAC v SZRHU [2013] FCAFC 91

Morato v MILGEA (1992) 39 FCR 401

SZTOX v MIBP [2015] FCAFC 77

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 4 November 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are mother, the first named applicant (the applicant) (aged [Age]) and son, the second named applicant (aged [Age]) who are citizens of India.  They came to Australia [in] July 2009 as dependants of the applicant’s then husband’s ([Mr A]) student (Subclass 572) visa.  They applied for the protection visas on 17 March 2017.

3. The applicants appeared before the Tribunal on 14 December 2023 and 11 January 2024 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. In summary the applicant claims to fear serious harm on return to India at the hands of her first husband, [Mr B], who was violent towards her and her son in the past, and continued his threats after their divorce, including via her family members who remained in India. 

5. The issue in this case is whether the applicants are owed protection either 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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.

12. The most recent country information report on India by DFAT was published on 29 September 2023.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The applicant’s mental health and cognitive status

13. As a preliminary matter the Tribunal notes the applicant provided several reports to the Department[1] and Tribunal[2] from her treating psychologist, [Dr C], as well as other medical reports (including from her GP, [Dr D]). In his reports [Dr C] sets out the applicant’s psychological history, diagnosis and symptoms, and how her mental health issues impact her functioning. 

14. As noted by the delegate in their decision record, [Dr C]’s assessment about the severity of the applicant’s cognitive functioning issues appears to have changed over time in some respects.  Specifically his initial assessment was of major depressive illness, anxiety and major loss of cognitive function, possibly compounded by an acquired brain injury (ABI).[3]  In a later report [Dr C] states such disabilities will not improve with time.[4]  However in subsequent reports [Dr C]’s assessment appears less serious (and less fixed).  For example in a 2017 report [Dr C] states that the applicant will potentially be able to live a normal and symptom free life in the future if returned to a stable and supportive environment with appropriate psychological assistance.[5]  (His latter reports do not mention an ABI.)  

15. Before the Tribunal the applicant provided a letter titled ‘further comment’ from [Dr C] dated 5 November 2023.  In it he explains that at the earliest stage of his association with the applicant it was clear there were major difficulties in a range of cognitive domains.  However [Dr C] clarifies that the applicant’s ‘initial impaired functionality was, with hindsight, better explained as concomitant with depressive anxiety, rather than indicative of neurological impairment’. 

16. [Dr C] provides as an annexe to this letter an earlier letter titled ‘Additional explanatory comment’ to a 7 November 2019 report, dated 11 May 2021 (which the applicant had provided to the Department).  In it [Dr C] notes at the time he completed the 2019 report the applicant was significantly negatively impaired emotionally (due to fear of outcomes and continued threats to her and her family) and therefore was shown to have dramatic impairment on a range of cognitive tasks.  [Dr C] goes on to note the applicant’s steady improvement following continued clinical support.  

17. At hearing the applicant said the most recent report from [Dr C] is accurate.  She was unable to explain why his assessment of her cognitive impairment (in particular) had changed in some ways but emphasised at hearing and in her written statement to the Tribunal, that it is difficult for her to explain how much trauma, pain and physical abuse she has experienced after her marriage to [Mr B] in [Year].

18. The applicant made no mention of an ABI at hearing.  She confirmed she works as [an occupation], at [Workplace] three to four days a week.  It was clear to the Tribunal that she was competent to give evidence and there was no apparent concerns about her cognitive functioning.   

19. The changing evidence of [Dr C] raises some doubts about the applicant’s alleged mental health and cognitive functioning at different points in time.  However, the Tribunal notes his acknowledgement in his most recent correspondence that with hindsight he considers the applicant’s initial presentation of significant cognitive issues was more to do with emotional and psychological stressors and trauma related to her experiences of family violence, not an ABI or neurological disorder. The Tribunal accepts his explanation provided, noting some diagnosis (and related assessments) are not always fixed and/or can be mischaracterised, which appears to be what happened in the applicant’s case. 

20. The Tribunal accepts the applicant has been regularly seeing a psychologist in Australia from 2015 to date, to help with symptoms of depression and anxiety.  At hearing the applicant told the Tribunal she continues to see [Dr C] regularly and takes anti-depressants.  The Tribunal accepts her evidence in this regard.

    Background, claims and evidence

21. According to information contained on the Departmental file and before the Tribunal (including at hearing) the applicant is a [Age]-year-old woman originally from [Location] in Punjab in India.  She has been married three times as follows:

    ·To her first husband [Mr B] from [Year] to [Year] in India;

    ·To her second husband, [Mr A] from [Date] to [Date]. They married in India and lived together in India and Australia;

    ·To her third husband [Mr E] from [Date] to [Date] in Australia. 

22. The applicant claims her first and third husbands were violent, controlling and abusive. 

23. The second named applicant, now [Age], is the son of the applicant’s first husband, [Mr B].  He was [Age] when he left India and came to Australia in 2009.  The applicant has two sisters who remain in India: a sister in [Country 1] and a brother who migrated to Australia several years ago.  Her parents moved to [Country 1] in 2010.

24. Presently the applicants live together with the applicant’s brother and his family in Melbourne.  The applicant works as [an occupation 1] at [Workplace], as noted.  Her son works in [work sector] and hopes to study at university soon.

25. Initially the applicant set out her background and protection claims in a statutory declaration dated 9 November 2016 provided to the Department.  In it she detailed the inception and breakdown of her marriage to her first husband in the context of severe family violence perpetrated by him, who was a drug addict and dealer, among other illicit enterprises. The applicant claims to have been physically and mentally abused by him and that he regularly used weapons to attack her, including knives.  His threats and abuse continued after she divorced him and married her second husband.

