2302026 (Refugee)

2302026 (Refugee) [2024] AATA 3860 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Yoko Kamada
CASE NUMBER: 2302026

COUNTRY OF REFERENCE: India
MEMBER:Jennifer Ermert
DATE:27 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 27 June 2024 at 3:10pm

CATCHWORDS

REFUGEE – protection visa – India – particular social group – divorced woman – single mother – victim of gender-based violence – forced pregnancy terminations – access to medical care – mental health issues – state protection – internal relocation – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIMA v Rajalingam (1999) 93 FCR 220
Subramaniam v MIMA (1998) VG310 of 1997

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 9 February 2023 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 5 June 2017. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations, and that they are also not members of the same family unit as such a person who holds a protection visa of the same class as that applied for by the applicants.
Applicant 1 appeared before the Tribunal on 13 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicants were represented in relation to the review.

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) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether or not the applicants are persons in respect of whom Australia has protection obligations, either because they are refugees or persons who meet the complementary protection criterion, or whether they are members of the same family unit as such a person and that person holds a protection visa of the same class as that applied for by the applicants.

Applicants’ identity and nationality

The applicants have provided certified copies of their Indian passports to the Department in connection with their protection visa applications. In the absence of evidence that the identity documents in respect of which the certified copies were provided are bogus documents as defined in s 5(1) of the Act, the delegate has accepted the applicants’ identity and country of citizenship and has assessed the applicants against India in relation to s 36(2)(a) and s 36(2)(aa) of the Act.
The Tribunal has considered the certified copies of the applicants’ Indian passports on their departmental file. With respects to Applicant 1 who attended the hearing to give evidence, the Tribunal has also had regard to her driver’s licence which was presented and sighted at the hearing. In the absence of evidence that the applicants are not who they claim to be, the Tribunal also accepts the applicants’ claimed identity and citizenship on the basis of the identity documents provided.
The Tribunal finds the applicants’ country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act is India.

Personal background and immigration history

Applicant 1 is [an age] year old woman of the [specified] caste from Haryana, India. She is one of [number] children. Her only remaining family member in India is her mother, her father and siblings having all passed away.
Applicant 1 has a [specified qualifications]. Despite these academic qualifications, Applicant 1 has had limited employment experience, having only worked for brief periods as a home-based [occupation 1] (in India) and as a casual worker at [specified businesses] (in Australia). She has otherwise been unemployed and depended on others for support.
Applicant 1 first met her former husband [Mr A] in 2005 while they were both studying at [a named college] in India. They fell in love, although Applicant 1 did not tell her family about her relationship with [Mr A] in part due to their being from different caste and religious backgrounds and in part because it was not culturally acceptable for a girl to find her own husband in a society where marriages are typically arranged by parents.
In 2007 or 2008, [Mr A] obtained a visa and came to Australia, after which he and Applicant 1 maintained contact. Whilst he was in Australia, [Mr A] arranged for a local [occupation 1] in India to act as an intermediary in proposing marriage to Applicant 1. Applicant 1’s father was against the marriage but eventually relented, which Applicant 1 believes may have been influenced by the death of her sister who had been advocating for Applicant 1 to be allowed to marry [Mr A].
Applicant 1 married [Mr A] in India [in] February 2012. The have a daughter, [named] (Applicant 2) who was born in Melbourne, Australia on [date] and who is now [age] years old. Apart from a temporary absence between [February] 2015 and [March] 2015 when she travelled to India with Applicant 1, Applicant 2 has lived all her life in Australia.
Applicant 1 first arrived in Australia to join [Mr A] [in] June 2012 as the secondary holder of a [Student] visa. Since then Applicant 1 has travelled multiple times out of and into Australia on that and two subsequent [Student] visas which were granted to her as the dependent of [Mr A].
Applicant 1’s last arrival in Australia was [in] March 2015, and she has not departed Australia since. On 11 March 2016, Applicant 1 and Applicant 2 were granted Class VC Subclass 485 Temporary Graduate visas as dependents of [Mr A].
Following her separation from [Mr A] [in] July 2016, