2201577 (Refugee)

2201577 (Refugee) [2023] AATA 2228 (19 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sousan Oboodi-Mehr
CASE NUMBER:  2201577
COUNTRY OF REFERENCE:                   India
MEMBER:Mark Bishop
DATE:19 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 19 April 2023 at 10:43am
CATCHWORDS
REFUGEE – Protection Visa – India – political opinion – in support of the Congress Party – membership of particular social groups – persons in inter-caste marriages in Punjab – mental health issues – applicants have a well-rounded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 46, 65, 91,499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim[1] to be citizens of India applied for the visas on 22 July 2013 and the delegate refused to grant the visas on 12 February 2014.
[1] See decision record pages 1 and 2
On [date] December 2021 [Judge A] of the Federal Court of Australia (FCA) ordered[2] that an appeal be allowed and the matter be remitted to the AAT, differently constituted, to be determined according to law. A factual history of the background to the current review hearing is set out[3] in the pre-hearing submissions to the Tribunal. Relevant Federal Circuit Court of Australia (FCCA) and FCA decisions are set[4] out in Case number 1602925.
[2] See [deleted]
[3] See Document ID number 10925261 pages 1 and 2
[4] See Document ID numbers 8090719, 8110808, 9410651 and 9410669
The applicant provided[5] a copy of the decision record to the Tribunal in case number 1404577. The applicant did not provide a copy of the decision record in case number 1602925. The Tribunal accessed a copy of the decision in Case number 1602925. In addition the Tribunal notes the extensive references in Case number 1602925 in the findings of [Judge A] in [deleted].
[5] [Deleted]
The applicants appeared before the Tribunal on 18 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were represented in relation to the review.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the first review decision[6] the delegate made the following findings:
[6] Case number 1404577
·The two applicants are citizens of India, are married and have been continuously resident in Australia since 2009.
·The applicant arrived in Australia on [date] April 2009 as the holder of a Subclass 572 (Student) (Vocational Education Sector) visa. His wife was the primary visa holder; he was her dependant. They were refused the grant of further student visas on 18 November 2011. The applicant remained in Australia unlawfully until 22 July 2013, when he made this application for a Protection (Class XA) visa. His wife remained lawful on an associated bridging visa while she sought review of the decision to refuse to grant her a further student visa. The Migration Review Tribunal affirmed the Department’s decision on 23 August 2013, and she applied to ‘join’ her husband’s protection visa application on 9 September 2013. The applicant and his wife are both currently lawful on associated Subclass 030 (Bridging C) visas.[7]
[7] Decision record paragraph 3 page 2.
·The applicant’s claims for protection are set out in the decision record as follows:
oHe and his wife are from different caste backgrounds. Most of his relatives objected to their marriage. They abused and threatened him.
oHis family is very active in politics. He and his family were active members of the same party. They had many political enemies who threatened and used violence against them.
oThe police have never helped him or his family.
oHis family told him it is not safe for him to stay in India.
oKillings and kidnappings due to religious differences are very common in India. He has heard of people in similar situations to his who were kidnapped and tortured.
oHe fears that his conservative relatives and political enemies will harm him if he returns to India.
·The applicant’s evidence was internally coherent and consistent and plausible as it related to Country Information (CI).
·The delegate made a positive finding of credibility as to the applicant. He stated[8] “…the applicant has a genuine, subjective fear of being harmed in India for the reasons stated at interview.”
·The delegate found[9] that the harm feared on account of the applicant’s political activity in support of the Congress Party has a clear nexus to the Convention reason of political opinion.
·The delegate was satisfied[10] the Refugees Convention grounds of political opinion and membership of a particular social group comprising ‘persons in inter-caste marriages in Punjab’ are the essential and significant reasons for aspects of the harm feared in this case, as required by paragraph 91R(1)(a) of the Migration Act.
·The CI shows that the quality of State protection available in Punjab is variable. The delegate considered that the context in which the applicant fears serious harm satisfies the requirement in paragraph 91R(1)(c) for the harm to involve systematic and discriminatory conduct. The delegate was satisfied the harm feared amounted to persecution.[11]
·The delegate accepted there was cumulatively a real chance that the applicant could be seriously harmed if he returns to his village. The delegate accepted that some of his extended family members are motivated to punish him for marrying a lower-caste woman. Given his existing profile as a Congress Party member and supporter in his local area, the delegate accepted that Akali Dal members could again try to intimidate him through violent means as they have in the past.[12]
·The delegate accepted that the applicant may not have access to adequate State protection from harm perpetrated by private actors in his home region of Punjab, and therefore a real chance of persecution was established.
·In all the circumstances of this case, the delegate was satisfied that the applicant and his wife would not face a real chance of persecution in another part of India outside Punjab and that it is reasonable, in the sense of practicable, for them to relocate to an urban centre such as Mumbai. The delegate made a finding find that the applicant did not have a well-founded fear of persecution in relation to India as a whole as an internal flight alternative was reasonably available to him.
[8] Decision record paragraph 9 page 7.
[9] Decision record Part B paragraph 2 page 8.
[10] Decision record Part B paragraph 2 page 9.
[11] Decision record Part B paragraph 2 page 9.
[12] Decision record Part B paragraph 4 page 12.
In the second review decision[13] the delegate and thereafter on appeal the FCCA[14] made the following findings as summarised by [Judge A] in [deleted]:
[13] Case number 1602925
[14] [Deleted]
·On the basis of the medical evidence before it, the Tribunal accepted[15] that the appellants suffer from depression, anxiety and stress.
[15] [Deleted]
·The Tribunal accepted[16] that the appellants were in an inter-caste marriage, which was a particular social group for the purposes of s 36(2) of the Act, and that the appellants faced a real chance of serious harm in Punjab on the basis of their marriage and on the basis of political opinion. The Tribunal found (at [140]) that it would be unreasonable for the appellants to relocate to another part of India because “they may not be able to access health care they need in relation to mental health”.
[16] [Deleted]
·However, as it had on the first review, the Tribunal concluded (at [141]-[148]) that s 36(3) of the Act applied to the appellants and Australia therefore did not owe them protection obligations. In reaching this conclusion, the Tribunal found (as it had on the first review) that the appellants had no well-founded fear of persecution in Nepal for a Convention reason and that there was no real risk of significant harm in Nepal, for the purposes of the complementary protection criteria. In particular, the Tribunal found that the appellants’ inability to access health services in Nepal for their physical and mental conditions (either of the same standard as in Australia or at all) lacked the required nexus with the Convention reasons. The Tribunal also found (at [158]-[174]) that any harm suffered by the appellants by reasons of no, or no adequate access to health services in Nepal did not rise to the level of “significant harm” as defined in the Migration Act.[17]
[17] [Deleted]
·The appellants’ grounds of judicial review[18] included a contention that the Tribunal erred in its construction of s 36(3) and that the Tribunal breached s 499 of the Act and Ministerial Direction No 56 by failing to have regard to the most recent DFAT Country Information Report on Nepal. On 20 January 2021, the FCCA rejected each of these grounds, and the appellants’ other ground of judicial review, and dismissed the application.[19]
[18] [Deleted]
[19] [Deleted]
·The appellants filed a notice of appeal in this Court [in] February 2021, raising two grounds of appeal:
1.that the Tribunal erred in its construction of s 36(3), in that the “right” held by the appellants under the Indo-Nepal Treaty should not be construed as a right to enter and reside in a third country for the purposes of s 36(3) of the Act; and
2.that the Tribunal contravened s 499 of the Act, by failing to apply Ministerial Direction No 56 and take into account in its decision the DFAT Country Information Report – Nepal dated 21 April 2016 (DFAT Report on Nepal).