26. The applicant claims her first husband was also threatening and intimidating to others including her parents (whom he regularly extorted money from), her sisters, and his own brother [Mr F]), who he allegedly murdered in [Year] following a fight about his illicit enterprises.  This led to the applicant’s parents migrating permanently to [Country 1] in 2010, although they frequently visit India from there.  [Mr B] also threatened and was violent towards her second husband, and threatened and intimidated her second husband’s parents, who live in Amritsar.

27. The applicant stated she reported her first husband to the police in India and submitted complaints several times but they never took any action because her first husband bribed them.  She adds that her first husband has links to many people including corrupt police officers due to his drug dealings and other illegal activities.

28. In an additional statement provided to the Department dated 5 May 2021 the applicant advised that [Mr B] has continued to threaten her sisters in India, and her parents when they visit India from [Country 1].

29. The applicant’s claims were supported by written statements provided to the Department from her parents,[6] her brother [Mr G][7] (now resident in Australia) and two of her three sisters who reside in India: [Ms H][8] and [Ms I].[9]

30. Several other documents were also provided including a translated copy of the applicant’s divorce agreement; a translated copy of a First Information Report (FIR) lodged in India by a doctor against [Mr B] (purportedly relating to allegations he stole medicines from a hospital); copies of hospital reports (pertaining to the applicant’s visits to hospital after being assaulted by [Mr B]); a copy of [Mr B]’s brother’s death certificate; and an affidavit from a fellow villager who attended [Mr F]’s funeral in 2004.

31. Also provided was a selection of country information about domestic and family violence cases, including dowry-related abuse in India. 

32. In a written submission[10] provided by the applicant’s then representative to the Department, the representative contends that the applicant faces a well-founded fear of persecution on return to India from her ex-husband whom she shamed by divorcing him.  The representative  references country information from a variety of sources to support her contention in this regard, including about the prevalence of honour killings and domestic violence in Punjab.

33. The delegate accepted the applicant experienced domestic violence and dowry-related abuse at the hands of her first husband in India but did not accept he was a criminal or had criminal or corrupt police connections; or that he murdered his brother; or that he continued to threaten and abuse the applicant (and her second husband) after their divorce.  The delegate found the applicants were not owed protection and refused their protection visa applications on 4 November 2021.

34. On review the applicant provided to the Tribunal a written statement dated 15 November 2023 in which she reiterates her claims and fears, addresses specific concerns raised by the delegate in their decision record, and provides an update about her and her son’s circumstances.  Also provided was a statement from her brother dated 15 November 2023, and several supporting documents including from her treating psychologist (as noted), and Australian police and legal documents (including copies of intervention orders (IVOs)) relating to her third husband.  

35. The applicant also submitted a selection of country information about honour killings and domestic violence in India (among other things). 

36. Over the course of two Tribunal hearings the applicant detailed her relationship history including experiences of violence and abuse at the hands of her ex-husband [Mr B], ongoing threats and extant fears if she has to return to India now or in the foreseeable future.  She described his controlling and abusive behaviour, towards her and her parents who he would intimidate in order to extort money from them to pay for his drug habit, among other things.  Her oral evidence was detailed, spontaneous, coherent and generally consistent with her written claims before the Tribunal and Department. It was also consistent with the written statements provided by her parents, brother and sisters to the Department, and in her brother’s more recent statement to the Tribunal. 

37. As well, the second named applicant’s oral evidence was broadly corroborative of his mother’s claims, insofar as he was aware of them noting his young age when he left India and lack of contact with his father ([Mr B]) since.  Also given his mother and her family’s reluctance to fully disclose the extent of his father’s malice and threatening behaviour out of a desire to protect him. 

38. The applicant’s claims in respect of her experiences with her first husband, his propensity for violence and involvement in criminal enterprises more generally were supported by some documentary evidence, as noted.  This included an FIR made in [Year] by a doctor alleging [Mr B] was involved in stealing medicines; a copy of a death certificate of [Mr B]’s brother in [Year] (and accompanying affidavit from [Mr J], who purportedly attended the funeral); and medical documents pertaining to the applicant’s occasional visits to hospital after being assaulted by [Mr B] in India.  At hearing the applicant explained a contact in her village obtained these documents for her, after the delegate requested she provide evidence to support her claims.

39. The applicant’s claims about being mistreated by her third husband ([Mr E]) in Australia were supported by evidence provided to the Department in the form of copies of relevant IVOs; [Mr E]’s charge sheet and summons for unlawful assault against the applicant; a copy of his AFP clearance; and a letter from Victoria Police to the applicant advising her that [Mr E] was found guilty and sentenced to a 12 months’ community corrections order.

