2204840 (Refugee)

2204840 (Refugee) [2024] AATA 4340 (23 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2204840
COUNTRY OF REFERENCE:                   India
MEMBER:Sydelle Muling
DATE:23 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2024 at 9:48am

CATCHWORDS
REFUGEE – protection visa – India – particular social group – young separated woman – property dispute – family violence – fear of killing – fear of sex trafficking – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 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 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 9 October 2019. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a protection visa.
The applicant appeared before the Tribunal on 10 April 2024 and 31 July 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Bengali and English languages. The applicant chose to communicate in English during the course of both hearings.
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 in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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.
CLAIMS AND EVIDENCE
The applicant claims to be a citizen of India who was born on [date] in Kolkata, West Bengal. According to her protection visa application, the applicant’s ethnicity is Bengali and her religion is Hinduism. She resided in [Town 1], Kolkata from [birth] to October 2015 and in Dum Dum, Kolkata from October 2015 to July 2019. The applicant completed a [Qualification 1] between [specified years] and is fluent in English, Hindi and Bengali. She was married [in] May 2019. Her father is deceased and her mother is residing in India. The applicant departed India legally on [a day in] July 2019, arriving in Australia on the same day.
The applicant presented her claims in a statement attached to her protection visa application, summarised as follows:
·She fears harm from her stepmother who wants to grab her property.
·Her father and mother separated and were divorced years ago due to differences in opinion. Her father remarried her stepmother who considers her an enemy as she does not want her to claim her father’s property.
·After her father passed away, she used to live with her grandfather. Her grandfather is now old and struggling with a range of ailments so is no longer able to take care of her or offer her any support, be it financial or emotional.
·She does not have contact with her mother as she has been estranged from her since she remarried and had a family of her own.
·Her grandfather is greatly worried about her safety due to the land dispute she has with her stepmother, who has connections with underworld criminal elements. She has inherited the property from her father as his legal heir but her stepmother is claiming that since it was not registered she does not have claims over the property and has taken steps to sell it.
·After coming to Australia, her stepmother has threatened her grandfather on multiple occasions. She has also threatened to kill her if she takes steps to claim her property. She is aware of her stepmother’s family background and the person she is married to now is a dangerous criminal with political affiliations.
·Her husband who is an Australian citizen is worried about her returning to India as there is no guarantee for her life. He fears that criminal gang members would target and force her to transfer the property to her stepmother’s name, under her instigation, and if she fails to do so, she and her husband fear that they would kill or harm her.
·She is seeking protection because:
-She will be targeted due to the illegal property grab;
-She does not have a male person to protect her in India and her grandfather has already informed her that he is not in a position to protect her;
-She will face sexual assault and harassment in India; and
-She will be targeted, abducted and trafficked to another country to engage in forced prostitution.
·She fears the authorities in India will not be able to protect her because they do not have the manpower and due to the male chauvinist mentality of the police. She fears the police will take undue sexual advantage of her due to her gender.
·She would not be able to move to other areas of the country because she would face practical difficulties due to her gender and marital status. In addition, the criminal gangs operating in West Bengal have links and connections with other criminal gangs in India.
·Moving to Nepal is not an option because country information confirms that women in Nepal face targeted attacks and have been abducted to enter into sexual servitude and trafficked to other countries and she fears she will be a victim of that.
In a further statement made by the applicant, dated 2 June 2021, the applicant provided the following additional information, in summary:
·At the time she applied for protection, her husband (now ex-husband) paid for legal advice and help from a migration agent, who lodged her protection visa application and statement in support of her claims, which was only a summary of her fears.
·If she is forced to return to India she is fearful that her ex-husband will kill her and his family will also try and take revenge on her, harming her seriously, for what happened in Australia. She is also very scared to go back to India as a young, separated woman without male protection. She fears she will be at risk of sexual assault and harassment and other harm for these reasons from other men. She is also still fearful of her stepmother, as she explained in her earlier statement.
·Before she left India she had almost no contact with her mother. Her mother usually communicated with her grandparents and she had very little direct contact with her and saw her only a few times. Only since she has been in Australia did she have direct contact with her mother, after her grandparents told her mother what she was going through with her ex-husband. Her mother then contacted her and offered her some emotional and mental health support.
·She is single and separated from her husband. She would like to get a divorce from him as soon as possible.
·Her stepmother was not good to her. She used to get jealous of her and they had many arguments.
·Her father died of [a medical condition] about 6 years ago. After he died, her stepmother told her she did not belong in the house and that she needed to leave and that the house was hers and everything belonged to her. She had to go and live with her grandparents as there was no one else to take care of her.
·Her mother remarried and has her own family. She has [children] who are her half siblings.
·When she lost her father, she had to live with her grandparents and she felt like a burden to them. They live with her aunty and uncle and her aunty did not like her staying there.
·She started working while she was studying at university, to support herself financially.
·She first met her ex-husband sometime in the first half of 2019. She was introduced to him by her teacher, who was her ex-husband’s first cousin. Her teacher also helped to arrange their marriage.
·Her ex-husband came to India just before the wedding and she met him for the first time a day before. Her family paid for the wedding ceremony and household items and provided her ex-husband and his family with clothes and gifts.
·They were married [in] May 2019 in a religious and legal ceremony. Her ex-husband left for Australia a few days later. She was granted a visitor visa to travel to Australia in July 2019.
·Her ex-husband was always telling her that he would apply for a partner visa for her but after she arrived, he delayed doing this, giving excuses about money and time. He then spoke with a migration agent and told her that she needed to apply for a protection visa because of the fears she had of her stepmother.
·They lived by themselves for a few weeks until his parents and brother travelled to Australia and moved in with them. Around this time things changed between them. She was left out and ignored whenever she showed an interest in family matters and this caused heated arguments between them. He would verbally abuse and sometimes physically abuse her, beating her and slapping her face. From what she can remember he beat her about 9–10 times during these arguments.
·A few times her ex-husband threatened to kill her. Once he said he would cut her into pieces and her family would never even find the pieces. His parents and siblings would take his side in arguments. They manipulated him into thinking she was after his money.
·Her ex-husband’s sister and her husband and kids arrived in Australia in around September 2019 and started living with them. When the property manager found out 9 people were living in a 2-bedroom apartment and his sister and her family were required to move out, his family accused her of provoking her ex-husband, which resulted in arguments. When she defended herself, her ex-husband beat her so badly that she could not eat normally for a couple of weeks because of the bruises and cuts inside her lips and throat.