·[Judge A] dismissed[20] the first ground of appeal.
·[Judge A] upheld[21] the second ground of appeal. [Judge A] referred to Ministerial Direction No 56, the significance of a DFAT Report on Nepal, the lack of Tribunal reference to this DFAT Report, this failure was material to the eventual Tribunal decision, the DFAT Report on Nepal contained many express references to various integers of the applicant’s claims for protection and the absence of a basis for the FCCA to conclude the Tribunal did have regard to the DFAT Report on Nepal.
·[Judge A] made the following findings:
oThe DFAT Report on Nepal is conspicuous by its absence. I find this is because it is likely the Tribunal did not refresh the country information to which it had referred in its previous decision, aside from anything submitted by the appellants.[22] I find there is no basis to infer the Tribunal considered the DFAT Report on Nepal at all. I find it is likely the Tribunal entirely overlooked its existence.[23]
oThe DFAT Report on Nepal contained numerous references to ethnic and caste distinctions, the negative impact of a 2015 earthquake on the economy, health care standards are considered inadequate, ethnic divisions remain sensitive in Nepal, the unchecked movement of Indians into Nepal, anti-Indian sentiment on the part of some Nepalis, the significance of caste in Nepal, discrimination on the basis of caste is still widespread, the practice of downgrading one’s caste as a result of inter-caste marriage still exists in remote and rural areas, inter-caste couples face the continuing reality of disapproval, false accusations of criminal activity, physical attacks and family and social humiliation, Nepalese women face a large range of active and harmful discriminatory measures and DFAT assesses women’s fear and experience of sexual harassment and violence as real.
oThe extracts and comments extracted immediately above make it clear that, on many of the issues raised by the appellants before the Tribunal, the content of the DFAT Report on Nepal had credible and significant information. In particular, it was capable of being seen as supporting what the appellants were saying about the risk posed to them through their inter-caste marriage, the porous border with India and the possibility they would be found by relatives and those intent on harming them, bearing in mind the Tribunal’s finding they had a well-founded fear of persecution in the State of Punjab and it was not reasonable for them to relocate anywhere else in India (see [139]-[140]). The report was also capable of supporting much of what the appellants were saying to the Tribunal about the poor levels of health services and access in Nepal, and their access to the basics of life. The report was also capable of being relevant to the assessment to be undertaken by the Tribunal in respect of s 36(4)(a).
oI accept that there was enough in that report to find that the appellants were deprived of the realistic possibility of a different outcome on their claim to fall within the exception in s 36(4) of the Migration Act, because of the Tribunal’s failure to consider the DFAT report as a whole, and these kinds of passages in particular.[24]
[20] [Deleted]
[21] [Deleted]
[22] [Deleted]
[23] [Deleted]
[24] [Deleted]

On 4 April 2023 the applicants made written[25] submissions to the Tribunal accompanied by a joint statutory declaration[26], psychologist report[27] dated 23 March 2023, various CI Reports[28] into Nepal and Human Trafficking and other press reports.[29] The Tribunal provides the following summaries of these reports:
[25] Document ID number 10925261
[26] Document ID number 10925262
[27] Document ID number 10925263
[28] Document ID numbers 10925265 and 10925266
[29] Document ID numbers 10925268 and 10925269
Pre-hearing legal submission
This submission outlines the applicant’s immigration history from April 2009 until time of decision, the legal framework[30], right of entry and [to] reside in Nepal and submissions as to limitations on this entitlement in that the applicants who do not have a valid passport and have been refused the issue of a new passport by Indian authorities because the applicants have applied for protection in another country,[31] the continuity of discrimination and persecution[32] in Nepal and complementary protection with the conclusion that:
·that there is a real risk that the applicant and his family will suffer significant harm on their return to India given their inter caste marriage and political backgrounds. Further it is submitted that the applicants will not be able to obtain protection from the State or in a third country and relocation is not an option. Although they have a right to reside in Nepal, they are unable to enter the country in order to reside there for the reasons mentioned above.
[30] Document ID number 10925261. See final paragraph of submission under heading Legal Framework at page 2 that states “It is submitted that the applicant’s claim in this matter has been before two Tribunals that accepted the applicant’s well-founded fear of persecution due to his inter cast marriage. It appears that the issue has always been whether the applicants can relocate to Nepal and reside there safely.”
[31] Document ID number 10925261 page 3 under heading Passport and Visa in Nepal. See paragraph 3 of submission under heading Passport and Visa in Nepal that states “The Indian authorities will not issue a passport to those citizens who have applies for protection in another country (please see Form 1 attached herewith that must be completed as part of Indian passport application). The applicant, his wife and son do not have a valid passport and have not been able to obtain one due to their protection visa application in Australia.” The Tribunal notes that Document ID number 10925270 is a blank copy of a Declaration required to be made by an applicant for an Indian passport that “I HAVE NEITHER TAKEN ASYLUM NOR APPLIED FOR ASYLUM/REFUGEE STATUS;”
[32] Document ID number 10925261 page 5 under heading Discrimination and Persecution in Nepal
Statutory Declaration
The applicants declared the following:
·The fear for their lives if returned to India. India is more corrupt than ever. The justice system and police department would not be able or willing to help us. In Punjab State new legislation is being enacted against Sikhism due to the rise of Khalistan movement. The Indian authorities are stirring Punjab and interfering with peace causing riots in order to stop the separatist movement that seeks to create a homeland for Sikhs by establishing an independent state in Punjab.
·[The applicant]’s uncle and family members are still politically active and quite powerful (The uncle supports Akai Dal and we supported the Congress). They have not forgotten about us and our marriage which was not approved by them.
·In the past years and while we lived in Australia, the uncle has not stopped threating us. The birth of our baby has fuelled their hatred and the family is very upset that our inter caste marriage has produced a baby that has “impure” blood. The family would do everything in their power to hurt us and teach other family members a lesson that no one could marry into a lower cast.
·Although we have a right of entry and residence in Nepal, however we would not be able to travel to Nepal. To enter Nepal we would need valid passports which we do not have. A few months ago we investigated and found out we would not be able to obtain an Indian passport due to our application for a protection visa in Australia. Without a passport we would be Stateless and would not be able to return to India or go to Nepal.
·Other than security and safety issues in Nepal, we have no home, no employment in Nepal and we don’t speak the language and we would stand out in Nepal because of that.