40. Accordingly the Tribunal accepts the applicant’s core claims (primarily related to her first husband), summarised as follows:

    a.The applicant married her first husband, [Mr B] on [Date] in an arranged marriage, introduced by her aunt.  She then moved in with him and his mother and younger brother in [City 1], Punjab. 

    b.[Mr B] owned a [business] in the district and sold illicit drugs in the [workplace].  He was also an injecting drug user.  The authorities closed down the [business] in around [Year].  The applicant and [Mr B] moved to [Village] in another district where he opened another [business]. He bribed the police so they did not charge him (for selling the [drugs]).

    c.The applicant’s family gave [Mr B] a dowry on marriage (some gold and  household objects) and thereafter he continued to demand money from the applicant’s parents.  They would acquiesce to his demands, afraid he may harm them or the applicant if they did not.  This included her father paying police to get him out of jail after a raid on his [business], not long after they had married.      

    d.The applicant was controlling and violent towards her from shortly after they married and his abuse took many forms including physical violence, and threats with weapons.  He threatened to kill her and their son if she left him.

    e.Whilst still married to [Mr B] the applicant enrolled in [subject] studies in Amritsar, in an attempt to obtain qualifications followed by a job and eventually leave him.  She stayed in a hostel attached to the [study place] and her son stayed with her parents.  She tried to limit her visits to her husband.

    f.On one visit to her husband’s house during this time (in [Year]) [Mr B] fought with his younger brother ([Mr F]) and killed him. (She provided a copy of his death certificate to the Department).  [Mr B] staged his brother’s death to look like a suicide (by hanging).  The applicant was in another room at the time but when she saw [Mr F]’s body hanging [Mr B] threatened the same would happen to her if she told anyone.  She returned to her hostel to complete her studies and never returned to stay at [Mr B]’s house.

    g.The applicant’s parents supported her financially throughout her marriage to [Mr B].

    h.The applicant divorced [Mr B] in [Year].  He agreed to the divorce and her having full custody of their son as long as she did not attempt to obtain any of his property.  Nonetheless he continued to visit her parents’ house and demand money (which they continued to give to him).  He also continued to verbally and physically abuse the applicant, including at her parents’ house (her father was living in [Country 2] and her brother was young at the time).  Her mother would give him money for him to leave the house.

    i.The applicant married her second husband in India on [Date].  They lived together in Amritsar until mid-2009, along with his parents at their home.  (Her son continued to live with her parents, staying with the applicant during school holidays). 

    j.After [Mr B] found out the applicant had remarried he visited the applicant (with two friends) at her in-laws’ home and demanded she give him money (he was intoxicated and drug affected).  When she refused he beat her.  He did this several times.  Two or three times she went to a clinic in Amritsar.  On one occasion after a severe beating by [Mr B] the applicant was taken to [Town 1] hospital where she stayed for two to three days.  (She has provided translated medical reports pertaining to two hospital admissions: one by a hospital in [Town 2], Punjab on 29 May 2006 indicating she spent time from 25 May to 30 May 2006 in hospital with injuries including multiple abrasions on her face, and the other from [Town] mission hospital dated May 2009 where she presented at the Emergency Department for injuries sustained during an alleged assault.)

    k.During this period the applicant and her second husband called the police once or twice to lodge a complaint against [Mr B].  However the police did nothing: the applicant suspects [Mr B] bribed them.

    l.The applicant and her second husband tried to move away from their house in Amritsar but somehow [Mr B] found out and physically stopped them on one occasion, when they were at the bus station.

    m.Due to the ongoing threats and intimidation by [Mr B], the applicant’s brother in Australia suggested she try and leave India.  Her second husband applied for a student visa and she came to Australia as his dependant along with her son [in] July 2009. 

    n.After the applicants left India [Mr B] visited the applicant’s second husband’s parents’ house in Amritsar regularly, demanding that they return to India.  Worried about his parents (his father in particular, who had heart issues, and subsequently  died), the applicant’s second husband returned to India in March 2010.  The applicant has not heard from him since, except in relation to their divorce, which was finalised on [Date]. 

    o.[Mr B] continued to contact the applicant’s two sisters who remained in India and her parents (prior to them moving to [Country 1] around 2010) asking about the applicants, including when they plan to return.

    p.In Australia the applicant met [Mr E], who is originally from [Country 3] – through her brother − and they married on [Date]. However they separated in [Year] and divorced on [Date] as he was violent and abusive.  He was a respondent in an IVO protecting the applicant, among other things.

    q.The applicant’s sisters who remain in India continue to be contacted by [Mr B] – either through the telephone or him visiting their house – asking the applicants’ whereabouts, when they plan to visit India, and threatening to keep them on return.  He also visits her parents whenever they visit from [Country 1] and continues to ask them for money and frequently asks about the applicant and her son: the last time before COVID-19, in around November 2019.  He was verbally abusive to them at that time. 

1. The Tribunal notes the delegate expressed concern in their decision record about the veracity of the FIR dated [Year] in large part because the applicant did not explain how she obtained it given she had separated from [Mr B] in [Year].  The applicant told the Tribunal at hearing in response to the delegate asking for evidence (relating to her first husband) she contacted someone from the [village] who helped her obtain the FIR, lodged after she had separated from [Mr B] (in [Year]).  That person obtained it from the police station, in person, which she was unable to do.  She thinks the FIR relates to a complaint by an individual – [Dr K] (whom she was unfamiliar with) – against [Mr B] who sold drugs, resulting in a police raid.  The applicant said she was not sure if anything happened following the FIR lodged in [Year] but noted [Mr B] went to jail for two days shortly after they were married (in [Year]) related to similar charges.  Her father paid money to get him out after two days.  She said she did not mention this before because she could not provide evidence.

2. The Tribunal notes FIRs are the first reports made by police in India before they initiate a criminal investigation.[11] 

3. Whilst the applicant’s evidence about why this FIR was lodged and by whom (for example) was somewhat vague, the Tribunal considers this is possibly attributable to the applicant’s lack of knowledge of the details of the matter – which occurred after she had separated from her first husband – than an attempt to fabricate claims related to criminal allegations against [Mr B].  Particularly as overall the Tribunal found her a credible witness and accepts her claims that her first husband was involved in illicit enterprises including selling [drugs], which at times attracted adverse police attention.     

