2204819 (Refugee)

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 for protection status determination purposes, to the extent that they are relevant to the decision under consideration. As at the date of the Tribunal’s decision, the relevant report is DFAT Country Information Report India dated 29 September 2023.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country 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
The Tribunal accepts that very soon after moving into her in-laws’ home, the applicant realised that her husband and his family had entered into the marriage solely or at least primarily to secure the payment of the dowry. DFAT reports that the traditional practice of dowry leads to disputes such as dowry-related harassment and deaths, including women murdered or driven to suicide in response to an attempt to extort a higher dowry.[4]
[4] DFAT 2023 DFAT Country Information Report India 29 September at 3.123
The applicant’s husband’s movement records confirm that he left India to return to Australia only a few days after the wedding. The applicant remained living in a room in his parents’ home in a small village while she waited for a visa to join her husband in Australia. She described her in-laws as treating her coldly, living in a separate part of the house and leaving her alone in her room each morning and locking the rest of the house until they returned in the evening. She was aware that they were angry because her parents had been slow to pay part of the dowry. They didn’t share their meals with her and she had to cook for herself, often eating only rice with salt. She was told not to talk to the neighbours or leave the house alone. She discovered only after moving in that her husband had another sister he had never mentioned who was mentally ill and who was largely confined to her room. The applicant was not permitted to have a phone or a computer once she moved into her husband’s home.
The Tribunal accepts that the applicant’s husband stopped calling her or taking her calls about a week after he returned to Australia. Although she asked her in-laws about progress on her visa to Australia, they did not give her any information or permit her to speak to her husband. Towards the end of November she was allowed to return to her parents’ house for a visit. She went into the Australian Embassy in Chennai to enquire about her visa and was told it had been granted some weeks earlier. She tried to contact her husband by phone and email but he didn’t respond. She sold some jewellery and bought a one-way ticket to Australia, arriving about seven weeks after the visa was granted to her.
On arrival at Tullamarine Airport, she had no Australian SIM card and no money. She asked the airport police how to get to the address printed on the visa. The police tried calling her husband but he answered and then hung up. Another passenger helped her travel to her husband’s address and when she arrived at about 10:00am the house was locked. She waited outside the house until people returned about 1:00am. They told the applicant her husband had left the property a month earlier, but they were able to contact him by phone and he arrived to collect her about 1:30am. He took her to the house he was then living in and questioned her angrily about how she had travelled to Australia. He made her sleep on the kitchen floor and gave her only milk and bread to eat.
The Tribunal accepts that during the four or five weeks that the applicant lived with her husband he abused her physically, sexually and emotionally. She had no money, phone or contacts in Melbourne and he often locked her in the house while he was out. In January 2019, approximately one month after her arrival in Australia, a neighbour came to the house after a particularly violent incident in which the applicant was beaten and threatened with a knife. The applicant was reluctant to call the police, but the neighbour told her that she would die if she did not get help. The neighbour told the applicant that she should switch the light on and off if she needed help and the neighbour would come over. Two days later after another violent argument the applicant did so, with the result that the neighbour called the police. The police attended the home and took her husband to the station for questioning and arranged crisis accommodation for the applicant, advising her that she needed to leave the house immediately.
[In] January 2019 an intervention order was made by the Magistrates’ Court against the applicant’s former husband naming the applicant as the protected person and a copy of that order is contained on the Departmental file. That order indicates that he was present in court when the order was made. The applicant has consistently stated that she has had no contact with her former husband since that date.
After leaving her former husband’s home, the applicant received supported accommodation and other assistance from family violence services including [Service providers]. At the time of the Tribunal hearing she had obtained private rental accommodation and full time work in the [work sector] with the assistance of those agencies.
Legal proceedings in India
It is not in dispute that the applicant’s husband commenced divorce proceedings in India in 2019.
The Tribunal accepts that in approximately June 2019, the applicant’s former husband’s father petitioned the court in Tamil Nadu to enable the police to treat the applicant as a missing person and provide her whereabouts to her father-in-law. The applicant became aware of this when two police officers attended her parents’ home in Chennai seeking information about her. The applicant contacted them by phone and they asked her to provide details of her passport, visa and contact details in Australia. The applicant was confused about why they wanted this information but was advised by a lawyer friend that it was possible they were trying to build a case that would allow her husband to divorce her in India without her involvement.