·In April 2020, they had a verbal argument in the bedroom and her ex-husband was intimidating her and showing her his hands and fists. She called her mother to let her know she was in danger as she thought he might kill her that night. After she finished the call, another argument started, and her ex-husband grabbed her and started punching her in her face and back and grabbed her throat and started choking her. She was going to leave but her father-in-law convinced her to leave in the morning so she stayed in the living room and left for the police station early in the morning.
·She sat outside the police station for an hour before she went in and reported her ex-husband’s abuse. The police gave her somewhere safe to stay and eventually helped her to move to Melbourne as she did not want to stay in the same city or go to Sydney where her ex-husband’s sister lived.
·After she left the house, her father-in-law called but she did not pick up. Her ex-husband texted her, and her ex-husband’s brother and brother-in-law called her a few days later but she did not answer and blocked all their numbers so they could not contact her again.
·She was told the police arrested her ex-husband and he was bailed. She does not know if he was charged but they had court hearings for the Apprehended Domestic Violence Order (ADVO) that the police applied for. The court made a 2-year final ADVO.
·After she separated from her ex-husband her mental health was shattered. She felt very depressed about what happened to her. She was so upset she could not sleep. She used to have panic attacks a few times a week. Her psychologist gave her medicine to help. She was regularly seeing a psychologist until recently. After seeing a doctor and psychologist and taking medication, she is doing better. Now she only sometimes has panic attacks but still takes anxiety medication.
·She is in danger in India. Her ex-husband tried to kill her and he is the most dangerous thing for her as she believes he will kill her. If he or his family find out she is back in India they will do something about it.
·The police told her that her ex-husband lost his job with [Employer 1] and he has a criminal record because of her report to the police. It is very shameful to him and his family that he was reported to the police and she left him. She believes he will try to take revenge on her for what happened.
·She believes his family are also angry with her because she went to the police and reported her ex-husband. All her ex-husband’s family have the same personality, they shout and use bad words and are aggressive. The only reason they have not contacted her again is because she blocked their numbers and there is an ADVO.
·Some of her ex-husband’s family live close to where her grandparents live and to her father’s house, so if she goes back they will find out and she will have to be very careful all the time. She will be in constant fear that anyone could come and harm her on behalf of her ex-husband.
·She is also very scared to go back to India as a young, separated woman without male protection as the situation is very bad for women in India. Single women in India are often abducted, trafficked and forced into prostitution and she is fearful this will happen to her. It will not be safe for her to live alone without male protection. It will be unsafe for her to go out at all – to work or buy food alone as a single woman. She fears that men will target her for sexual harassment and abuse or worse.
·If she goes back as a divorcee, men will think she is very easy and they will try to approach her with bad intentions, with a view to sexually harass and abuse her. In general, society in India does not respect divorced/separated women. Applying for work as a separated woman will cause her big problems. As a woman it is already very hard to find work and she will have to provide her personal history when she goes for a job interview so they will know she is separated from her husband. She might not get the job for this reason or even if she does manage to get the job she will have to accept something less than what she is qualified for and will be paid less and not offered promotions.
·She cannot live with her grandparents anymore because her aunt and uncle do not want her living there. Her grandfather is old and has health issues and cannot offer her further support or protection.
·Her mother lives somewhere in Kolkata but she is not sure of her address. She cannot live with her mother as she has her own family and would not let her live with them. She does not know her mother’s husband well, having only spoken to him a handful of times.
·There is no support or help for single/separated women in India.
·Her mental health will also be impacted a lot if she is sent back. She will lose all her confidence and won’t have any energy left to do anything right in her life. She would not be able to afford medication as it is very expensive. Psychologists are available but it would be out of her reach financially.
·She is also still fearful of her stepmother if she does not agree to give her her father’s property. Her stepmother tried to sell it but was not able to as she is not the legal heir. Her stepmother threatened her and her grandparents in the past. She clarified that the threat she claimed her stepmother made to her grandfather, that if she took steps to claim her property she would be killed, was actually a threat she made to her in person before she left. Her stepmother made a few threats like this to her. She did not report the threats to the police because she had no evidence and could not prove it.
·Since she left India, her stepmother has sent someone to threaten her grandfather a couple of times. He told her once someone came up to him in the street and made a threat against her.
·Her stepmother and her family do not know her contact information in Australia but will find out if she returns, and even if she moves elsewhere in India, as she is well connected to criminal gangs through her husband and her father supports a group of local politicians who she believes are part of a criminal gang.
·She will not get help from the police. The police are not reliable and they accept bribes. As a divorcee and single woman, the police will take her complaints even more lightly and won’t help her at all. She is scared they will make fun of her or worse.
·Her ex-husband and his family will find her wherever she goes in India. His family and friends live all around the city and will see her when she returns. They could also hire a professional to find her.
·Wherever she goes in India it will be the same. There is no security for women in India. It is not safe for women to travel on public transport in India as women are harassed and sexually assaulted by men.
·She has no connections or family elsewhere in India. She speaks Hindi, Bengali and English but every other state in India has other local languages which she does not speak so she will not be able to communicate easily. This would make finding work and somewhere to live even more impossible, in addition to being a single separated woman.

The applicant also submitted the following:
·A copy of the Final Apprehended Domestic Violence Order issued against her ex-husband made [n] November 2020, for 2 years duration.
·A letter from the applicant’s representative clarifying that in the applicant’s statement (summarised above) when the applicant referred to threats being made against her by her stepmother, the threats were actually made by unknown men sent by her stepmother. It was stated that the applicant instructed that she was approached by an unknown man on several occasions on the street and the threats were sporadic however continued until she left India.
The applicant was interviewed by the delegate on 7 December 2021. Following the interview, the applicant’s representative provided a written submission summarising the applicant’s claims for protection and country information in relation to violence against women in India, state protection and relocation.
On 26 February 2024 (and 1 March 2024) the applicant provided a number of links to information regarding violence against women in India, including various sourced reports of cases of violence against women in India including rape, murder, sexual assault and harassment, a summary of a number of rape cases reported in India from unknown sources, an unsourced list of rape cases in India from 2012 to 2020 and what appears to be an extract from Wikipedia on violence against women in India.
The applicant appeared before the Tribunal on 10 April 2024 and 31 July 2024 and gave oral evidence about her circumstances in India, the reasons she left the country and why she does not want to return there now. The evidence will be discussed below, in the analysis and findings.