4. Another concern the delegate had related to the applicant’s claims that [Mr B] continued to threaten and abuse her (and others, including her second husband and his family) after their divorce.  The delegate notes that the divorce agreement states it was by mutual consent, and the terms of settlement included a return of the dowry and alimony paid. 

5. In response to this issue in her statement provided to the Tribunal the applicant said whilst there are many laws related to domestic violence and women’s safety in India, women and children are still murdered because they never get any legal help in time.  She explains that she always wanted to apply for a divorce as quickly as possible even without [Mr B]’s consent but was advised by court lawyers if she did so (without his consent) it would take years if he continued to make any allegations on every court hearing.  That is why she told him if he gives her a divorce she will not take any share in any property and if he allows her to take their son she will not be able to get any share of his property in the future: which was the only reason he agreed to sign the divorce paper.

6. At hearing the applicant said her first husband did not return her dowry and there was never any alimony.  He only agreed to the divorce and her having full custody of their son after she promised not to attempt to obtain anything from him, including property (or that her son would when older), as noted.  She agreed to these terms because she was desperate to leave the marriage to save her and her son’s lives.  The Tribunal considers this a plausible explanation. 

7. When asked why [Mr B] continued to abuse her after he had agreed to the divorce and full custody of their child, the applicant said she was unsure, but noted he was taking drugs. She added that he considers her and her son still belong to him, despite the divorce,  evidenced by his ongoing threats, and queries as to when they will return via her sisters in India.  Given the applicant’s evidence about [Mr B] extorting money from her parents during and after their marriage, which the Tribunal accepts, it does not consider it far-fetched that he continued to threaten and intimidate the applicant and others even after their divorce, particularly given financial and other incentives to do so. 

8. The Tribunal notes the delegate also expressed concerns about the applicant’s actions (or lack of actions) undermining to some extent her specific claims related to [Mr B].  For example because she failed to report [Mr B] to the police after he allegedly murdered his brother (in [Year]).  In response the applicant has explained she did not report [Mr B] to the police after he had killed his brother out of fear: he threatened to do the same to her if she did.  This is plausible given his history of violence towards her and others, including his brother, and general volatility. 

9. Having had regard to the applicant’s oral evidence about these matters and noting that there is no singular experience or specific behaviour required of people experiencing (and managing) prolonged domestic violence, the Tribunal accepts the applicant’s explanations about her behaviour and decisions during the period of her first marriage and after.  The Tribunal is of the view the applicant (and her family members) have tried to manage and mitigate risks [Mr B] has posed ever since she married him, which continue to some degree.  Sometimes this has been through giving in to his demands, including for money, and keeping silent about certain matters – such as his brother’s death − for fear of retribution. 

10. At hearing the applicant said the last contact she had with [Mr B] was when he assaulted her and she was admitted to hospital before she came to Australia.  However as noted he has continued to contact her sisters in India, and her parents when they visit.  The Tribunal accepts her evidence in this respect.   

    Well-founded fear of persecution in the future

11. Given these findings about the applicant’s past experiences and ongoing threats from her ex-husband [Mr B], the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution on return to India for a refugee reason in the foreseeable future from [Mr B].

12. The applicant claims to fear retribution and/or punishment from [Mr B] despite their divorce and the passage of time because he continues to view her (and their son) as his family/property.  He has continued to harass her sisters who remain in India and her parents when they visit, demanding to know the applicants’ whereabouts and when they will return, the last time in 2023.  At hearing the applicant said [Mr B] told her sisters that when they come back he is going to keep them with him.  According to him the divorce is only a piece of paper: noting he continued to hit her (and abuse drugs) even after the divorce, which he only agreed to so she would have nothing to do with his property. 

13. The applicant added that she has watched YouTube videos and knows how women are treated in India (in similar situations).

14. For the reasons that follow, the Tribunal finds the applicant faces a real chance of serious harm from [Mr B] based on her membership of a particular social group of women in India on return there in the foreseeable future.  It considers the fact that she would be returning to India as a single and divorced woman with very few family members, except her two sisters who remain vulnerable to [Mr B]’s threats and aggression, increases her risk significantly. 

15. In reaching this conclusion, the Tribunal has taken into account the oral and written evidence of the applicant, the oral evidence of her son, and the written evidence of her brother, sisters and parents, as well as other relevant evidence as noted above including medical evidence, and what it accepts of the applicant’s claims and profile.

16. It has also had regard to the following country information about risks single/divorced women in India face including from their ex-partners. Also in relation to ongoing dowry-related abuse, and the efficacy (or otherwise) of state protection from such risks.

17. DFAT reports that violence against women is a significant problem in India and state protection is often inadequate.  Sources told DFAT police commonly refuse to register cases or investigate claims of violence, including violence that results in grievous bodily harm or death.  DFAT assesses that violence against women is common and depends on several factors including the family of the woman, but that it affects women of all socio-economic, caste and language distinctions.  DFAT assesses that women experience a moderate risk of sexual harassment and assault in their day to day lives.[12]

18. DFAT reports that women in India experience sexual harassment and violence in the street, and such ‘teasing’ can involve serious sexual assault or homicide. They state such violence may stem from attitudes that women are ‘asking for it’ because of their clothing or because they are in public unaccompanied by a male family member, for example.[13] 

19. Feeling unsafe on public transport, and at workplaces (for example) can lead to barriers for women enjoying public spaces and employment.[14]

20. More broadly DFAT notes that significant parts of India remain conservative and patriarchal,[15] and gender-based attitudes are deeply culturally entrenched[16]. 