The applicant’s former husband commenced divorce proceedings later in 2019 and the applicant’s evidence is that her parents hired a lawyer and attended court on her behalf on several occasions over the next 18 months. The applicant wanted the divorce to proceed on the condition that the dowry was returned, but her parents were opposed to the divorce. During this period her former husband’s parents rang the applicant’s parents on several occasions encouraging them to force the applicant to return to India. The applicant refused to do so, knowing that her visa status would not allow her to re-enter Australia if she departed. However she wished to participate in the divorce proceedings as her husband was falsely alleging that he had suffered cruelty during the marriage and because divorce proceedings are commonly an opportunity for families to negotiate the return of the dowry. While she very much wanted to be divorced, she would not consent to the divorce until those matters were resolved.
The delegate found that the divorce was finalised in July 2021, however the Tribunal considers that to be incorrect. Rather the court documents produced to the Department indicate that the initial case was dismissed by the court in July 2021 for want of prosecution. The Tribunal accepts the applicant’s evidence that this was because COVID-19 restrictions prevented her husband from travelling to India to attend court and the court would not make the order in the absence of both parties.
By the time of the Tribunal hearing, the divorce had been finalised. The divorce order indicates that the second divorce petition was filed by the applicant’s former husband on 25 July 2022 and that the final hearing took place on 25 January 2023 in the absence of the applicant. It records that the petition was allowed and the divorce granted to the applicant’s former husband on the ground of cruelty and that no evidence or exhibits were produced by the applicant. The Tribunal accepts the divorce order to be genuine.
The applicant presented as a credible witness who is deeply hurt by her former husband’s behaviour; the loss of her family’s support and their loss of financial security and the injustice of being named as the abuser in the divorce. The Tribunal accepts that if returned to India, the applicant will seek to re-open the divorce to challenge the ground on which it was granted (being cruelty by the applicant towards her former husband) and to seek the return of the dowry paid by her parents. Section 28 of the Hindu Marriage Act allows a divorce order to be appealed, provided the appeal is not solely on the subject of costs. It states that it is preferred that such an appeal be lodged within 90 days, but does not discount the possibility that an appeal might be entertained outside that time period. Even if the applicant is ultimately unable or unwilling to re-open the divorce order made in her absence, the Tribunal accepts she will agitate for the return of the dowry from her former husband.
The applicant’s mental health
The Tribunal accepts the medical evidence indicating the applicant lives with significant mental health issues, including PTSD, anxiety and depression. She has spent time in a Prevention and Recovery Unit due to suicidality and concerns for her safety and has been treated with medication and counselling. She has at times been engaged with a psychiatrist and psychologist under a Mental Health Treatment Plan, but at the time of the Tribunal hearing she was not currently engaged with a psychologist, her regular psychologist having left the practice.
The Tribunal notes the applicant’s detailed documentary evidence concerning a relationship she had with a man she met in Australia in 2019, which is described as being both violent and exploitative. At hearing the applicant confirmed that she did not fear harm from this man if she returned to India as he lives in Australia with his family and runs a business here. However the Tribunal accepts that relationship had a significant negative impact on her mental health.
Risk of harm on return
In assessing the applicant’s claims to fear harm in India, the Tribunal needs to consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward-looking test.
The applicant fears that if returned to India, she will be harmed by her former husband and his family who are angry that she left her husband and reported him to the police, which is considered disgraceful in India. While she does not wish to resume the marriage, she intends to challenge the divorce to try and have the dowry returned because she believes she did nothing wrong in the marriage and she should not be responsible for the divorce. She claims that her family will not support or accept responsibility for her and that she will face harm throughout India as a divorced woman without family protection.
The criterion in s 5J(1)(a) contains a subjective requirement that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Country information indicates that India is a patriarchal society in which traditional practices and the low status of women in Indian society make them vulnerable to domestic and gender-based violence as well as restricting their participation in the workforce and community. DFAT reports that the illegal yet common tradition of a bride’s family needing to pay a dowry can include female infanticide, sex-selective abortions and dowry-related harassment and deaths. As well honour crime occur when families feel the honour of the family is jeopardised, including when women seek to divorce or separate from an abusive husband. DFAT reports that such honour crimes can occur regardless of age, religion, social status, wealth or other factors.[5] Data collected by the Indian government records 6753 dowry deaths in 2021 (latest available).[6]
[5] ‘DFAT, DFAT Country Information Report: India 29 September 2023 at 3.123 – 3.124
[6] Home | Open Government Data (OGD) Platform India
The Tribunal accepts that if returned to India, the applicant will return to her home area of Chennai where she will seek to re-open the divorce and have the dowry returned. Having accepted that the applicant’s former husband has been extremely violent towards her in the past, the Tribunal considers that further challenges by the applicant to his reputation and his family’s honour may provoke similar attacks from him or his family in the future. While he is generally resident in Australia, his movement records indicate he departs Australia regularly and the Tribunal accepts that he likely returns to India to visit his parents on at least some of those occasions noting that he returned to India on several occasions for hearings relating to the divorce.