Passport Issues
As noted above in paragraph 26 and footnotes 30 and 31 the applicant made reference in his written submission to a form 1[33] that contained the following statement: Indian nationals are required to declare that they “HAVE NEITHER TAKEN ASYLUM NOR APPLIED FOR ASYLUM/REFUGEE STATUS”. The applicant failed to provide any submissions of consequence that address the refence in either legislation or regulations that provides any authority that this provision in any way limits the power of either government authorities or authorities such as VFS Global[34] to issue passports or renew expired passports to Indian nationals abroad who have applied for protection or asylum seeker status in their country of temporary residence.
[33] Doc ID number 10925270
[34] See paragraph 33 below.
The Departmental file contained a copy of the first applicant’s passport. It showed a date of issue of [date] 2011 and date of expiry of [date] 2021. The Departmental file contained a copy of the second applicant’s passport. It showed a date of issue of [date] 2006 and date of expiry of [date] 2016.[35]
[35] [Deleted]
The Tribunal examined the relevant Act[36] and Regulations.[37] Neither provide any provision which clearly states that citizens who have applied for asylum in another country will be denied a passport. Section (6) of the Act sets out the basis of refusing an Indian passport. It provides as follows:
(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and no other ground, namely: -
(a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India.
[36] Passport Act 1967
[37] Passport Rules 1980
Section 6 (1) of the Act does not refer to applicants who have taken or applied for asylum in another country. The Tribunal notes the s 6(1) refers to “…visiting any foreign country…” and does not contain any reference to Indian nationals who have been long term residents of foreign countries. In addition the Tribunal has not been made aware the applicant has engaged in any activity whilst in Australia that might fall within the words “…activities prejudicial to the sovereignty and integrity of India.”
An October 2018 DFAT Country Information Report[38] (CIR) on India indicates that ‘[r]eturnees to India use either an existing passport, a newly issued passport, or an emergency certificate, issued through an Indian diplomatic mission’. India’s ‘central government recognises the passport as its primary identity document’. The Ministry of External Affairs ‘is responsible for issuing passports in India and at diplomatic and consular missions abroad’[39]. Indian citizens who are ‘without a valid passport may be eligible for an emergency certificate, which enables one-way travel to India. Indian diplomatic and consular missions abroad can issue emergency certificates’[40].
[38] ‘DFAT Country Information Report - India’, Department of Foreign Affairs and Trade, 17 October 2018, p.28, CIS7B839419830 [see page 69 of current DFAT report issued December 2020]
[39] Ibid, page 29 [see page 69 of current DFAT report issued December 2020]
[40] Ibid, page 29 [see page 69 of current DFAT report issued December 2020]
In relation to expired passports, an overview on the website of VFS Global, which processes passport applications for Indian nationals in Australia, in relation to obtaining a new passport on the expiry of a passport states:
As instructed by the High Commission / Consulate General, VFS Australia shall accept only online filled, printed and signed application’s form at all IPVSC locations.
In compliance with the regulations of International Civil Aviation Organisation (ICAO), only machine readable printed passports are now to be accepted for international travel. The High Commission of India and Consulates in Sydney, Melbourne and Perth will hence no longer entertain any request for issue of Short Validity Passport/Emergency Passport. If there is a case of extreme emergency, a one way Emergency Certificate can be issued to enable Indian nationals to travel to India to attend to the emergent situation. For the return journey, they would need to contact the nearest Passport Issuing Authority to obtain a new passport[41].
[41]‘ India Visa Information - Australia - Passport Information - New Passport (On Expiry Of Passport)’, VFS Global, n.d., Accessed 17 December 2019, 20191217162432
The information on Emergency Certificates in the Consular Services offered by the High Commission of India and Consulates section of the website of the High Commission of India in Canberra (see: has not altered since 2019. Information on the VFS website regarding forms to be completed to apply for a new passport when a passport has expired indicates that Form I must be completed where a person’s passport has expired more than one month prior to the date of lodgement of the application[42]. Form I asks the applicant to declare they ‘have neither taken asylum nor applied for asylum/refugee status’. (See: The information requested on Form I remains unchanged from 2018[43].
[42] Application Forms and Checklist - New Passport (On Expiry Of Passport) - Additional documents’v, VFS Global.
[43] India: Passport application procedures – failed asylum seekers’, 'Passport Application Declaration - Form-I', VFS Global.
There is Indian judicial authority that addresses whether Indian nationals who previously lodged protection visa applications have been successful in obtaining a new passport. In January 2018 a two judge bench of the Indian High Court in Delhi upheld a previous ruling from a single Delhi High Court Justice ruling in 2014, that claiming asylum abroad was not a valid ground for denying someone a passport[44]. In the case, three Indians had successfully appealed the denial of them being issued passports on the basis of Section 6(1)(a) of the Passports Act. The three petitioners had all unsuccessfully applied for asylum abroad, and at least one of them had returned to India on an Emergency Certificate. When they applied for new passports after returning to India, these were denied. The 2018 judgment of the Court read (inter alia):
This Court is of the opinion, therefore, that sovereignty and integrity of the country are robust concepts that can withstand the actions of isolated individuals who may seek political asylum; their mere action in so seeking asylum- without more, by way of action tending to undermine the sovereignty, through actions that can result in disorder or violence- cannot be a ground for refusing passport to them…
[H]owever, condemnable the act of seeking political asylum in a foreign land, ipso facto… it cannot possibly be a ground to deny passport under Section 6(1)(a) of the Act.[45]
[44] ‘Cannot deny passport to citizens seeking asylum in foreign countries: Delhi HC’, Hindustan Times, 14 January 2018.
[45] PA 13/2016, C.M. APPL.593-594/2016, UNION OF INDIA & ANR vs Satnam Singh; LPA 141/2016, C.M. APPL.7891/2016 -UNION OF INDIA & ANR vs Amardip Singh; LPA 159/2016, C.M. APPL.8867/2016 - LPA 159/2016, C.M. APPL.8867/2016 UOI AND ANR vs Varinder Singh’ THE HIGH COURT OF DELHI AT NEW DELHI, 12 January 2018, p. 17.
There is also Indian judicial authority that addresses where an applicant has indicated on the Form 1 that he has applied for refugee status as to whether this would influence his ability to obtain a passport. In December 2014, Indian newspaper The Hindu reported that the High Court in Delhi had ‘held that a person’s action in the past seeking political asylum in a foreign country cannot be construed as being prejudicial to India’s sovereignty and integrity and cannot form the basis for denying him an Indian passport’. Another media report from ‘livemint’ indicates that the judgment was in relation to ‘cases where three people who had applied for political asylum in European countries while they were overseas were denied passports for five years by different passport offices on the ground that they “are likely to engage in activities prejudicial to the sovereignty and integrity of India’”. The ‘decisions were based on section 6(1)(a) of the Passports Act, 1967, which provides cases where ‘the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India” as a ground for denying passport’. The court held that while a citizen “applying for political asylum may result in bad publicity for the country’ and ‘may also be construed as being disloyal to his country’, it ‘cannot be held to be prejudicial to the sovereignty and integrity of India’. The authorities could not ‘deny passport to an Indian citizen merely because he has applied for asylum in a foreign country’[46].