21. DFAT notes that traditional social practices and the low status of women in many parts of the country are linked to domestic and gender-based violence.  Forms of gender-based violence include honour killings by family members who consider the honour of their family is jeopardised (when a woman’s virginity or ‘marriageability’ is lost or when women seek to divorce or separate from an abusive husband), and acid attacks (more commonly targeted at women than men) – seen as a subset of honour killings – in which (according to DFAT) acid is thrown on a person over issues of perceived shame or honour, unrequited love or rebuffed marriage demands or dowry disputes.[17]

22. In terms of dowry-related disputes and risks DFAT states:

    The illegal yet common tradition of a bride’s family needing to pay a dowry can lead to female infanticide, sex-selective abortions and dowry-related harassment and deaths (women murdered or driven to suicide in response to the attempt to extort a higher dowry). Available data likely understates the true extent of violence against women due to underreporting of cases[18].

23. In terms of legal protection, country information indicates that the government of India has enacted significant legal reforms since a woman was gang raped and then killed in Delhi in 2012, including an expansion of the definition of rape, introduction for new crimes such as stalking, acid throwing and strengthening related sentences.[19]

24. Nonetheless reports indicate that despite legal reforms, law enforcement and legal recourse for rape (and other gender-based violence) victims is inadequate, and the judicial system is overtaxed and ineffective[20]. 

25. DFAT also reported that:

    In practice, cultural factors prevent women from reporting violence and police may not be effective in providing state protection (see Police) and may take no action or may encourage the parties to reconcile. Marital rape is not a crime in India, a matter being considered by the Supreme Court as at the time of publication[21].

    …

    Sources told DFAT that police sometimes tell couples to reconcile after violence and will not take any further action.[22]

26. Domestic violence against women is both a serious and common problem in India, despite being a criminal offence since 1983, with the Protection of Women from Domestic Violence Act 2005 further strengthening laws (the PWDVA).[23] Whilst the PWDVA provides the right to legal aid, shelter and medical care, DFAT reports in practice many shelters are in poor condition and the quality and availability of services limited.[24]  More broadly enforcement of the law is poor.[25]

27. These sentiments are echoed in the UK Home Office’s November 2022 country policy and information note on women fearing gender-based violence in India.  Specifically, including in summary that:

    ·Gender-based violence against women and girls in India is widespread, particularly in the north, compounded by patriarchal attitudes and gender stereotypes.[26]

    ·Practices such as forced or child marriages, dowry-related deaths, domestic violence, rape, acid attacks, ‘honour’, unsafe gender-selective abortions, sexual harassment, coerced and involuntary sterilisation and accusations of witchcraft continue to be practised despite laws prohibiting them.[27]

28. In terms of the situation for single, including divorced and/or separated women in India, DFAT states that being (and remaining) a single woman in India is difficult and relatively uncommon; that social access is difficult without a husband (given marriage is a central feature of social lives); and sources told DFAT it is difficult or impossible for single people (men or women) to rent accommodation, even in large cities.[28]  

29. DFAT assesses that divorce can be socially and financially devastating for women.[29]  They assess that:

    The number of women who are single by choice or circumstance is rising, however Indian society can be very traditional and can be hostile to the unmarried, whether they are single because of divorce or widowhood. Single women can experience stigma and stereotypes, for example perceptions of being ‘choosy, morally loose or headstrong’, according to a Delhi-based sociologist who spoke to the South China Morning Post in November 2020. The Print, an Indian online newspaper, noted a ‘growing subculture’ of single women as characters in books and movies or within organisations, in July 2019. DFAT notes that the number of single women is growing, however assesses the phenomenon is nascent. DFAT assesses that single women experience a moderate risk of societal discrimination and a low risk of official discrimination[30].

30. Although the number of divorced women in India has doubled over the past 20 years, it still remains low at only 1.1 per cent of women (according to a 2019 report).[31] The number of single women is higher given that incudes divorced, unmarried, separated and widowed women, who according to a 2020 DFAT report make up 21 per cent of India’s female population.[32]

31. A 2019 UN survey of several hundred separated/deserted and divorced women, covering mostly urban areas across the country, found the majority were dependent on their families (particularly parents and brothers) in terms of financial support and living arrangements after separation, and if they had some income it was insufficient to live on their own or independently with their children.[33]

32. Reports indicate women are more vulnerable and/or at risk of sexual and gender-based violence in the absence of a male partner and/or abandonment by their families.[34]

33. The United States Department of State (USDOS) in their 2023 country information report on human rights practices in India for 2022 identified several significant human rights issues.  These included credible reports of ‘…lack of investigation of and accountability for gender-based violence, including domestic and intimate partner violence, sexual violence, workplace violence, child, early, and forced marriage, femicide, and other forms of such violence’.  The report also states that dowry disputes in India remained a serious problem. 

34. With respect to state protection for gender-based violence the USDOS report states:

    …Law enforcement and legal recourse for rape survivors were inadequate, and the judicial system was unable to address the problem effectively. Police sometimes worked to reconcile rape survivors and their attackers. In some cases, they encouraged women rape survivors to marry their attackers[35].

35. In the applicant’s case she would be returning to India as a single, divorced woman who has experienced sustained and serious levels of domestic violence at the hands of two former husbands, the first who remains in India and has continued to act with hostility and threats towards her via her sisters who remain there.  A large part of his threats and harassment of the applicant’s parents in particular during and after their marriage appears designed to continue to extract money from them, considered as dowry-related abuse.  This is defined by the United Nations Division for the Advancement of Women as ‘any act of violence or harassment associated with the giving or receiving of dowry any time before, during or after the marriage’.[36] Such dowry abuse was one of the ways [Mr B] sought to exert control over the applicant. 