The Tribunal also accepts that the applicant’s parents and brother will not provide her with accommodation or support; that they believe they have fulfilled their obligations to her by paying her dowry and that they consider she should have remained married to her former husband even though he was violent towards her. The applicant’s evidence in this regard is consistent with DFAT’s advice that divorce can be financially and socially devastating for women, particularly those whose husbands initiate the divorce and provide no income support. DFAT notes that such women would be unable to rely on the support of their biological family which is the traditional form of social welfare in India.[7]
[7] DFAT DFAT Country Information Report India 29 September 2023 at 3.133

The history of family violence and dowry-related abuse, together with the applicant’s intention to seek the return of the dowry paid by her parents through the courts, cause the Tribunal to accept there to be a real chance the applicant’s former husband will seek to harm her if she returns to her home area of Chennai, now or in the reasonably foreseeable future. The Tribunal is satisfied that the nature of the harm her former husband has perpetrated upon the applicant in the past is an indicator of the harm he may cause to her in the future and that it rises to the level of serious harm for the purposes of s 5J(5).
Is the harm feared for a Convention reason?
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
DFAT advises that it is the patriarchal nature of Indian society, traditional practices and the low status of women in Indian society that make them vulnerable to domestic and gender-based violence including female infanticide, sex-selective abortions and dowry-related harassment and deaths. Overall DFAT assesses that women experience a moderate risk of sexual harassment and assault in their day-to-day lives.[8]
[8] DFAT 2023 DFAT Country Information Report India 29 September at 3.121 – 3.124
Similarly, the UK Home Office reports that gender-based violence against women and girls in India is widespread and those more at risk of serious harm include those who are seen to have transgressed social, cultural and religious norms, or are single and living alone. Practices such as forced or child marriages, dowry-related deaths, domestic violence, rape, acid attacks, honour killings, unsafe gender-selective abortions, sexual harassment, coerced and involuntary sterilisation and accusations of witchcraft continue despite laws prohibiting them.[9]
[9] United Kingdom Home Office, County Police and Information Note India: Women fearing gender-based violence (November 2022) at 2.4.6 and 2.4.8
The US Department of State reports that while the law criminalises rape in some circumstances, marital rape is not a crime where the woman is older than 15. Law enforcement and legal recourse for rape survivors is inadequate, and police sometimes worked to reconcile rape survivors and their attackers and at times encourage women rape survivors to marry their attackers.[10]
[10] US Department of State, 2022 Country Reports on Human Rights Practices: India
It is reported that in the applicant’s home state of Tamil Nadu, generally considered a progressive state because of its achievements against various human rights indicators, 44.7% of married women experience physical or sexual violence and 81% of those women never seek help or disclose that violence. Of those that sought help, only 2.8% went to the police while more than 80% sought help from their families.[11]
[11] Vasanth, Pon ‘No safe haven for women at home’ 16 April 2022, The Hindu Times <
>
India is reported to have the highest number of acid attacks on women globally, with that crime still on the rise despite actions by the government and the courts. The increase is attributed to ‘the patriarchal ideology that is prevalent in India and to India’s inadequate legal system, which does not deliver efficient remedies to the victim’.[12]
[12] Vidhik Kumar, ‘Acid Attacks in India: A Socio-Legal Report’ (2021) 6(1) Dignity: A Journal on Sexual Exploitation and Violence 1, 1
The Australian courts have recognised the violence suffered by the applicant at the hands of her former husband as family violence. The Australian Institute of Judicial Administration identifies family violence as a pattern of violent and abusive behaviours that seeks to isolate, degrade, exploit and control victims. While family violence can affect a person irrespective of gender, it is widely acknowledged that the overwhelming majority of these behaviours are perpetrated by men against women, and that the most significant risk factor for experiencing family violence is being a woman.[13]
[13] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration, University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 at 3.1 Contents - National Domestic and Family Violence Bench Book (aija.org.au)
For these reasons the Tribunal accepts the violence perpetrated upon the applicant by her former husband is gender-based and that it is directed at her for the essential and significant reasons of her gender and her membership of the particular social group ‘women in India’. The Tribunal considers that the group of ‘women in India’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution.