Following the hearing, on 10 May 2024, the applicant provided a number of documents including the following:
·Several photographs of the applicant depicting injuries she had sustained purportedly as a result of violence from her ex-husband.
·Letters from the NSW Government dated [in] May 2020 in relation to Victim Services provided to her.
·Email communication between the applicant and the Department of Home Affairs [specified] Branch dated 29 April 2020 and 12 May 2020 in relation to the applicant not wanting to continue being represented by her appointed migration agent at the time.
·Advice of Court dated [in] May 2024 from the Local Courts of New South Wales for the matters brought against the applicant’s ex-husband.
·An affidavit dated 7 December 2016 made by the applicant confirming that she is the only legal heir and successor of her deceased father.
·Letters and emails from various family violence support services include [several agencies].
On 5 August 2024, following the hearing on 31 July 2024, the applicant forwarded to the Tribunal an email she sent her previous migration agent on 4 October 2019 with an email she received from her grandfather on 22 August 2019 in which he discussed his health, asserted that despite the fact he had looked after the applicant since her parents divorced and her father passed away he would not be able to provide her a room to live in if she returns to India and discussed the threat to kill her he had received over the phone from the ‘goons’ her stepmother had been in contact with. The applicant’s grandfather states in the email that he ‘earnestly requests’ she applies for a partner visa to remain in Australia and also that he is sending the email because his phone has been tapped by these people.
In the accompanying email from the applicant, she submits that there was some confusion in her account of the threats that were made to her grandparents by her stepmother’s helpers. The applicant asserted that the initial incident involved a threatening phone call to her grandfather, followed by the subsequent visits she had claimed. She submitted the traumatic experiences of her abusive marriage had blurred some details in her memory. The applicant also claimed that marital abuse remains a prevalent issue in India, often resulting in tragic consequences for women. She submitted that the influence of wealth and power in legal matters further compounds the challenges faced by individuals without such resources and given she comes from a modest background, she lacks the financial means to ensure her protection in such circumstances.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether there is a real chance that, if the applicant returns to India, she will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to India, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.
The applicant travelled to Australia on a valid Indian passport and states that she is a national of India. The Tribunal accepts on the evidence before it, namely a copy of the applicant’s passport, that India is the applicant’s country of nationality and receiving country for the purposes of complementary protection.
Fear of harm from stepmother and her associates
The applicant claims to fear harm from her stepmother and her stepmother’s family because she refused to give her stepmother her father’s property which she inherited as his legal heir after he passed away. She claimed that her stepmother had threatened her prior to her departure from India and, after she left the country, threatened her grandparents. In the hearing the applicant stated that her primary concern is that if she returns to India her stepmother will hire someone to harm her so it cannot be traced back to her.
The applicant claimed in the hearing that her parents’ marriage ended when she was in [range of grades], when she was around [age range] years old. In the interview with the delegate, the applicant claimed she was in class [earlier grade], so she would have been [younger age range] years old when her parents separated. Whilst the applicant has identified a time period spanning nearly 4 years in which this significant event in her life occurred, the Tribunal accepts the applicant’s parents separated and divorced during the applicant’s teenage years.
The Tribunal accepts that following the applicant’s parents separating, the applicant chose to live with her father. It also accepts the applicant had no contact with her mother following her parents’ separation. In the hearing, the applicant explained that her mother did try to contact her but she refused to speak to her because she was angry. It accepts on the basis of the applicant’s consistent evidence, that the applicant’s father remarried in 2014. In the hearing, the applicant claimed that her father’s marriage to her stepmother was not a legal marriage but a religious marriage.
The Tribunal accepts as plausible that the applicant’s relationship with her stepmother was not a good one. It accepts that there may have been arguments in the household between the applicant and her stepmother. When asked what these arguments were about, the applicant stated just bickering and explained if she wanted something in the house or wanted to eat something in the fridge, her stepmother would go against her and say she could not eat now, and they would argue. The applicant noted that as she was a teenager she did not have much restraint and would argue back. The Tribunal notes the applicant’s evidence suggesting she thought this was reflective of a mother and daughter relationship. The Tribunal accepts the applicant’s evidence that her stepmother may have slapped her with a shoe on one occasion. The applicant claimed that she and her stepmother argued because her stepmother did not want to get the food out of the fridge that she wanted to eat for lunch and during the argument, her stepmother hit her with a shoe. The applicant claimed that she called her grandparents and asked them to come and take her to their house. The applicant confirmed that this was the only occasion her grandparents took her to their home whilst her father was alive.
The Tribunal accepts the applicant’s father died in March 2015 based on the applicant’s consistent evidence. It has also taken into consideration the affidavit the applicant submitted following the hearing dated 7 December 2016 which states that the applicant’s father died intestate [in] March 2015 and confirms she is her father’s only legal heir. However, for the following reasons, the Tribunal does not accept the applicant’s claims regarding the problems she claimed to have allegedly experienced following her father’s death because her stepmother wanted her father’s property.
The Tribunal finds numerous aspects of the applicant’s evidence inconsistent. First, it notes with respect to how the applicant came to live with her grandparents, in the applicant’s detailed statement submitted to the Department, she claimed after her father died her stepmother told her she did not belong and needed to leave her home, so she had to go and live with her grandparents. Yet, in the hearing her evidence was that she decided to leave her father’s house because her stepmother and her family were all there, she did not feel comfortable, and they were putting pressure on her. She stated that she did not feel safe at home so called her grandparents and they came and took her to their home and she started living there. When the Tribunal put this discrepancy to the applicant for her comment, the applicant reiterated that she did decide to leave her home but that was because she was threatened or pushed or intimidated by her stepmother and her family. The applicant stated that they did mention or make her feel like they wanted her to leave. The Tribunal finds the applicant’s clear evidence in the hearing was that she made the decision to leave her father’s house and there was nothing to suggest that her stepmother had asked her to leave, as she had asserted in her written statement.
Secondly, the Tribunal notes in the applicant’s protection visa application, as well as in her statement submitted to the Department, she claimed that her stepmother had taken steps to sell her father’s property, yet she did not repeat this claim during the hearing. The applicant’s evidence in the hearing was that her stepmother had moved out of her father’s house a couple of months after the applicant moved out in May 2015 and the house had been locked up since. The Tribunal finds it concerning that if the applicant’s stepmother had attempted to sell the applicant’s father’s property as she had previously claimed that she would fail to raise this when asked directly what happened with the property following her father’s death.
