2204819 (Refugee) - [2024] AATA 1579

2204819 (Refugee) [2024] AATA 1579 (31 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Michaela Rhode
CASE NUMBER:  2204819
COUNTRY OF REFERENCE:                   India
MEMBER:Alison Murphy
DATE:31 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 31 January 2024 at 12:53pm
CATCHWORDS
REFUGEE – protection visa – India – fear of harm by former husband and his family – arranged marriage and dowry payment – mistreated by husband’s family after his return to Australia, and abused by him in Australia – intervention order and no further contact – husband instigated divorce and legal proceedings in home country – intention to apply for return of dowry – divorced woman with no support from own family – mental health and treatment – country information – effective state protection and relocation not available – treaty right to enter and reside in third country – all possible steps not taken – passport expired and no attempt to renew – real chance of serious harm there – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), 5LA, 36(2)(a), (2A), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
SZMWQ v MIAC (2010) 187 FCR
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 26 February 2019. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person owed protection by Australia.
The applicant appeared before the Tribunal on 28 November 2023 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review.
The applicant was represented in relation to the review.
The issue in this case is whether the applicant meets the criteria set out in either of s 36(2)(a) or s 36(2)(aa). A summary of the relevant law is attached at Attachment A. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2204819 (Refugee)

Details

AGLC: 2204819 (Refugee) [2024] AATA 1579
Case: [2024] AATA 1579
Decision Date: 31 January 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an Indian citizen who feared harm from her former husband and his family upon return to India. The applicant alleged that her marriage was arranged, that she did not wish to marry, and that her parents paid a substantial dowry. Following her arrival in Australia, her husband initiated divorce and legal proceedings in India with the intention of reclaiming the dowry. The applicant claimed she would not receive support from her own family, who considered her a source of shame, and feared she would be subjected to violence, kidnapping, rape, or death as a single woman in India. The decision was made by Alison Murphy.

The court was required to determine whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically whether she would face harm or death if returned to India due to her status as a divorced woman without family support, and whether effective state protection or relocation would be available to her. The court also needed to consider if the applicant had taken all possible steps to avoid such harm, including renewing her expired passport.

The court reasoned that the applicant's fear of harm from her former husband and his family was credible, particularly given the dowry dispute and the initiation of legal proceedings in India. It was accepted that the applicant's own family would not support her and that she faced significant risks as a single woman in India, supported by country information regarding arranged marriages, dowry practices, and the societal difficulties faced by single women. The court found that the applicant had not taken all possible steps to avoid harm, specifically by failing to renew her passport, and that the availability of effective state protection and relocation options required further consideration.

Consequently, the court remitted the decision for reconsideration, indicating that the applicant's claims warranted further assessment in light of the established risks and the need to fully explore the availability of protection and relocation.

Orders

Orders of the court

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Background

Background to the litigation

The applicant travelled to Australia on an apparently genuine Indian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of India and has been assessed on that basis by the Department. The Tribunal finds she is an Indian citizen and has assessed her claims against India as the country of nationality and the receiving country.The applicant’s personal background The applicant is a [Age]-year-old woman from Chennai in Tamil Nadu, India. She is of Telugu ethnicity and Hindu religion. She grew up in a household comprising her parents and one brother and they remain living in the family home in Chennai along with her brother’s wife and child. The applicant completed high school in [Year], commencing a degree in [Subject] which she did not complete. Between 2009 and 2018, she undertook a range of jobs in the [work sector] in Chennai. She continued to live in her parents’ home until her marriage. The applicant married her former husband [in] August 2018. Immediately after her marriage the applicant moved in with her husband’s family for several months before arriving in Australia [in] December 2018 as the holder of a visitor visa granted to her on 23 October 2018. The Tribunal accepts the above matters to be true.Claims for protection In essence the applicant claims that if forced to return to India, she will be harmed or killed by her former husband and his family. She claims her own family will not support her as she has brought shame upon them and she is afraid that as a single Telugu woman she would be beaten, kidnapped, raped and/ or killed.The circumstances of the applicant’s marriage The Tribunal accepts the applicant’s marriage was arranged by her parents through a marriage broker and that she did not wish to marry but had no choice due to family expectations. She met her husband for the first time only a few days before the wedding and went to live with his family immediately after the wedding. Her parents paid her husband’s family a dowry comprising approximately $60,000 cash as well as an amount of gold sovereign. This comprised most of her parents’ savings as well as the gold and jewellery belonging to her aunt, grandmothers and mother. She gave evidence that traditionally the dowry payment was intended to compensate her husband’s family for feeding, clothing and housing the applicant during her lifetime and keeping her happy. In accepting the applicant’s evidence the Tribunal has had regard to country information indicating that arranged marriages continue to account for the majority of marriages across India and that families, rather than individuals, are the primary decision makers in relation to marriage.[1] As well, being a single woman in India is difficult and uncommon and a woman who is uninterested in marriage would likely come under significant pressure from her family to marry a husband of her parents’ choosing.[2] The payment of dowry by the bride’s family remains common despite laws rendering it illegal.[3][1] DFAT 2015 DFAT Country Information Report India 15 July at 3.49 – 3.56; 'What the data tells us about love and marriage in India”, British Broadcasting Corporation (BBC), 9 December 2021, 20211215102229; 'IND106276.E India: Situation of inter-religious and inter-caste couples, including treatment by society and authorities; situation of children from such marriages (2017-May 2019)', Immigration and Refugee Board of Canada (IRB), 16 May 2019, 20200310144618[2] DFAT 2023 DFAT Country Information Report India 29 September at 3.132[3] DFAT 2023 DFAT Country Information Report India 29 September at 3.123