[46] ‘Applying for political asylum abroad no reason for denial of passport: Delhi HC’, livemint.com, 19 December 2014,
The Tribunal was unable to locate other specific, publicly available information regarding passports being issued to Indian nationals who had applied for protection abroad.
During the hearing the Tribunal raised this issue with the solicitor for the applicants. The Tribunal directly referred to recent Indian Hight Court authorities that provided an interpretation of s 6 (1) (a) of the Passport Act. The Tribunal explained the meaning of the two decisions. The solicitor for the applicants advised the Tribunal she was aware of a recent AAT decision that made a finding the inclusion of the phrase as set out in paragraph 28 and footnote 31 above was authority for the proposition that Indian consular officials might use an Application for a Protection Visa by an Indian national in Australia as a ground for refusing to grant a passport or renew an existing passport. The Solicitor did not provide a citation to this decision and did not provide a copy of this decision to the Tribunal. The Tribunal notes prior decisions of the Tribunal are not binding on future decisions of the Tribunal. If the Indian consular officials at some time provided incorrect advice to the second applicant the correct solution is to resolve this error through processes set out in the Indian Passport Act and Passport Regulations. In this review application it is clear the highest court of India has addressed this issue and provided an interpretation as set out above.
The Tribunal is of the view that Indian authorities are unable to deny passports to Indian citizens who have sought asylum overseas by seeking to rely on Section 6(1)(a) of the Passport Act. In the absence of a passport, there is the ability to return to India on an “Emergency Certificate” which can be issued by Indian diplomatic and consular missions.[47]
[47] ‘DFAT Country Information Report - India’, Department of Foreign Affairs and Trade, 10 December 2020 paragraph 5.59.
The Tribunal is satisfied that if either review applicant applied for a new Indian passport each would have to provide the declaration[48] as outlined above[49] and there is no legal impediment or policy restriction on the issue of such new or renewed passport.
[48] See paragraph 28 and footnote 31 above.
[49] In reality it is currently the practice still employed by local passport offices (such as VFS Global in Australia) who request that Form 1 accompany the passport application which requires applicants to declare any asylum applications.
Psychologist Report
This report written by [a] Psychologist, dated 13 March 2023 was prepared for the solicitor for the applicant and addressed the following 4 questions:
·Is there any diagnosis of a psychological condition e.g. anxiety depression, bipolar etc. The psychologist report stated “I believe [the applicant wife] fulfills the criteria of PTSD, with anxiety and depression, as well as Uncomplicated bereavement (grief)”
·Would [the applicant wife] be able to cope with life and her duties as a mother in a country like Nepal with no support, no language, no health services…. The psychologist report stated “I believe she would be at significant mental health risk should [the applicant wife] be re-located to India or Nepal. Her anxiety would be at debilitating levels and would render her with limited capacity without support for her wellbeing. In short capacity would be compromised. With no language, community support or health care to assist with working through her issues, she would be left with additional trauma, of leaving behind the place of birth of her child who died, and of leaving a safe and secure environment of Australia. In short, a re-traumatisation would occur. Her current environment is safe supported by the culturally attuned diaspora from India as well as a growing number of supportive Australians.”
·Do you believe relocation to Nepal will impact the well-being and best interests of the child of the marriage? The psychologist report stated “…There is no doubt that a move to Nepal would negatively impact the best interests of her son. Children are known to be very sensitive to their parent’s mental health. If negative symptoms exacerbate, he would undoubtedly be significantly emotionally and socially impacted. He would enter an environment where he was required to learn new ways of life, in an alien language and without broader familial support.”
·What are the consequences of re-location to Nepal on [the applicant wife]’s mental well-being? The psychologist report stated “…Detrimental. There is no doubt that a move to Nepal would potentially impact negatively on the wellbeing of the whole family with no support, capacity to work, no social community or any other protective factors. Being employed, having a positive social network, and having language in common are all protective factors for well-being available in Australia for them all.”
In addition to the summary as provided in paragraph 41 above the psychologist report addressed the following: continuing psychological treatment since 2016, results of her DASS test (administered by her GP) were in the extremely severe range for depression and anxiety, reasons for elevated distress being impending immigration hearing, fear of violence if returned to India, a not uncommon practice in India of the infliction of violence or other harm on those who engaged in inter-caste marriage, similar experiences of her cousin, continuing adverse mental and physical symptoms and consequences, continuing PTSD, 13 psychological sessions until 2017, cessation of such treatment being occasioned by delay in immigration hearing until 2019, re-presentation in April 2022 for counselling, loss in a pregnancy and subsequent positive IVF conception, regular attendance at temple, worry for the future with impending hearing, fear of safety equally in Nepal and India, the return of intrusive dreams of decapitation, the increasing obsessive fixation, a feeling of disempowerment and fear that judges have over her/their future, a recently re-administered DASS showing scores in the highest possible range for depression and anxiety, the results of a completed PCL-5 (being a checklist for symptoms pertaining to a diagnosis of PTSD) leading to a fulfillment of the criteria for PTSD and grief attached to the loss of her first-born baby.

As outlined below[50] the Tribunal gives significant weight to this report.
[50] See paragraphs 49 and 50 below.
DFAT Country Information Report Nepal
The Tribunal has noted the comments of [Judge A] at paragraphs 56-79 in his 2021 judgement[51]. This decision record addresses those concerns in considerable detail. It addresses a current economic overview of Nepal inclusive of health, race and nationality issues inclusive of Indians, groups of interest with details of Dalits and the caste system, women in Nepal, internal relocation and relocation to India inclusive of the India-Nepal Treaty of Peace and Friendship: Rights of Nepalis in India and exit and entry Procedures from and into Nepal. The Tribunal provides the following extracts from this report:
[51] See paragraph 24 above.
2.12     Kathmandu, the capital, has an estimated population of 1.33 million people. Approximately 20 per cent of the population live in urban areas, a number which has grown rapidly in recent years. Inequalities exist across geographic regions and ecological zones, and between urban and rural areas. Ethnic and caste distinctions remain influential in Nepali society and the civil war period was characterised in part by a rise in identity-based politics and increased polarisation.
ECONOMIC OVERVIEW
2.13     Nepal’s economic growth has been adversely affected by political uncertainty, conflict and natural disasters. The focus on political transition and the attainment of peace has disrupted efforts to attain economic and other reforms that would improve the investment climate, stimulate growth and create more private sector jobs. The earthquake of April 2015 and the subsequent aftershocks continue to create challenges for the economy, particularly in the agriculture sector.
2.16     Nepal was struck by a major earthquake and associated aftershocks in 2015. Monsoonal flooding affected the Terai region in 2017. Many thousands of people remain displaced. The government has provided assistance schemes for displaced persons, however these often rely on the displaced person being able to prove that they owned land at the time of the disaster, which many cannot as they did not have documents or were occupying land illegally. Dalits, women and religious minorities are among the more likely groups to be unable to demonstrate previous land ownership.
Health
2.18 Article 35 of Nepal’s 2015 Constitution guarantees access to basic health services as a fundamental right. The country has a variety of public and private health-care facilities. Public health facilities include primary health-care centres and district hospitals. Private health facilities include formal hospitals, nursing homes, private practitioners (especially at clinics or private pharmacies), private medical colleges and non-governmental organisations or community-run hospitals and traditional healers, such as Ayurvedic practitioners.