Thirdly, the applicant claimed in the hearing, that she was first approached and threatened by people acting on behalf of her stepmother when she started working in 2017. In response to the Tribunal’s question asking what happened that first time, the applicant explained that she was going home from work in the evening after 7pm and had got out of an autorickshaw and was waiting for another vehicle to come, when a tall guy in his mid-30’s came up to her and asked her name or alternatively called her by name, as she subsequently asserted. She claimed when she turned around, he said that he knew her stepmother and she had asked her to do something and she had not done it yet so if she wants to be safe or if she wants to live, she should do it. The Tribunal notes the applicant confirmed that this was the first time she had been approached and the first time something had happened in relation to the alleged dispute she had with her stepmother since she had left her father’s home. However, in the interview with the delegate the applicant claimed the first time she was approached was when she was coming home from tuition and a guy came up to her and asked her name and told her to sign the property to her stepmother or the result would not be good for her. When asked to explain this inconsistency in her evidence, the applicant stated that the college incident happened after the first time or a couple of times after that so it was not the initial time she was approached by someone. She claimed it was hard to remember which incident happened first and that it was stressful for her to remember. The Tribunal finds the applicant’s explanation unconvincing. While it appreciates that it may be difficult to remember all the details of what allegedly transpired several years ago, the Tribunal does not accept that the applicant would not be able to recall with some consistency whether she was returning from college or from work when she was first allegedly threatened by men acting at the behest of her stepmother given the significance of this event.
Fourthly, the applicant claimed in the hearing that since she departed India in July 2019, only her grandmother was approached by someone when she went out to get the groceries and a stranger asked her grandmother where she was and said she should do what they asked if she wants to be safe. The applicant claimed this incident occurred in mid-2019 and she confirmed only her grandmother was approached this one time. In stark contrast, the applicant’s evidence in the interview with the delegate was that her grandmother and grandfather had been approached once or twice, as she was. She claimed on one occasion, her grandfather was walking slowly and a person came up and said it was good his granddaughter was not coming back and to tell her not to come back and behave herself. The applicant claimed that this happened in mid-2019. The other occasion she spoke about was when her grandmother went to do the grocery shopping and someone told her to tell her granddaughter not to come back or she might be harmed. When the Tribunal put this discrepancy to the applicant and asked her to explain, the applicant confirmed it was her grandmother who was approached, and her grandmother told her grandfather what happened and he contacted her to let her know. She stated that she could not recall her grandfather getting approached. The Tribunal finds the applicant’s response does not address its concern.
During the hearing on 31 July 2024, the Tribunal discussed with the applicant this information and invited her to give comments and a response in accordance with the requirements of s 424AA of the Act. The Tribunal explained to the applicant that this information was relevant because the difference in her evidence in the hearing, as compared to in the interview with the delegate, with respect to her grandparents being approached about her, raised serious doubts about the credibility of her claim that her stepmother has any interest in her because she wants her father’s property. The applicant responded during the hearing that as these incidents occurred a few years ago she could not put them in order from 1 to 10. She further stated that as this was a traumatic time it scared her to even remember and sometimes she confused which incident came first and which came second. As the Tribunal put to the applicant, its concern was not about which incident occurred first but the fact that her evidence in the hearing conflicted with the evidence she gave during the interview with the delegate about her grandparents’ alleged experiences. The Tribunal does not accept that the applicant would not be able to recall with some consistency if just her grandmother was approached by people allegedly at her stepmother’s behest, or if both her grandmother and grandfather had been confronted by these people. The Tribunal finds the applicant’s explanation that she could not remember which incident happened first or second does not address its concern. Nor does it accept that these incidents as recounted by the applicant are so traumatic that she cannot remember them or because they happened 4 or 5 years ago she similarly cannot remember if it was just her grandmother or both her grandparents who were approached by these people enquiring about her.
Following the hearing, the applicant submitted to the Tribunal an email from her grandfather dated 22 August 2019 in which he refers to having received intimidating calls from dangerous goons with whom her stepmother had been in contact, who had made threats to kill the applicant. The applicant submitted that the initial incident involved a threatening phone call and this was followed by subsequent visits. The Tribunal observes that the email from the applicant’s grandfather does not refer to either him or the applicant’s grandmother being approached by these goons, as was claimed by the applicant, but instead refers to receiving a threatening call, which the Tribunal observes the applicant made no mention of during the hearing. While the applicant submitted that the trauma of her experiences of family violence in Australia may have blurred some of the details in her memory, the Tribunal has serious concerns that when it asked the applicant during the first hearing whether her grandparents had contact with her stepmother or anyone associated with her stepmother apart from the one incident when her grandmother was approached when she went grocery shopping (which she spoke about during the hearing), the applicant stated no. It also notes the applicant’s evidence regarding her trying to hide details of her grandparents address and contact number from her stepmother so she could not be reached directly. Taking into consideration the entire contents of the email from the applicant’s grandfather, the Tribunal finds it to be contrived for the sole purpose of supporting the applicant’s application to stay in Australia (on what at the time appeared to be a partner visa based on her grandfather’s repeated references to a partner visa) given her grandfather notes her 3-month family sponsored visa was due to expire shortly. For this reason, the Tribunal places no weight on the email from the applicant’s grandfather and finds that this does not address the Tribunal’s concerns regarding the credibility of the applicant’s claim that her stepmother wanted her to sign over her father’s property to her or that people associated with her stepmother had threatened her grandparents either by phone or in person.
In addition to the inconsistencies in the applicant’s evidence, as discussed above, the Tribunal finds the applicant’s claims regarding her stepmother’s actions, or lack thereof, doubtful. The Tribunal has considered the totality of the applicant’s claim and finds it unbelievable that if the applicant’s stepmother really wanted her father’s property, as she has asserted, that over a period of more than 4 years between the applicant’s father’s death and the applicant’s departure from India in July 2019, nothing more would have happened than the applicant being approached and verbally threatened by these unknown men a few times (roughly 4 or 5 times as she claimed in the hearing), particularly when she did not comply with these alleged requests. The Tribunal finds the applicant’s claims implausible in this respect when taking into consideration her evidence in her protection visa application and detailed statement that her stepmother is well connected to criminal gangs through her husband, who she claimed in her protection visa application is a dangerous criminal with political affiliations (although the applicant claimed in the hearing to have no idea if her stepmother had remarried) and her stepmother’s father who supports a group of local politicians who she believes are also part of a criminal gang.