36. In these circumstances and given the country information about risks such women in India face, the Tribunal accepts the applicant faces a real chance of serious harm from [Mr B], her first husband, for reasons of her membership of a particular social group of women in India on return.

37. The Tribunal is satisfied that ‘women in India’ constitutes a particular social group, as defined in s 5L of the Act, because:

    ·there is a characteristic shared by each member of the group including the applicant, which is of female gender (s 5L(a));

    ·the characteristic is innate (s 5L(c)(i)) (noting that the Explanatory Memorandum to the Bill which introduced s 5L said that gender is innate);[37]

    ·or the characteristic distinguishes the group from society (s 5L(c)(iii));[38] and

    ·the characteristic is not a fear of persecution (s 5L(d)).

38. Australian courts have consistently found that ‘particular social group’ should be interpreted broadly.[39]

39. The Tribunal is satisfied the applicant is a member of the particular social group of women in India and that the persecution feared is for reasons of her membership of that particular social group. 

40. Specifically the Tribunal accepts should the applicant return to India, now or in the foreseeable future, there is a real chance she will face serious harm from her ex-husband, [Mr B] as required by s 5J(4)(b) of the Act, in that it involves threats to her life or liberty or significant physical harassment or ill-treatment.  The Tribunal considers that the applicant’s membership of a particular social group of women in India is the essential and significant reason for the persecution which she fears, as required by s 5J(4)(a) of the Act.  Also, the persecution which she fears involves systematic and discriminatory conduct, as required by s 5J(4)(c) of the Act, in that it is deliberate or intentional and involves her selective harassment for reason of her gender.  Country information set out above shows the gendered nature of domestic and family violence, and other forms of gender-based violence such as dowry abuse in India, which is predominantly perpetrated by men against women in the context of intimate partner relationships more broadly.[40]

41. As well, the Tribunal has taken the applicant’s personal vulnerabilities into account in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628. It has accepted she experienced serious harm in the past at the hands of [Mr B] and that these threats whilst reduced, have not completely abated, despite their divorce and passage of time. She has also experienced violence at the hands of her third husband in Australia, more recently. She has mental health problems as a result, including anxiety and depression as evidenced by contemporaneous reports provided by her treating psychologist. Taking these considerations into account, the Tribunal is satisfied any future harm or even threats of harm the applicant may experience could amount to serious harm as contemplated in the Act.

42. In this case, the applicant fears her former husband who is a non-state actor.  The Tribunal accepts the police did not take any action when the applicant (and her second husband) lodged complaints about him in the past, although notes this was some time ago and it is not entirely clear why not.  

43. Nonetheless, as noted, DFAT states that violence against women is a significant problem in India and state protection is often inadequate. In some cases police return perpetrators to violent settings.  More broadly police in India have limited resources, the judiciary is overburdened and corruption widespread, and there are concerns about it becoming more politicised.[41]  Furthermore, despite the existence of laws aimed at addressing gender-based violence, there are persistent gaps in enforcing laws, among other issues.[42]

1. Given these considerations including such country information, the Tribunal is satisfied that effective protection measures are not available to the applicant in her home area in Punjab, provided by the state, party or organisation.  The Tribunal finds that the applicant would not be able to access effective protection if returned to India for the purposes of s 5LA(2) of the Act.

2. The Tribunal has considered if the real chance of persecution the applicant fears in Punjab from [Mr B] based on her membership of a particular social group of women in India relates to all areas of the country as required by s 5J(1)(c).  When asked about this at hearing the applicant said it would be impossible (for her to move away safely) given [Mr B] has connections with drug dealers which is how he finds out when her parents return to visit India.

3. Country information referenced above indicates that risks of gender-based violence women face – and in particular single and/or divorced women (without male support) is throughout India, and there is no indication that there are geographic limitations to the risk of violence (among other things) or the risk women in India face generally.  Furthermore, the Tribunal accepts [Mr B]’s sustained harassment (and reach) of the applicant in India, including after her divorce, when living with her second husband and his family, and when trying to move to another area away from her then in-laws in Amritsar.  Accordingly the Tribunal is satisfied the real chance of serious harm relates to all areas of India.

4. Requiring the applicant to modify her behaviour would require her to alter or conceal her gender identity which is impermissible pursuant to s 5J(3)(c)(vi) of the Act.

5. Consequently, the Tribunal is satisfied the applicant faces a well-founded fear of persecution as required under s 5J of the Act.

   SECOND NAMED APPLICANT

6. At the protection visa stage the applicant articulated protection claims on behalf of her son in Part C of the protection visa application form.  She states her son was a victim of family violence at the hands of his father ([Mr B]) directly and given the violent environment he was exposed to whilst growing up.  She states they are fearful if they return to India her [Mr B] will force her son to live with him and he will be hurt again. 

7. In her November 2016 statutory declaration provided to the Department the applicant states [Mr B] used to beat her sometimes in front of their son, and many times slapped him hard and yelled at him. 

8. The applicant has also claimed [Mr B] threatened to kill herself and the second named applicant, if she ever left him, as noted.

9. The second named applicant − who is now [Age] − told the Tribunal given he was [Age] when he left India he does not remember much about his father.  He understood his father was abusive and his parents had separated but no one told him any details, initially.  As he became older he asked his uncle, who clarified why he and his mother had to stay in Australia and why they could not visit India.  Also why he has had no contact with his father: his uncle told him he was never attached to him.  The second named applicant confirmed he primarily stayed at his maternal grandparents’ house when young in India.