2.19     Health expenditure was 5.8 per cent of GDP in 2014 (the most recent available reliable data). The private share of total health expenditure was about 60 percent in 2016, most of which was derived from out-of-pocket payments from patients and their families. Free essential health services are available via primary health care centres and district hospitals. Under this system, no charges are levied for registration, outpatient, emergency and inpatient services, or for essential drugs. Use of public health facilities by lower-caste, illiterate and marginalised people has increased since the introduction of the free essential services policy.
2.20     Nepal’s health sector is challenged by the country’s widespread poverty, limited government funding and its remote and mountainous geography which hinders the development of appropriate health infrastructure and access to health services outside of the densely populated southern plains region. Health care services are generally considered inadequate by international standards; many hospitals do not have toilets, running water, soap or reliable electricity. Hospitals in Nepal tend to be located in urban areas and provide a much wider range of medical services than rural health centres, although the quality of health care provided in large urban centres such as Kathmandu is still variable. Patients may rely on family support to access medicines and nursing care. Specialist doctors are available, including in smaller local hospitals, however those requiring specialist treatment may need to travel to access that treatment and services are constrained in the context of limited facilities across the sector.
RACE/NATIONALITY
3.1 Article 18 of the 2015 Constitution prohibits discrimination on the grounds of race, religion, caste, tribe, region and other grounds.
3.2      Nepal has at least 125 caste and ethnic groups; amongst the earliest inhabitants of the country were the Newar of the Kathmandu Valley (approximately 5 per cent of the population) and Tharu in the southern Terai region (approximately 6.6 per cent). The ancestors of the Brahmin (the Hindu priestly caste - approximately 12. 2 per cent) and Chhetri (descendants of the warrior-ruler caste – approximately 16.6 per cent) came from India and represent Nepal’s largest ethnic groups. Other groups trace their origins to Central Asia and Tibet, including the Gurung (2 per cent) and Magar (7.1 per cent) in the west, Rai and Limbu in the east (2.3 and 1.5 per cent respectively), and Sherpas and Bhotia in the north. Other significant ethnic/caste groups include the Tamang (5.8 per cent); Kami (4.8 per cent); Yadav (4 per cent); Rai (2.3 per cent); Damai/Dholii (1.8 per cent); Thakuri (1.6 per cent); Sarki (1.4 per cent); Teli (1.4 per cent); Koiri/Kushwaha (1.2 per cent); and others accounting for approximately 20 per cent of the population.
Indians
3.10     India and Nepal have encouraged the free movement of people and goods and close cooperation on matters of defence and foreign affairs since the Treaty of Peace and Friendship was signed between the two countries in 1950.
3.11     The overwhelming size of India comparative to Nepal can give rise to concerns about unchecked movement of Indians into Nepal, especially in the southern section of Nepal (the Terai) that is geographically contiguous with the Indian plains and where there are deep cultural links between Nepalis and Indians. Historical concerns about India’s political and economic interference in Nepal and instances of poor treatment of Nepalis in India have also given rise to anti-Indian sentiment amongst some Nepalis. The Indian state of Bihar has long been used by criminal organisations, political parties and separatist groups as a safe haven, adding to perceptions by some Nepalis about India’s interference in Nepal’s domestic affairs.
GROUPS OF INTEREST
Dalits and the Caste System
3.49     Nepal’s caste-based system of social organisation is guided by the Hindu Varna system – a hierarchical allocation of rights, duties and obligations based on a person’s inherited position in society. Caste is seen through the lens of ‘purity’ and is traditionally associated with particular occupations. Caste has a direct and significant impact on a person’s access to education, employment, residence and similar life opportunities.
3.50     Members of the upper castes continue to dominate in government and business, owing to historical practices that prioritised the rights and interests of upper-class elites. Discrimination on the grounds of caste is still widespread, in spite of being outlawed since 1962. The main caste groupings include the priestly Brahmans, who are at the top of the caste hierarchy with the Kshatriya, kings and warriors, beneath them; followed by the Vaishya, merchants, and the Sudra, peasants and labourers. Various groups based on occupational groups traditionally thought to be impure were known as ‘Acchut’, but now call themselves ‘Dalit’, similarly to India. Higher castes are associated with the Hills, however ‘Hill Dalits’ also continue to live in that region.
3.51     Dalits make up over 13 per cent of the total population according to the 2011 census, but Dalit groups maintain that the number is closer to 20 per cent. Considered to exist outside the Hindu caste system, Dalits are affected by ‘untouchability’, a type of shunning, and as a result have been limited to socially-sanctioned roles considered demeaning to other, higher, castes.
3.52     Constitutional protections and the 2012 Caste-Based Discrimination and Untouchability (Offence and Punishment) Act criminalise any discriminatory acts on the basis of caste, as well as customs, tradition, religion or culture, including through the media. Despite these protections, Dalits continue to face exploitation, violence and social exclusion. For example, local villagers and Hindu priests often prevent Dalits from entering temples, performing religious rites or participating in cultural and religious festivals.
3.53     Dalit groups allege that their access to aid and assistance in the wake of the 2015 earthquakes was unequal. Dalits were more likely to be living in poorly constructed dwellings on unstable land and say that reconstruction efforts have discriminated against them, providing poor quality materials and land on the outskirts of settlements.
3.54     There are no legal barriers to inter-caste marriage. The government has even provided monetary incentives of 100,000 rupees (about 1,200 Australian dollars) to each inter-caste couple married since 2009. The risk of family disapproval and associated violence depends on individual circumstances, however disapproval of such unions, which may include acts of violence, remains a possible outcome.
3.55     DFAT assesses that Dalits with some wealth and living in urban areas face a low risk of official or societal discrimination and violence. Traditionally discriminatory attitudes persist, particularly in Nepal’s rural areas where Dalits experience a high risk of societal discrimination and a moderate risk of official discrimination. Violent incidents do occur but generally less frequently than in the past.
Women
3.61 The 2015 Constitution prohibits discrimination on the basis of gender in relation to inheritance and government employment and allows for ‘positive discrimination’ to establish special opportunities in relation to education, health, employment and social security. The constitution also prohibits physical, mental, sexual and psychological violence against women and establishes the right to compensation for such violence.
3.63     The practice of ‘chaupadi’, in which women are expelled from their homes during menstruation and sometimes after childbirth, persists, despite being outlawed in 2005 and prohibited in the 2017 criminal code. The practice sees menstruating women, particularly in rural western parts of the country, affected by ‘untouchability’. These women will live in sheds that are otherwise used by cattle or specially designed for this purpose as ‘menstruation sheds’ where they may be exposed to extreme temperatures and wild animals including venomous snakes. During this time they are not allowed to access green vegetables, fruit, other plants or milk and have limited access to water. Women are expected to engage in outdoor manual labour during this time. These conditions may be life threatening. Chaupadi may be known by different names including chhue, bahirhunu, chaukulla or chaukudi, depending on the district. While mostly associated with rural areas, particularly in the west of the country, taboos about menstruation can be found across the country, including in urban areas and among women who remain displaced by the 2015 earthquake and living in temporary shelters.