Effective state protection
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
Country information indicates that state protection is not effective for women seeking protection from gender violence in India. Rather DFAT reports that despite laws intended to prevent crimes against women, including The Protection of Women from Domestic Violence Act, 2005 (the PWDVA), in practice cultural factors prevent women from reporting violence and police may not be effective in proving state protection. Police commonly refuse to register cases or investigate claims of violence, including violence resulting in grievous bodily harm or death, and violence affects women regardless of all socio-economic, caste and language distinctions.[14]
[14] DFAT, DFAT Country Information Report: India 10 December 2020 at 3.126 – 3.131
Similarly, the US Department of State reported in 2022 that there is a lack of investigation of and accountability for gender-based violence, including domestic and intimate partner violence. It identifies the low conviction rates in rape cases as one of the main reasons sexual violence continues unabated and often unreported and observes the length of trials, lack of victim support, inadequate protection of witnesses and survivors remain major concerns.[15] The UK Home Office reports that despite specific statutory laws which carry harsh penalties for offences such as domestic violence, there remain persistent gaps in enforcing those laws and some women are reluctant to report attacks to the police for fear of reprisals, being stigmatised or unsupported by the justice system.[16]
[15] US Department of State, 2022 Country Reports on Human Rights Practices: India
[16] United Kingdom Home Office, County Police and Information Note India: Women fearing gender-based violence (November 2022) at 2.5.4
The United Nations Special Rapporteur on Violence against Women concluded in her most recent report that ‘the physical, sexual and psychological abuse of women in the private sphere’ by husbands, in-laws and other family members in India ‘is widely tolerated by the State and the community’.[17] Other sources note that some 60% of acid attacks on women are never reported.[18]
[17] Rashida Manjoo, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, 26th session,Agenda Item 3, UN Doc A/HRC/26/38/Add.1 (1 April 2014) 5 [14]
[18] Vidhik Kumar, ‘Acid Attacks in India: A Socio-Legal Report’ (2021) 6(1) Dignity: A Journal on Sexual Exploitation and Violence 1, 1
In light of the above information, the Tribunal finds that effective protection measures are not available to the applicant in India.
Does the harm feared by the applicant extend to all areas of India?
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81] (FCS17).
In considering whether the applicant faces a real chance of persecution across all areas of India, the Tribunal has had regard to DFAT’s 2020 advice that safe relocation for women and girls fleeing domestic or family violence within Indian states or elsewhere in India is practically impossible due to limited availability of shelters/centres and the situation a woman will face upon leaving such centres, where social support networks are unlikely. It reports that according to local sources, some women fleeing domestic violence stay in shelters for more than 10 years and there is little ability of state and NGO resources to reintegrate these women back into the community. Sources in West Bengal told DFAT that, due to a shortage of women’s shelters, women from other states seeking accommodation in shelters were repatriated to their home states.[19]
[19] DFAT, DFAT Country Information Report: India 10 December 2020 at 5.35
Similarly the UK Home Office reports that single women, women living alone and victims of family violence find it difficult to relocate in India without the support and supervision of a male relative to access accommodation and services. Women also face discrimination and stigma which creates barriers in accessing education, health and property ownership. It assesses that women who are seen to have transgressed social, cultural and religious norms, or are single and living alone, may be at greater risk of persecution or serious harm.[20]
[20] United Kingdom Home Office, County Police and Information Note India: Women fearing gender-based violence (November 2022) at 2.4.3; 2.6.5
In this case the applicant has no family or support networks outside of her home area of Tamil Nadu. The Tribunal has accepted that her family will not provide her with accommodation or support in Tamil Nadu or elsewhere. The applicant has for some years been reliant on family violence services in Australia to assist her with housing, employment and the necessities of daily living and she also experiences significant mental health challenges. In the context of the country information cited above, the Tribunal finds that there is no area in India where the applicant would not be exposed to a likely inability to find food, shelter and work in the manner described by the court in FCS17 and therefore the real chance of persecution relates to all areas of India.
Right to enter and reside in a third country
Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them.
Section 36(3) of the Act has the effect that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.[21]
[21] Sections 36(4)–(5A)
This is relevant because the Treaty of Peace and Friendship in 1950 provides for India and Nepal to ‘grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature’.
It is submitted that the applicant does not have a right to enter or reside in India because her passport has expired and she does not hold an Election Card and therefore cannot conclusively prove her Indian nationality in the manner required by Nepal’s Ministry of Home Affairs. The copy of the applicant’s passport on the Department’s file indicates that it expired in 2023.