Similarly, the Tribunal finds the applicant’s claim that her stepmother and these people acting on her stepmother’s behalf did not know where her grandparents’ home was unbelievable. The Tribunal has taken into consideration the applicant’s evidence in the hearing that she believed she was being followed and tracked for a long time which is how these people knew where she would be and at what time. Further, she claimed in the hearing that they knew the walkway to her home or the street she walked on. In these circumstances, the Tribunal finds it far-fetched that her stepmother would not know the applicant’s grandparent’s address and where she had lived.

The Tribunal does not accept the applicant’s claim in the hearing that a letter was sent from one of the political offices saying they will challenge any sort of paper she has registering her father’s property in her name. The applicant asserted that this letter shook her lawyer because it came from a political government office. The Tribunal notes that the existence of this letter was not raised in the detailed statement the applicant submitted to the Department. The applicant also did not provide a copy of this letter despite the fact she was given time following the hearing to submit further evidence in support of her claims. Given the applicant only mentioned this letter for the first time during the hearing, the Tribunal finds the applicant has concocted this claim in an effort to bolster her case.
The Tribunal has also taken into consideration the applicant’s evidence in the hearing that her father’s property is locked up and vacant and no one is looking after it. According to the applicant, her neighbours have advised her grandmother that the house is fine and no one has broken in and damaged the property. As the Tribunal put to the applicant in the hearing, it has serious doubts that if her stepmother wanted her father’s property, that in the nearly 5 years since she left India, her stepmother has done nothing to take over the vacant property, particularly in light of her alleged political and/or criminal connections. The Tribunal notes the applicant’s response that it would be illegal if it is not in her stepmother’s name and her stepmother could be prosecuted if she went ahead and did anything. While the Tribunal accepts such actions by the applicant’s stepmother would not be legally permissible, as the Tribunal put to the applicant, there is corruption in India and land grabbing and other illegal activities do occur. Given the applicant’s claim is that her stepmother is so determined to take ownership of her father’s property to the point that she would have people repeatedly threaten her if she does not relinquish her rights as her father’s heir, and in light of her political and criminal connections, the Tribunal finds it unbelievable that her stepmother would not have taken some action in the many years the applicant has been absent from the country to take ownership of the property, even illegally, in order to sell it, as the applicant claimed was her stepmother’s alleged intention.
Based on the above, the Tribunal does not find the applicant’s claims regarding her stepmother’s interest in her father’s property credible. It does not accept that the applicant was approached by men acting on behalf of her stepmother and threatened that if she did not sign her father’s property over to her stepmother she may be harmed. The Tribunal therefore does not accept that the applicant stopped going to work and just stayed home because she was scared someone could stab her, as she claimed in the hearing. The Tribunal notes the applicant’s evidence was that she worked from [2017] until February 2019, when her marriage was arranged. The Tribunal also does not accept that after the applicant left India, either her grandmother or grandfather were similarly approached and told the same things or that her grandfather received any threatening call or had his phone tapped by these people as he asserted in his email. For the reasons outlined, the Tribunal does not accept the applicant’s stepmother tried to force the applicant to transfer her father’s property to her. It does not accept the applicant’s claim that her stepmother considers her an enemy because she does not want her to claim her father’s property. As such, the Tribunal does not accept that if the applicant returns to India, she faces a real chance of being harmed, including being threatened, physically assaulted and possibly killed by her stepmother or people associated with her stepmother if she refuses to transfer her father’s property to her stepmother or because of any dispute over her father’s property that she has with her stepmother.
The Tribunal does not accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to India, there is a real risk that the applicant will suffer significant harm from her stepmother or people associated with her for this reason.
Fear of harm from ex-husband and his family
The applicant raised fears of being harmed or killed by her ex-husband and his family because they will try to take revenge on her for what had happened in Australia. The applicant claimed that she reported her ex-husband to police in Australia for family violence and as a result, he was jailed for a week and subsequently charged and convicted.
The Tribunal accepts the applicant’s evidence regarding her marriage to her ex-husband and the problems she experienced. It is prepared to accept the applicant was introduced to her ex-husband by her teacher, who was also her ex-husband’s cousin, and that her teacher arranged the marriage with her grandfather. It accepts the applicant was married in May 2019 in India and that the applicant joined her ex-husband in Australia in July 2019.
The Tribunal accepts on the consistent and plausible evidence provided by the applicant that she started experiencing difficulties in her marriage a few weeks after she arrived in Australia, when her ex-husband’s parents and brother travelled to Australia and moved in with them. It accepts that the applicant and her ex-husband engaged in heated arguments and that in addition to him verbally abusing her, the applicant was also physically abused on several occasions. The Tribunal also accepts that the applicant’s ex-husband made threats to kill the applicant.
The Tribunal accepts that after an incident in April 2020, during which the applicant’s ex-husband choked her, the applicant went to the police and reported her ex-husband’s abuse. It accepts on the applicant’s consistent evidence and the documents submitted following the hearing, that the applicant’s ex-husband was charged with a number of offences, including ‘assault occasioning actual bodily harm (DV)’, ‘stalk/intimidate intend fear physical etc harm (domestic)’, ‘intentionally choke etc person without consent (DV)’ and ‘common assault (DV)’. According to the Advice of Court Results received from the Local Courts of New South Wales, submitted by the applicant following the hearing, the charges relating to intentionally choke and common assault were withdrawn. The applicant’s ex-husband was convicted and sentenced to a community correction order for [a specified] period, commencing [in] November 2020, for the assault occasioning actual bodily harm and stalk/intimidate charges. The Tribunal accepts that the police obtained an ADVO on the applicant’s behalf which was issued [in] November 2020 and was of [period] duration. It also accepts that the police referred the applicant to family violence services who assisted the applicant to relocate from New South Wales to Melbourne and supported her in various ways including in finding housing, employment and accessing mental health services. The applicant’s evidence was that her divorce from her ex-husband was finalised in 2021.
Based on the evidence before it, the Tribunal accepts the applicant has a strong subjective fear of harm from her ex-husband and his family if she returns to India given her past experiences of harm during her marriage. In her statement she claims that her ex-husband will kill her because she reported him to the police and he has a criminal record as a result. She asserted that her ex-husband would want to take revenge for what happened.