3.64     Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking. Nepal’s laws contain a narrow definition of rape and have a 180-day limitation period for filing complaints. Penalties for marital rape are low and the crime is rarely reported. The 2017 criminal code set new, higher gaol sentences for rape, however DFAT is not aware of whether this provides an effective deterrent. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement though informal justice mechanisms, particularly in rural areas.
3.65     Reports of sexual assault to police are increasing as awareness of the criminal nature of that act and the police response increases. Most rapists are close family members and women from low socio-economic communities are particularly vulnerable.
3.71     Nepali women rarely receive the same educational, employment and economic opportunities as men. Girls in particular are vulnerable to early marriage which disrupts or ends their formal education. Single women and widows are particularly vulnerable. While a widowed woman is legally entitled to her late husband’s estate, many widows are unaware of their rights or unable to enforce them due to traditional attitudes and weak legal protections.
3.75     DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.
INTERNAL RELOCATION AND RELOCATION TO INDIA
5.17 The 2015 Constitution guarantees the freedom for Nepalis to move and reside in any part of Nepal. However, laws can be passed to curtail this freedom in the public interest or to maintain harmonious relations between castes, tribes, religions or communities.
5.18     Relocation is a common experience for Nepalis. Millions travel each year to other countries seeking employment and other opportunities and to seek economic opportunity. Over half of all Nepali households have at least one family member currently overseas as a migrant worker or living in Nepal as a returnee and therefore relocation is a normal, expected circumstance of life. The open border arrangement with India, as per the 1950 India-Nepal Treaty of Peace and Friendship, allows large numbers of Nepalis to travel to and from India each year or reside in India on a long-term basis. Large numbers of Nepalis also move within the country. The populations of major urban centres such as Kathmandu have increased substantially in recent decades. While Nepal is currently one of the least urbanised countries in the world, it has one of the world’s fastest rates of urbanisation, demonstrating significant internal movement.
5.19     Kathmandu in particular, but also other large urban centres such as Biratnagar and Pokhara, today reflect the significant ethnic, religious and caste diversity of Nepal and as such provide accessible opportunities for relocation within Nepal.
India-Nepal Treaty of Peace and Friendship: Rights of Nepalis in India
5.20     There is a long history of free and unregulated movement of people between India and Nepal. The Anglo-Nepal War of 1814 and the subsequent treaty of peace signed between the British East India Company and Nepal in 1816 resulted in the first delineation of the border. The British maintained an open border to facilitate the free movement of people and goods between the two countries and a number of colonial era agreements were made to this effect.
5.21     India and Nepal agreed their Treaty of Peace and Friendship in 1950 (the Treaty). At the time, the Treaty was intended to maintain the special ties between Nepal and India that had existed in the British colonial era. Nepal also had security concerns following the Communist Revolution in China in 1949.
5.22     Article 7 of the Treaty provides for each country ‘to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature’. The Treaty therefore provides for freedom of movement across borders between the two countries and equal rights in the participation in the economy and legal system. India has waived its right to reciprocity under the Treaty. Close collaboration between the two countries on foreign affairs and defence policy also occurs under the Treaty.
5.35     Indians living in Nepal are able to participate in Nepali society and enjoy the same rights as Nepalis, with the exception of being able to join the Nepali public service. The border is open and Indians may freely come and go from Nepal. DFAT is not aware of any patterns of systemic discrimination against Indians in Nepal.
Exit and Entry Procedures
5.38     The Nepal Ministry of Home Affairs Department of Immigration is responsible for conducting entry and exit checks. There are ten formal entry and exit points, of which Kathmandu airport is the only international airport. Non-Nepali citizens (not including Indians) are required to use one of these points and must present valid passports and required visas. Nepal and India have an open border that, apart from the aforementioned points, is largely unmanned, meaning Nepalis and Indians are able to cross it at any point and without a passport. The movement of Nepalis into and out of the country is thus largely undocumented. Movement through Kathmandu airport, for Nepalis and foreigners alike, is slow and cumbersome. Significant physical security checks occur.
The Tribunal has reviewed all the above material. On two prior occasions[52] the Tribunal (differently constituted) found the application for a Protection Visa was warranted on the convention grounds of political opinion and membership of a particular social group. Arising out of the second review hearing decision the FCA on appeal found the Tribunal contravened s 499 of the Act, by failing to apply Ministerial Direction No 56 and take into account in its decision the DFAT Country Information Report – Nepal dated 21 April 2016 (DFAT Report on Nepal).
[52] See paragraphs 23 and 24 above.
The applicant made only limited submissions as to the merit of his Application for a Protection Visa. He advised the Tribunal “It is submitted that the applicant’s claim in this matter has been before two Tribunals that accepted the applicant’s well-founded fear of persecution due to his inter cast marriage. It appears that the issue has always been whether the applicants can relocate to Nepal and reside there safely.”
This submission is not correct. This review application has been returned to the Tribunal by the FCA for determination according to law. This means the Tribunal is bound to consider all information available on all relevant Departmental and Tribunal files. It does not follow automatically that the Tribunal must or should accept previous findings as to merit as binding. The Tribunal treats the current review application as a de novo matter and brings an independent mind to the decision making process.
The Tribunal has examined all the material on all Departmental and Tribunal findings. There is little of substance to suggest that the prior determinations as to refugee status were not properly made and entirely justified on the basis of material contained on the relevant files.
In addition the Tribunal has the advantage of having reviewed a current psychological report. This report is a report of substance. The Tribunal has provided excerpts from the report as relevant in addition to providing a detailed summary of the findings. The psychological report is consistent with the various written submissions provided to the Department and Tribunal over time. The report addressed 4 critical issues as follows:
·Was there any diagnosis of a psychological condition such as anxiety, depression stress with a diagnosis of PTSD primarily caused by the long march through the visa system.
·The ability of the second applicant to cope in Nepal without support, language familiarity, the absence of health services and community support with the conclusion that re-traumatisation would occur and her current environment is safe supported by the culturally attuned diaspora from India as well as a growing number of supportive Australians.
·Would relocation to Nepal impact the well-being and best interests of the child of the marriage with the finding that there is no doubt that a move to Nepal would negatively impact the best interests of her son.
·The consequences of re-location to Nepal for the second applicant being detrimental with no doubt that a move to Nepal would potentially impact negatively on the wellbeing of the whole family with no support, capacity to work, no social community or any other protective factors. Being employed, having a positive social network, and having language in common are all protective factors for well-being available in Australia for them all.

The psychological report addresses the mental history of the second applicant. It outlines her stress, the repeated re-emergence of major mental health issues, it provides both context and framework for its own findings and it makes reference to the customary tools used by psychologists to check and verify information provided by patients seeking assistance. Importantly it reasons to a conclusion consistent with evidence available to the Tribunal over decades on both Departmental and Tribunal files. The Tribunal gives this report significant weight.
The Tribunal has reviewed the DFAT Report into Nepal at length. The Tribunal has provided significant excerpts and paragraphs references to relevant detail contained in the report.