10. The second named applicant said although he has had no contact with his father, he remains concerned about how he might treat him if he had to return to India, noting his propensity towards violence.  He is also worried about his mother: he wants her to have a peaceful life.

11. The Tribunal accepts the second named applicant faced direct and indirect violence and threats at the hands of his father in India, and witnessed his mother being abused as claimed.  Although he has had no contact with his father since he left India, the Tribunal accepts [Mr B] continues to threaten and harass his maternal aunts who remain in India, including threatening to reclaim the applicants as his on return, who he considers as part of his family despite the divorce and passage of time.  There could be several reasons for this, including to continue to use threats to extort money from the second named applicant and/or his family members, as he has done in the past (successfully), which is an ongoing form of dowry abuse. 

12. For these reasons the Tribunal finds the second named applicant faces more than a remote chance of serious harm at the hands of his father, [Mr B], on return to Punjab, India in the foreseeable future. 

13. The Tribunal is satisfied the real chance of serious harm on return to India from his father is for the essential and significant reason of his membership of a particular social group consisting of his (mother’s) family as per s 5K of the Act.  It is satisfied the persecution he fears involves systematic and discriminatory conduct.  Further, relying on the same reasoning (and country information) as in respect of his mother, the Tribunal is satisfied that the real chance of persecution relates to all areas of India and that the second named applicant would not be able to access effective protection if returned to India from the persecution he fears from his father. The Tribunal is also satisfied behaviour modification is impermissible in the second named applicant’s case.

14. Accordingly the Tribunal finds the second named applicant has a well-founded fear of persecution on return to India for the purposes of s 5J.

    Third country protection – s 36(3)

15. The Tribunal notes Australia is taken not to have protection obligations if a person has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.

16. Having accepted that there is a real chance the applicants will experience serious harm from [Mr B] on return to India, the Tribunal has considered whether they have a right to enter and reside in a third country: in this case arising on the material before it, Nepal and the US.  Further, if so whether they have taken all possible steps to avail themselves of this right to enter and reside in these countries: s 36(3).

100.   There are court authorities which provide guidance on the scope and application of this provision, particularly the decisions in MIMAC vSZRHU [2013] FCAFC 91 and SZTOX v MIBP [2015] FCAFC 77. In the latter case, the Court confirmed that the ‘right’ in s 36(3) is not confined to a right which is sourced in domestic law, such as a statute, regulation or other legislative instrument. Rather, the source of the right might also lie in an executive act, such as a treaty, executive policy or other executive instrument.

101.   In this case the Tribunal has first considered the application of the 1950 Indo-Nepal Treaty of Peace and Friendship to the applicants’ situation.  Article 7 grants to Nepalese nationals in India and Indian nationals in Nepal ‘the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature’.  Country information indicates that administrative arrangements giving effect to the terms of the 1950 Indo-Nepal Treaty of Peace and Friendship are in place which allows the entry of Indian nationals into Nepal without seeking a visa or other permission. The information indicates that an Indian national requires a valid Indian passport or travel document issued by the Government of India.[43]

102. In these circumstances the applicants, as Indian nationals, may have a presently existing right to enter Nepal. However given country information indicates the border between the two countries is porous, and movement of Indians or Nepalis across the border is largely unhindered,[44] and the applicant’s evidence – which the Tribunal accepts – that [Mr B] was able to monitor her movements and thwarted her and her second husband’s attempts to relocate away from his family’s home in Amritsar at least once in the past, the Tribunal considers it is not far-fetched that [Mr B] could locate the applicants even if they moved to Nepal. Therefore, it is satisfied that the applicants have a well-founded fear of being persecuted for reasons of their membership of the particular social groups articulated earlier by [Mr B] in Nepal. In such circumstances, s 36(3) does not apply (s 36(4)(a)).

103.   The Tribunal has also considered if the applicants are taken not to have protection obligations based on a potential right to enter and reside in the US.  This arises given the applicant’s evidence that in 2018 her parents applied for permanent US visas for her and her son, and their petition was approved by the US Citizenship and Immigration Services on 4 August 2020 (she provided a copy of the approval letter to the Tribunal). 

104.   At hearing the second named applicant confirmed that several years ago they were approached by US immigration authorities about the visa who advised the next step was to conduct an interview in order to confirm their identities, but that this has not yet happened.  He stated that his mother was unable to renew her Indian passport when it expired and was advised by staff from the Indian consulate that she had to go to India to do so, which she is afraid to do, for the reasons discussed.  The applicant told the Tribunal she is concerned that even if the interview with the US immigration officials takes place, they will not accept her identity because her Indian passport has expired. 

105.   The Tribunal accepts the applicants have had their petition (made by the applicant’s [parents]) for permanent residency in the US approved.  However according to information from the US Department of State’s webpage about the process involved, this is only the second step in a 12-step process required before a permanent visa may be granted, which includes an interview with immigration officials in a US Embassy or Consulate General. 

106.   Some of the steps appear largely administrative – for example providing relevant documents (including identity documents and evidence of the petitioners’ financial capacity) – yet it is clear the steps involve an assessment process and the grant of the visa not determined before all steps are carried out.  The Tribunal notes warnings contained on the website about applicants (for the US visas) not to make permanent financial commitments, such as selling their house, car or property or resigning from their job until they have actually received a visa.[45]  

107.   Given this and noting current judicial authority indicates that the right referred to in s 36(3) must be an existing right, and not a past or lapsed right, or a potential right or expectancy[46] [Tribunal emphasis], the Tribunal is not satisfied that at the time of this decision, the applicants have an existing right to enter and reside in the US.