The Tribunal does not accept the applicant’s claim that her ex-husband lost his job with [Employer 1] because of her. The applicant’s evidence in the hearing was that she heard this from the manager of [Employer 2] where her husband also worked. When asked if she knew why her ex-husband lost his job at [Employer 1], the applicant stated that she did not know. The Tribunal notes, as it did in the hearing, that in the applicant’s statement submitted to the Department, she claimed that it was the police who had told her that her ex-husband had lost his job with [Employer 1]. When the Tribunal put this to the applicant, she responded that the police officer that helped her told her he could lose his job. The applicant confirmed that the police officer did not tell her that her ex-husband actually lost his job. The Tribunal finds the applicant’s evidence about her ex-husband’s employment with [Employer 1] to be inconsistent and lacking and for this reason does not accept that he in fact lost his job with [Employer 1]. The Tribunal also notes the applicant’s evidence in the hearing that she was told by the manager at [Employer 2] that her ex-husband was also fired from his job there, however she claimed this was because he was having a relationship with a co-worker and was not related to her or her actions.
The Tribunal finds the applicant’s claims regarding the harm she fears from her ex-husband and his family if she returns to India to be purely speculative. The Tribunal has taken into consideration the fact the applicant has had no contact with her ex-husband or his family since she left him in April 2020. While the applicant’s evidence was that her ex-husband and his family do not have her contact details, the Tribunal notes the applicant’s evidence that her ex-husband has family living close to where her grandparents live, including her teacher who is her ex-husband’s cousin who arranged their marriage. In those circumstances, the Tribunal finds that if the applicant’s ex-husband and/or his family had any interest in the applicant, they could have made enquiries with her grandparents. The applicant’s clear evidence was that her grandparents in India have also not had any contact from any members of her ex-husband’s family living in India. The Tribunal has considered the applicant’s claim in her statement that her ex-husband and his family have also not contacted her because there is an ADVO in place. The Tribunal notes that the ADVO was in operation for a period of [period] from November 2020. The applicant confirmed that she did not obtain a further ADVO because she had had no contact with her ex-husband or his family, so it was not necessary. Based on the applicant’s evidence, it is apparent that since [that expired] there has been no ADVO in place to prevent the applicant’s ex-husband or his family contacting her.
The Tribunal has also had regard to the applicant’s evidence that her ex-husband’s immediate family are from [Country 1] and do not live in India. The Tribunal notes the applicant demonstrated no knowledge as to whether her ex-husband’s parents and siblings were still in Australia or if they had returned to [Country 1]. It refers to the applicant’s evidence in the hearing that it was her ex-husband’s plan to move all his immediate family to Australia. As she stated in the hearing, her ex-husband’s family came to Australia to live, including his sister who sold her home and belongings to come here. Accordingly, it is not apparent from the evidence before it, where the applicant’s ex-husband’s immediate family members are residing.
On the basis of the evidence before it, the Tribunal accepts the applicant has a subjective fear of harm from her ex-husband and his family, particularly her ex-husband’s cousin who lives in the area where her grandparents live so she may come across him if she returns to India. Objectively, the Tribunal does not accept that the applicant faces a real chance of serious harm including being verbally threatened, physically assaulted and possibly killed by her Australian citizen ex-husband or any of his family members because she reported him to the police in Australia and they are angry with her because of the shame she had brought to them, they want revenge for her reporting her ex-husband to police or for any other reason. The Tribunal finds the applicant’s claim in this respect to essentially be unsupported assertions and conjecture.
For the same reasons, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of being returned to India, there is a real risk that the applicant will suffer significant harm from her ex-husband, any of his family members or anyone associated with him.
Fear of harm as a young single and/or separated woman without male protection, as a divorced woman and as a woman/young woman
The applicant also raised claims based on her status as a young single and/or separated woman without male protection. She claimed to fear being at risk of sexual assault and harassment and other harm for this reason. In her protection visa application she claimed she will be targeted, attacked and trafficked to another country to engage in forced prostitution. In her detailed statement submitted to the Department, the applicant submitted that the situation is very bad for women in India and it was not safe for her to live alone without male protection. She asserted that it was unsafe for her to go out at all as a single woman.
The Tribunal does not accept that the applicant will be without male protection if she returns to India or that she will be required to live alone, as she claimed. The Tribunal does not accept the applicant’s claims that her grandparents have advised her that they are no longer in a position to take care of her or protect her. The Tribunal has taken into consideration the email to her from her grandfather dated 22 August 2020 which the applicant submitted following the hearing on 31 July 2024. In this email, the applicant’s grandfather states that he is sorry to inform the applicant that he will not be able to provide her with an extra room to live in if she comes back as his financial situation is really bad given he paid for her wedding with whatever he had. As discussed above, the Tribunal finds that this email has been manufactured for the sole purpose of supporting the applicant’s application to stay in Australia and therefore it places no weight on the email from the applicant’s grandfather.
The Tribunal has taken into consideration the applicant’s evidence in the hearing that her grandparents love her and want her to be safe and have done everything they can to protect her. Having regard to the support her grandparents have provided over many years including coming and taking the applicant to their home when she argued with her stepmother whilst her father was still alive, moving her in with them after her father passed away, arranging her marriage and paying for her wedding ceremony and household items and providing her ex-husband and his family with clothes and gifts and the regular and ongoing communication she has had with them since coming to Australia, as the Tribunal put to the applicant, it finds it hard to believe her grandparents would wash their hands off her and allow her to return to India and fend for herself.
The Tribunal notes the applicant’s evidence regarding her aunt’s dislike of her living with her grandparents in the past and her belief that both her aunt and uncle do not want her returning to live there. While the Tribunal accepts the applicant’s aunt may not have been pleased with her presence in her grandfather’s home due to the costs associated with having an extra person in the household, the Tribunal has some doubts about her assertions that her aunt never cooked for her or never spoke to her. The Tribunal has taken into consideration the fact the applicant went to live with her grandparents in 2015, a few months after her father died in March 2015, and she lived there until 2019 when she came to Australia, a period of 4 years. The Tribunal does not accept in those circumstances that the applicant’s aunt had no interaction with the applicant, as she essentially claimed, over such an extended period of time. The Tribunal also has difficulty accepting that if the applicant’s aunt and uncle were against the applicant living in her grandparents’ home, she would have continued doing so for so many years. Alternatively, the Tribunal finds the applicant’s continued residence there was because it is her grandparents’ home and they wanted her living there, despite the views of the applicant’s aunt and uncle. As the Tribunal noted in the hearing, her grandfather is the head of the family, and it is his home. The Tribunal also notes the applicant’s evidence in the hearing that she has not had any contact with her aunt or uncle since the breakdown of her marriage. Accordingly, the Tribunal finds the applicant’s assertions regarding her aunt and uncle’s views to be essentially speculative.