The Tribunal has given weight to the various findings contained in the DFAT Report as to ethnic and caste distinctions, health care standards that are considered inadequate and particularly relevant to a person suffering from ongoing mental health issues, the fact that ethnic divisions remain sensitive in Nepal, the unchecked movement of Indians into Nepal, anti-Indian sentiment on the part of some Nepalis, the significance of caste in Nepal with the finding that discrimination on the basis of caste is still widespread, the practice of downgrading one’s caste as a result of inter-caste marriage still exists in remote and rural areas, inter-caste couples face the continuing reality of disapproval, false accusations of criminal activity, physical attacks and family and social humiliation, Nepalese women face a large range of active and harmful discriminatory measures and DFAT assesses women’s fear and experience of sexual harassment and violence as real.
The Tribunal has considered all of the applicants’ circumstances and in particular their mental health issues (as outlined in the more recent psychological report as discussed) and likely access to treatment in Nepal to avoid the localised threat of serious harm that they face in Punjab. Their conditions are described as severe, it is not clear how easy it will be for them to access treatment in any place outside of their home state or in Nepal, and they will not have family or community support in Nepal. In fact the DFAT Report into Nepal suggests the opposite. They will face localised, community, caste and systemic discrimination in terms of possible employment, a home, access to appropriate medical and mental health treatments and opportunity to advance the immediate needs of their family inclusive of those of a young child.
In his Application for a Protection Visa the applicant referred to the fact he and his wife are from different caste backgrounds, most of his relatives objected to their marriage, they abused and threatened him, his family is very active in politics, he and his family were active members of the same party, they had many political enemies who threatened and used violence against them, the police have never helped him and his family his family told him it is not safe for him to stay in India.
In evidence to the Tribunal the applicant advised as follows:
1.He had been continuously resident in Australia since 2009 and had not returned to his home country. He is married and has one [age] year old son. This child was conceived through IVF.
2.He was unlawful overstay for a lengthy period of time prior to lodging an Application for a Protection Visa in 20913. This period of unlawful overstay was not his fault. He was not aware his prior visa had expired. Nobody told him. His Migration Agent (MA) at the time had not informed his of the expiry of his visa. He did not ever receive any communication from the Department as to the expiry of his visa. He was not aware his last prior visa had an expiry date. It was all the fault of his then MA. The Tribunal referred to various documents on the many files that make up this review application and the applicant repeatedly disavowed any knowledge of those documents that addressed his then visa expiry.
3.He never intended seeking permanent residence in Australia until immediately prior to lodging his Application for a Protection Visa. He never discussed this option with his wife.
4.He does not wish to return to India because he fears harm and violence from an [age] year old uncle and his family of [number] daughters (no sons) who forcibly took possession of a piece of land owned by his father. This land has been in the family for generations and has passed down the male line from grandfather to brothers, to sons, to grandsons to his father prior to being forcibly taken in a ‘land grab’ many years ago (‘more than 50 years ago’) by his uncle.
5.His uncle is an influential man, involved in politics and has the ear of the court system and the police department. Police, judges and the court system are totally corrupt in India and officials in all of these institutions are ready willing and able to receive bribes.
6.The applicant pressed the two limbs of his claim being the fact he married a woman from a lower caste and the child of that marriage is ‘impure’ and the continuation of an intra-family land dispute that has been going on for at least 50 years as the income from the land is significant.
7.He met his wife through the agency of his sister as both girls attended the same high school and were friends. He married in the Sikh temple in his village. The marriage was attended by many members of his own family and his wife’s family plus hundreds of persons who attend temple for various purposes. It was and is common knowledge in his immediate family that his wife comes from a lower caste. He married his wife fully knowing she came from a lower caste and that in the eyes of many, both family and non-family this was a most unwise decision. No person in his family had ever married out of caste.
8.He does not wish to re-locate to Nepal because it is a different country, he is not familiar with the language, he does not own a home in that country, he does not have any employment on offer in that country and people from both India and Nepal readily cross between the two countries.
9.He believes threats of violence from his uncle are still extant after so many years because his sister and cousins have told him not tot return to India as his uncle still bears anger in his heart.
10.He thought he had applied to renew his visa post September 2021, he could not recall the location of the Indian consulate in Melbourne, he attended the consulate many years ago, then some lengthy time ago, he could not recall the exact month or yea, he canno0t remember if the visit to the consulate was 1.5 years ago or 2 years ago or more than that and he was told by a consular official he could not apply for a visa.
11.He works as a subcontractor [in] Melbourne and ears about [amount] per annum. This is sufficient to provide for his family in Melbourne.
12.His only sister lives in India. He does not know the whereabouts of his brother. His parents have passed as has his grandparents. Apart from his immediate family he does not have any family in Australia.
13.He is an observant Sikh. He attends temple every week. Later he advised he had not attended temple for 2 or 3 months. Still later he advised he attends temple regularly as part of his community obligations.
14.The applicant does not have any support from family members in India. All his relatives in India support his uncle in the claim to title to the land in dispute.
In evidence to the Tribunal the second applicant advised as follows:
1.She is married to the first applicant and they have a [son] conceived through IVF after many difficulties. She is not able to conceive through natural methods. She has retained her eggs but is not yet physically able to go through another IVF process. Her son is the most important person in her life and she does not want her son exposed to the hatreds and violence of her husband’s family in India or Nepal.
2.Her mother warned her against marrying out of caste prior to her marriage. She did not take heed of the warnings. She now understands the significance of the warnings given to her by her mother.
3.The day prior to her departure for Australia she was visiting her mother and saying final farewells. An organised angry mob gathered around her and her husband and threatened to attack her because of the inter caste marriage. The threat of violence was real. The violence was prevented because of the intervention of some passers-by.
4.On the plane to Australia she told her husband she would never return to India and she intended to remain permanently in Australia. Her husband agreed with her and from that time there has been a pact between them not to return to India and remain in Australia. As the first applicant had given contradictory evidence on this point the Tribunal again asked the second applicant to explain when she decided to seek permanent residence in Australia. The second applicant confirmed her prior evidence. She fears for her life if forced to return to India or Nepal.
5.She has not returned to India post arrival in Australia, will never voluntarily return to India, the main issue in dispute is her inter caste marriage and the associated threats of violence from her husband’s family, In Australia few are aware of her inter caste marriage because within the Sikh community in Melbourne she does not discuss private or family matters despite the large gossip train in Melbourne connected to family in the home country, Sikhs in Melbourne would be aware of he lowered caste status because of her choice of language and inflexion in the pronunciation of particular words and the older generation of Sikhs have different traditions of honour to her and her family.
6.After the melee outside her mother’s home she was in a rush to get out of Melbourne. She will never return to India. Her husband agrees with her.
7.She is a full time mother and looks after her son. Her husband earns sufficient income to provide for the family in Australia.
8.The message from her husband’s family in India (sister and cousins) is not to return to India as the uncle still pledges violence.
9.Her marriage and her family are the most important things in her life. She cannot bear the thought of losing her son or husband.