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCECountry of nationality The applicant travelled to Australia on an apparently genuine Indian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of India and has been assessed on that basis by the Department. The Tribunal finds she is an Indian citizen and has assessed her claims against India as the country of nationality and the receiving country.The applicant’s personal background The applicant is a [Age]-year-old woman from Chennai in Tamil Nadu, India. She is of Telugu ethnicity and Hindu religion. She grew up in a household comprising her parents and one brother and they remain living in the family home in Chennai along with her brother’s wife and child. The applicant completed high school in [Year], commencing a degree in [Subject] which she did not complete. Between 2009 and 2018, she undertook a range of jobs in the [work sector] in Chennai. She continued to live in her parents’ home until her marriage. The applicant married her former husband [in] August 2018. Immediately after her marriage the applicant moved in with her husband’s family for several months before arriving in Australia [in] December 2018 as the holder of a visitor visa granted to her on 23 October 2018. The Tribunal accepts the above matters to be true.Claims for protection In essence the applicant claims that if forced to return to India, she will be harmed or killed by her former husband and his family. She claims her own family will not support her as she has brought shame upon them and she is afraid that as a single Telugu woman she would be beaten, kidnapped, raped and/ or killed.The circumstances of the applicant’s marriage The Tribunal accepts the applicant’s marriage was arranged by her parents through a marriage broker and that she did not wish to marry but had no choice due to family expectations. She met her husband for the first time only a few days before the wedding and went to live with his family immediately after the wedding. Her parents paid her husband’s family a dowry comprising approximately $60,000 cash as well as an amount of gold sovereign. This comprised most of her parents’ savings as well as the gold and jewellery belonging to her aunt, grandmothers and mother. She gave evidence that traditionally the dowry payment was intended to compensate her husband’s family for feeding, clothing and housing the applicant during her lifetime and keeping her happy. In accepting the applicant’s evidence the Tribunal has had regard to country information indicating that arranged marriages continue to account for the majority of marriages across India and that families, rather than individuals, are the primary decision makers in relation to marriage.[1] As well, being a single woman in India is difficult and uncommon and a woman who is uninterested in marriage would likely come under significant pressure from her family to marry a husband of her parents’ choosing.[2] The payment of dowry by the bride’s family remains common despite laws rendering it illegal.[3][1] DFAT 2015 DFAT Country Information Report India 15 July at 3.49 – 3.56; 'What the data tells us about love and marriage in India”, British Broadcasting Corporation (BBC), 9 December 2021, 20211215102229; 'IND106276.E India: Situation of inter-religious and inter-caste couples, including treatment by society and authorities; situation of children from such marriages (2017-May 2019)', Immigration and Refugee Board of Canada (IRB), 16 May 2019, 20200310144618[2] DFAT 2023 DFAT Country Information Report India 29 September at 3.132[3] DFAT 2023 DFAT Country Information Report India 29 September at 3.123

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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