108.   For these reasons the Tribunal finds that s 36(3) does not apply to the applicants.

Other matters:-

109.   The Tribunal has before it the applicants’ Departmental file relating to their protection visa application.  The delegate has placed restrictions on some of the material given to the Tribunal by the Department by certifying, in writing, that disclosure of the material is contrary to the public interest under s 438 of the Act in a certificate dated 29 October 2021.  However the Tribunal is not satisfied the reason given provides a sufficient basis for public interest immunity and therefore finds the certificate invalid.

110.   The information to which the certificate is subject relates to records of financial transactions the applicant has made to her sisters in India from 2011 to 2017, and results of a search of the applicant’s social media (which was nil).  There is nothing adverse in the information, which the Tribunal considers either supports the applicants’ cases, or is neutral. 

CONCLUSION

111. For the reasons given above the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations and they satisfy the criterion set out in s 36(2)(a).

DECISION

112.   The Tribunal remits the matter for reconsideration with the following directions:

· that the first named applicant and the second named applicant satisfy s 36(2)(a) of the Migration Act.

Nicole Burns
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.

…

[1] Dated 6 March 2015; 13 July 2016; 7 November 2019; and 11 May 2021

[2] Dated 5 November 2023

[3] In his report dated 6 March 2015

[4] Dated 13 July 2016

[5] Dated 14 February 2017

[6] Dated 5 May 2021

[7] Dated 12 May 2021

[8] Dated 5 May 2021

[9] Dated 5 May 2021

[10] Dated 17 March 2017

[11] DFAT Country Information Report: India, 29 September 2023 at 5.6

[12] DFAT Country Information Report: India, 29 September 2023 at 3.131

[13] DFAT Country Information Report: India, 29 September 2023 at 3.118

[14] DFAT Country Information Report: India, 29 September 2023 at 3.119, 3.120; ‘Do Female Lives Matter?’, Economic and Political Weekly (India), 8 October 2022; ‘Women At Work: Fear For Women’s Safety Restricts Their Mobility--And Their Careers’, IndiaSpend, 12 November 2022; ‘India Discrimination Report 2022’, Oxfam India, 15 September 2022, pp 28-31.

[15] DFAT Country Information Report: India, 29 September 2023 at 3.114

[16] DFAT Country Information Report: India, 29 September 2023 at 3.122

[17] DFAT Country Information Report: India, 29 September 2023 at 3.123 – 3.125

[18] DFAT Country Information Report: India, 29 September 2023 at 3.123

[19] DFAT Country Information Report: India, 15 July 2015 at pp 15-16

[20] US Department of State. Country Reports on Human Rights for 2022 - India, 20 March 2023, p 34

[21] DFAT Country Information Report: India, 29 September 2023 at 3.126

[22] DFAT Country Information Report: India, 29 September 2023 at 3.127

[23] UK Home Office, Country Policy and Information Note India: Women fearing gender-based violence, July 2018, pp 35-36

[24] DFAT Country Information Report: India, 29 September 2023 at 3.129 & 3.130.

[25] ‘Domestic Violence Act 2005: SC directs union to hold meetings with various ministries, states/UTs, address hopeless inadequacy of protection officers’, Sabrang India, 27 February 2023

[26] UK Home Office, Country Policy and Information Note on Women Fearing Gender-based Violence in India, November 2022 at 2.4.6

[27] UK Home Office, Country Policy and Information Note on Women Fearing Gender-based Violence in India, November 2022 at 2.4.8

[28] DFAT Country Information Report: India, 29 September 2023 at 3.132

[29] DFAT Country Information Report: India, 29 September 2023 at 3.133

[30] DFAT Country Information Report: India, 29 September 2023 at 3.135

[31] ‘Progress of the World’s Women 2019-2020: Families in a Changing World’, UN Women, 25 June 2019, p.56

[32] DFAT Country Information Report: India, 10 December 2020, p 41

households without male support, including access to employment, housing and support services, particularly in Delhi, Mumbai, Chandigarh and Bengaluru; women’s housing, land, property and inheritance rights (2017-April 2019)’, Immigration and Refugee Board of Canada, 3 May 2019

[34] The Week, ‘A draft policy for single women in India’, 25 June 2020

[35] US Department of State. Country Reports on Human Rights for 2022 - India, 20 March 2023

[36] United Nations, 2009, ‘Good practices in legislation on ‘harmful practices’ against women’, United Nations Division for the Advancement of Women and United Nations Economic Commission for Africa.

[37] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.178 at [1220]

[38] This section codifies the decision in Applicant S v MIMA (2004) 217 CLR 387 that a particular social group be distinguished from the society at large

[39] Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 (Lockhart J); Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309; Chen Shi Hai v MIMA (2000) 201 CLR 293

[40] National Domestic and Family Violence Bench Book, Dynamics of Domestic and Family Violence, at

[41] ‘How the judiciary has been a political boon for the Modi government’, Scroll.in, 9 January 2023; ‘Freedom on the Net 2023 - India’, Freedom House, 4 October 2023

[42] UK Home Office, Country Policy and Information Note on Women Fearing Gender-based Violence in India, November at 2.5.4

[43] 2020, pp 41-42; DFAT Country Information Report: Nepal, 1 March 2019, pp 31-33

[45] Travel.State.Gov, U.S Department of State – Bureau of Consular Affairs, Immigrant Visa process, at

[46] [2001] FCA 1391 (Gray J, 2 October 2001).