10.She attended the Indian consulate in September [2022]. She spoke to a male consular official. On a prior occasion she had attempted to attend the consular building but it was closed. The consular official wanted to know she had taken so long to apply to renew her passport. The consular official advised her she could not get a new passport until she provided proof of withdrawal of her application for a protection visa and wrote a letter to the consular office that India was a safe country. She attended this meeting at the Indian consul on her own. Her husband did not accompany her.
11.Her husband had never advised her of his anytime attendance at the Indian consulate building. Her husband would always tell her of this type of detail.
12.She does not wish to relocate to Nepal as it is little different to India. There is regular passage of people between the 2 countries. In Nepal people would be aware of her background and lower caste standing. Her husband’s family could easily access her husband even in Nepal. They do not have family, a home, a job or any understanding the language in Nepal. They do not know a single person in Nepal.
13.She agreed the principal thrust of her psychological report was her fear of leaving Australia.
At the conclusion of the evidence the Tribunal shared with the second applicant and the solicitor its assessment of the utility of the evidence to date. This assessment was indicative and preliminary. The Tribunal indicated its intention to recall the first applicant and ask him to address the many inconsistencies in his evidence to that of his wife. At this stage the solicitor for the applicant intervened and asked to address the Tribunal. The Tribunal agreed to this intervention.
The solicitor for the applicant advised the Tribunal that she had acted for the family for many years and through all superior court proceedings and hearings. She explained the first applicant mumbled a lot, had surgical operations as a child to address this physical problem associate with mumbling, was often incoherent, was mostly forgetful, regularly confused dates, times and events, forgot to provide detail or responses and found it almost impossible to give instructions. She reminded the Tribunal of her obligations as a solicitor. She advised that almost without exception she, as solicitor, met with the two applicants together and strongly relied upon instructions from the second applicant to present a coherent submission to superior courts and the Tribunal. She acknowledged to the Tribunal the many faults and shortcomings in the evidence of the first applicant.
The second applicant remained at the review table whilst the solicitor made the submission as outlined in paragraph 58 above. Asked to comment the second applicant confirmed the accuracy of the submissions of the solicitor and advised she did not know why her husband had said many of the things as outlined his evidence. She confirmed to the Tribunal again she and her husband had agreed on the plane trip to Australia to seek permanent residence in this country. She confirmed again to the Tribunal she had attended the Indian consular building on her own and her husband had not accompanied her to this meeting.
The Tribunal has considered this submission. The explanation provided by the solicitor provides context. The applicant’s evidence was often incoherent, sometimes disingenuous, on two major points unbelievable because of conflicting evidence, generally confused as to names, times and dates and on many occasions lacked specifics. The Tribunal gives little weight to the evidence of the applicant. The evidence of the second applicant was delivered in a clear and forthright manner. It was exact and direct and the applicant provided contextual and background detail in explaining events she had witnessed or participated in prior to her marriage, after the time of her marriage and prior to arriving in Australia. The Tribunal gives significant weight to the evidence of the second applicant.
Where the evidence of the applicant and the second applicant is in conflict the Tribunal accepts the evidence of the second applicant.
In previous review hearings the applicant referred to initial problems they would face if forced to re-locate to Nepal. In this review hearing the applicant and second applicant explained at length their fears of being forced to re-locate to Nepal. This evidence is summarised above in paragraphs 55 and 56. This evidence is consistent with the various extracts from the DFAT Report into Nepal also noted above at paragraph 44. In particular the Tribunal notes the relative ease of access and entry citizens of both Nepal and India have to each other’s country and how this has been formalised by the governments of both countries. It is not a stretch of the imagination to foresee the likelihood of aggrieved family members seeking to inflict harm on either or both of the applicants for reason of inappropriate inter caste marriage or perhaps sheer avarice relating to title to valuable land. The Tribunal is of the view these problems are not just initial problems but are more likely to remain ongoing because the root of the problems is discrimination based and systemic focused as outlined above. These problems are not transitory or minor.
The applicants have never been to Nepal, they have no desire to go to Nepal, they do not speak, read or write Nepali, and they do not own real estate in that country and Nepal is a developing country. The applicants emphasised all of these points at both the RRT and the Tribunal hearings and in evidence to the current review hearing. The Tribunal has given significant weight to the DFAT Report into Nepal. The Tribunal is satisfied that these issues in addition to the DFAT Report findings – individually, collectively or considered together with all the applicants other individual circumstances – would amount to serious or significant harm.
The Tribunal is not convinced the claim of future violence against either or both of the applicants arising out of dispute to title to a parcel of land is real. There is insufficient formal documentation on any of the relevant files to show the applicant has any interest in any land anywhere in India. The applicant’s evidence as to an intra family land dispute going back over at least 50 years and involving many forbears over many generations was general and lacked any real detail. A land registration system enforceable in the courts does exist in India. The Tribunal gives no weight to generalised assertions as to corruption in the courts or the police force or the exercise of undue influence by relatives. The applicant did not provide any current letters, documents or emails from his own sister and cousins as to the detail of this alleged land dispute. The applicant did not provide a statement from a solicitor in India that might confirm some of the detail raised in various allegations in different review hearings.
The Tribunal paid close attention to the evidence of the second applicant as to a past example of organised mob violence against her because she was party to an inappropriate marriage: she coming from a lower caste. Her evidence was credible. It was consistent with available CI In India. She provided considerable detail as to methods she has pursued to protect the integrity of her family unit in Australia from those who might seek to case harm because of her inter caste marriage. The second applicant did not hide from the fact that, in essence, she fled India because her husband’s family planned and carried out an attack on her in her mother’s village. On the plane to Australia she advised her husband she would never return to India. To date she has carried out this undertaking.
Having carefully assessed all the available evidence before it, and the applicants’ claims both individually and cumulatively, the Tribunal finds that the applicants do have a well-founded fear of being persecuted for a Convention reason in Nepal (s.36(4)(a)).
On the totality of the evidence, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants availing themselves of the right in s.36(3), there would be a real risk of either of the applicants suffering significant harm in Nepal (s.36(4)(b)).
The Tribunal has considered if the applicants faces a real risk of significant harm upon their return to India for reasons of political opinion and membership of a particular social group and in particular caste discrimination and violence based upon inter marriage between differing castes.
Having considered the evidence provided by the second applicant and its essential corroboration in the psychologist’s report and the available country information for the reasons detailed above, the Tribunal does accept the applicant’s claims and finds that there is a real risk he and the second applicant will suffer significant harm.
The Tribunal does not propose to force the applicant to return to India or Nepal because the Tribunal is of the view the applicants have a well-rounded fear of persecution for reason of membership of a particular social group relating to being a member of a lower caste who married into a higher caste and whose son is regarded as being an impure outcome of that marriage.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk they will suffer significant harm as required by s36(2)(a).

Having considered the circumstances of the applicant, both individually and cumulatively, the Tribunal finds that the applicants will face a real chance of serious harm for a Convention reason, if they returns to their home state in the Punjab, now and into the foreseeable future
CONCLUSION
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and 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 following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Mark Bishop
Senior Member

[2023] AATA 2228

19 April 2023

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