The Tribunal appreciates that the applicant’s grandparents may not be able to financially support her, as she claimed in the hearing. However, the applicant’s evidence was that she financially supported herself whilst she lived with her grandparents previously. She claimed in the hearing that she started working in a [business] from [a specified year] and was promoted within 3–4 months into human resources, where she then worked [in specified roles].
As the Tribunal does not accept the applicant’s assertions that she cannot return to India and live with her grandparents as she did before she came to Australia, the Tribunal does not accept that the applicant will be without male protection on her return to India. The Tribunal does not accept that the applicant will be required to live by herself because she does not have family support. It has considered the applicant’s claim that it is not the norm for her to live with her grandparents or mother as they have separate families. However, taking into consideration the fact the applicant resided with her grandparents on occasion after her parents divorced, prior to her father passing away, and full time after her father’s death until she departed the country to join her ex-husband in Australia, the Tribunal does not accept that the applicant’s grandparents will not permit her to resume living in their home on her return to India.
The Tribunal notes the applicant’s claim that her grandfather is old, confined to bed and struggling with a range of ailments. While the Tribunal accepts the applicant’s grandfather is in his [age range] based on her evidence in the interview with the delegate held in December 2021 that her grandfather was [age range] at the time, and that he may suffer from some health issues, it finds her grandfather’s presence in the home would afford the applicant with a level of protection, as would her uncle’s presence in the same household. The Tribunal also notes the applicant’s evidence in the hearing that she does have the support of her family including her mother. The Tribunal finds on all the evidence before it that even if the applicant’s aunt in particular does not want her living in her grandparents’ household, the applicant’s grandparents would support her as they have done in the past and have continued to do whilst she has been in Australia. Accordingly, the Tribunal does not accept the applicant is a single or separated woman without male protection and that she faces a real chance of serious harm, including sexual assault, harassment and being targeted, abducted and trafficked to another country to engage in forced prostitution for this reason if she returns to India.
In the hearing, the applicant submitted that her status as a divorcee will make men think she is easy and they will approach her with bad intentions, with a view to sexually harassing and abusing her. She claimed that Indian society does not respect divorced/separated women because they are considered to have taken the wrong path and for this reason her life will be harder. The Tribunal does not accept that the applicant’s status as a divorcee would be generally known, although it does accept as plausible the applicant’s assertions in the hearing that people in her area, such as her neighbours, would come to know that she is no longer with her husband. However, the Tribunal does not accept the applicant’s claim that she will be required to live alone on her return to India and as such, will be susceptible to men breaking into her home and doing ‘whatever they need to do’, as she claimed in the hearing, in light of its findings above that she will be able to resume living with her grandparents. The Tribunal also does not accept the applicant’s claim that she might not get a job for this reason or if she does she will have to accept something less than what she is qualified for, be paid less and not offered promotions. Although the Tribunal accepts the applicant’s claim that she may be asked to provide her personal history when applying for employment, the Tribunal finds her assertions regarding being denied employment in India as a divorcee to be purely speculative.

The Tribunal has taken into consideration information it put to the applicant in the hearing from the DFAT Country Information Report India dated 29 September 2023 which provides that divorce can be financially and socially devastating for women, especially if they were married young as women may not have developed independent networks or life skills and may find transition to single life very difficult. It was noted that whilst the number of women who are single by choice or circumstance is rising, Indian society can be very traditional and can be hostile to the unmarried, whether they are single because of divorce or widowhood. Single women can experience stigma and stereotypes, for example perceptions of being ‘choosy, morally loose or headstrong’, according to a Delhi-based sociologist who spoke to the South China Morning Post in November 2020. While DFAT notes that the number of single women is growing, it assesses the phenomenon is emerging. DFAT also assesses that single women experience a moderate risk of societal discrimination and a low risk of official discrimination.[1] As the Tribunal put to the applicant, she is educated, having completed a [Qualification 1] and worked prior to her marriage in human resources in 2 [business type] companies in India, providing her with life skills, particularly employment skills, which will assist her in transitioning to single life. While the Tribunal accepts that the applicant may face some stigma as a divorced or single woman, it does not accept that such treatment would be of the severity to amount to serious harm. Similarly, while the DFAT report provides that single women experience a moderate risk of societal discrimination and a low risk of official discrimination,[2] the Tribunal does not accept that such discrimination reaches the standard of serious harm.
[1] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report India, 29 September 2023, at 3.133 – 3.135.
[2] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report India, 29 September 2023, at 3.135.
The Tribunal notes that the applicant claimed even if she is not seen as separated, as a young woman she will be a target for harassment and assault. The applicant provided a number of links to articles and reports detailing incidents of violence and harassment experienced by women in India. When asked in the hearing how this information was relevant to her, she claimed that she is fearful that if she stayed by herself she could be a target of such violence. The applicant claimed in the hearing that as a teenager while she was not attacked, she was approached by men or ‘guys’ in her same ‘term’. She recounted an incident when a guy on a bicycle came towards her and pushed her on her breast and ‘ran away’. The applicant also claimed that she was subjected to workplace harassment when she started working. When the Tribunal queried this, she stated a manager telling her something inappropriate such as ‘that blouse looks good on you’ or about her figure.
The Tribunal has taken into consideration the independent information that was referred to in the submission provided by the applicant’s previous representative to the Department, as well as the various reports the applicant provided to the Tribunal with respect to violence against women in India. In particular, the Tribunal has had regard to information from the DFAT Country Information Report India dated 10 December 2020, which was referred to in both the delegate’s decision, a copy of which the applicant provided to the Tribunal, and in the written submissions made by her previous representative. That report provides that traditional social practices and the low status of women in many parts of India can result in domestic and gender-based violence and despite the plethora of laws to prevent crimes against women, in practice violence against women in India continues. The report notes that violence can occur throughout the life cycle of a woman from pre-birth to infancy, childhood, adolescence and adulthood, and can include sexual, domestic and dowry-related violence.[3]
[3] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report India, 10 December 2020.