The terms of s 36(3) provide that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a third country. The Department’s Refugee Guidelines provide that such steps may relate to a range of administrative or practical measures a person may take in a given case, including making contact with consular or diplomatic representatives or immigration authorities; the making of inquiries or applications and the provision of evidence relating to the identity or status of the applicant. The applicant has not provided any explanation for her apparent decision not to renew her Indian passport. In these circumstances the Tribunal is not satisfied the applicant has taken ‘all possible steps’ to avail herself of her right to enter and reside in Nepal.[22]
[22] SZMWQ v MIAC (2010) 187 FCR
It is also submitted that the applicant faces a well-founded fear of persecution in Nepal on the same basis as in India, namely that she is a single, divorced woman who has experienced sexual and physical assault; who struggles with PTSD and suicidal ideation and who has not lived independently in India and has never lived in Nepal. It is submitted that she would be particularly vulnerable to certain types of harassment and abuse that are prevalent in Nepal and she would be likely to experience systemic discrimination in employment. It is submitted that she has a well-founded fear of serious harm in Nepal as a single, divorced, Telugu Indian woman with limited education, mental health concerns, who is a victim-survivor of gender based violence and who has no male support or protection.
The Tribunal accepts that the applicant has never been to Nepal and has no family, friends or connections in that country.
The most recent DFAT report relating to Nepal (1 March 2019) states that the 2015 Constitution prohibits discrimination on the basis of gender in relation to inheritance and government employment, while allowing for ‘positive discrimination’ to establish special opportunities in the areas of 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.[23]
[23] DFAT, DFAT Country Information Report: Nepal 1 March 2019 at 3.61 – 3.75
Notwithstanding these ostensible legal protections, DFAT reports that women across Nepali society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms including rape, sexual abuse and human trafficking. It reports that police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement through informal justice mechanisms, particularly in rural areas. Sexual harassment is common, particularly for women working in the informal sector, and the killing of women for allegedly practising witchcraft is still prevalent.[24]
[24] Ibid at 3.61 – 3.75
While some positive changes are reported, including a small number of domestic violence centres in some districts, and increasing reports of sexual assault as awareness of the criminal nature of that act and the police response increases, DFAT reports that many women lack financial independence and are reluctant to seek help in situations of violence because of the risk to their security and their livelihood.[25]
[25] Ibid at 3.61 – 3.75
Women rarely receive the same educational, employment and economic opportunities as men and DFAT reports that single women and widows are particularly vulnerable. Overall, DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence, with women from poorer or lower-caste backgrounds at higher risk.[26]
[26] Ibid at 3.61 – 3.75
The US Department of State reports that violence against women and girls remains a serious problem in Nepal. It is identified as one of the major factors responsible for women’s relatively poor health, livelihood insecurity, inadequate social mobilisation and a contributor to intergenerational poverty. It reports that patriarchal attitudes and unequal gender division of labour have long been identified as factors causing inequality, with direct links to lower income, education and access to finance.[27]
[27] US Department of State, 2021 Country Reports on Human Rights Practices: Nepal at Nepal - United States Department of State, >
Similarly, the United Nations reports that deeply embedded patriarchal norms and unequal power relations are a particular barrier for the human rights and equality of women, resulting in women (and other excluded groups) across Nepal being subjected to violence, poor health outcomes and death as a result of harmful practices, including caste-based discrimination; menstrual restrictions; child marriage; dowry-related violence; and witchcraft accusations and persecution.[28]
[28] United Nations Nepal Literature Review on Harmful Practices in Nepal January 2020 at desk_review_final.pdf (un.org)
In these circumstances the Tribunal finds the applicant faces a real chance of serious harm in Nepal for the essential and significant reason of her gender. She is particularly vulnerable to gender-based harm because she is a divorced, single woman from India who is without male protection and because she has no family support or other connections in Nepal. For these reasons, the Tribunal finds that the applicant has a well-founded fear of persecution for reasons of her membership of the particular social group, ‘Indian women living alone in Nepal’.
DFAT reports that the effectiveness of the Nepalese police is limited by lack of resources, corruption, nepotism and a culture of impunity, particularly among low-level officers. Nepali police agencies are hindered by a lack of adequate transport, training and equipment and many crimes in rural Nepal occur with inadequate police intervention or follow-up.[29] For these reasons, the Tribunal is not satisfied that effective protection measures are available to the applicant in Nepal.
[29] DFAT, DFAT Country Information Report: Nepal 1 March 2019 at 29
Given the Tribunal’s findings above, the Tribunal is satisfied the applicant has a well-founded fear of persecution in Nepal and therefore, she is not excluded from Australia’s protection obligations by the operation of s 36(3) of the Act. Therefore, she comes within the definition of a ‘refugee’ set out in s 5H of the Act and satisfies the criterion set out in s 36(2)(a).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Alison Murphy
Member

ATTACHMENT A
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted below.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted below.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1579

31 January 2024

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