The Tribunal finds this consistent with the more recent DFAT report, which it discussed with the applicant in the hearing, that assessed violence against women is common and depends on several factors, including the family of the woman, and affects women of all socio-economic, caste and language distinctions. However, given high levels of diversity and the sheer size of the population, DFAT advised that it is difficult to give an overall assessment on women in India. Yet, generally speaking, women experience a low risk of official discrimination and a moderate risk of societal discrimination and violence. The report notes that women experience sexual harassment and violence in the street and there have been several high-profile cases of public rape in recent years. Reference is made to a 2020 report by Human Rights Watch informed by interviews with Indian women which found that sexual harassment and assault was a daily problem for many women in the workplace. The report notes that violence against women is a cultural phenomenon on which views are not necessarily divided along gender lines. For example, a social media video about a violent group assault in which a woman had her hair cut off and face painted black before being paraded in front of and assaulted by crowds went viral in January 2022. Many in the crowd who were abusing the victim were women, calling for the victim to be raped (which later occurred), illustrating how deeply culturally entrenched gender-based attitudes are in India. DFAT assessed that women experience a moderate risk of sexual harassment and assault in their day-to-day lives.[4]
[4] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report India, 29 September 2023, at 3.118 – 3.131.
The Tribunal accepts on all the information before it, including the independent information submitted by the applicant, that violence against women is a significant problem in India. The Tribunal has had regard to the assessment by DFAT that women experience a moderate risk of sexual harassment, societal discrimination and assault and violence.[5] The Tribunal notes that the use of the term moderate is in the context of DFAT being aware of sufficient incidents to suggest a pattern of behaviour.[6] The Tribunal does not accept that the existence of a pattern of behaviour necessarily indicates that the applicant faces real chance of this harm occurring. The Tribunal refers to the applicant’s evidence that prior to her marriage to her ex-husband, she attended university and worked for several years during which time she indicated she would travel home at night alone. The Tribunal notes the applicant did not suggest that she experienced any violence when travelling to and from work. The applicant referred to incidents of harassment she experienced in the past in India. While the Tribunal accepts that having inappropriate comments made about what she was wearing or her figure at her place of work or being inappropriately touched by someone riding past on a bicycle may have been upsetting to the applicant, it does not accept that such treatment is of the severity to constitute serious harm. Considering the applicant’s past experiences and the country information referred to above, the Tribunal accepts that there is more than a remote chance that the applicant may be subjected to similar harassment however it does not accept that such treatment constitutes serious harm.
[5] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report India, 29 September 2023, at 3.131.
[6] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report India, 29 September 2023, at p.7.
Having regard to the applicant’s profile, including the fact she belongs to a middle-class family and that she will be residing with family including her grandfather and uncle, the millions of women in India and the random and opportunistic nature of crimes against women such as rape, sexual assault and murder, the Tribunal finds the chance of the applicant being a victim of rape, sexual assault or stabbing remote.
Taking into consideration the applicant’s past experiences in India and the random nature of violence against women in India, including single women, as discussed by the applicant in the hearing, the Tribunal finds based on its earlier reasons above, that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will suffer significant harm from men, or even other women.
The Tribunal accepts that the applicant may face a real risk of harassment similar to what she experienced in the past in India, particularly in light of the information in the DFAT report regarding sexual harassment in the workplace. The Tribunal has considered whether sexual harassment would amount to significant harm as defined in s 36(2A). The Tribunal does not accept that the applicant will be arbitrarily deprived of her life or that she will be at risk of having the death penalty carried out on her. Nor does the Tribunal accept that such treatment can be characterised as torture as defined in s 5(1), as it does not accept that it involves severe pain or suffering taking into consideration the nature and context of the treatment and its duration. Similarly, it does not accept inappropriate comments or instances of being touched inappropriately amounts to cruel or inhuman treatment or punishment as it does not accept that such acts cause severe pain or suffering. Finally, the definition of degrading treatment or punishment in s 5(1) requires ‘extreme humiliation which is unreasonable’. The Department of Home Affairs, Complementary Protection Guidelines provides that ‘an assessment of the minimum level of severity necessary to constitute ‘extreme humiliation’ will depend on all the circumstances of a case including the nature and context of the treatment, its duration, its physical and mental effects and in some instances, the gender, age, state of health and other status of the victim’.[7] Having regard to the nature of the harassment the applicant has experienced in the past and the context, the Tribunal does not accept the level of humiliation resulting from such inappropriate behaviour would rise to extreme humiliation which is unreasonable or that the applicant would be subjected to a number of acts which would cumulatively elevate the level of humiliation to extreme. Accordingly, the Tribunal does not accept that such treatment amounts to significant harm.
[7] Department of Home Affairs, Complementary Protection Guidelines, 29 February 2020, section 3.4.6.2.
The Tribunal does not accept the applicant’s claim that she will not have male protection and will be required to live on her own and as a result face a real risk of significant harm as a young woman, single woman or a single woman without male protection. As reasoned above, the Tribunal finds that even if the applicant’s grandfather is physically incapacitated (which it does not accept is the case), the applicant will continue to have the security of her family, including her uncle, and in these circumstances, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk she will suffer significant harm.
The Tribunal notes the applicant’s evidence regarding her mental health, particularly around the time that she separated from her ex-husband. The Tribunal accepts that the applicant received assistance from a number of organisations to support her in finding accommodation and employment and that she was also referred to a psychiatrist. The applicant’s evidence in the hearing was that she attended a few sessions with the psychiatrist, and this helped her to understand the reality of her situation. The applicant did not indicate she was diagnosed with any particular condition at the time. She also confirmed that she is not currently seeing a psychologist or psychiatrist and is not on any medication. The Tribunal also accepts the applicant’s evidence regarding her feelings of stress and worry due to the uncertainty of her status in Australia and the prospect of having to return to India. However, the Tribunal does not accept such feelings meet the definition of serious harm or significant harm as it is not harm suffered because of the acts or omissions of other persons.
Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that the applicant faces a real chance of being persecuted for any of the reasons outlined in s 5J(1)(a) of the Act, including her membership of the particular social groups of young women, single women, divorced women or single women without male protection. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.
The Tribunal is not satisfied on the material before it that the applicant’s life is threatened or that she will be arbitrarily deprived of her life; that the death penalty will be carried out on her; or that she will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s 36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sydelle Muling
Member

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

[2024] AATA 4340

23 August 2024

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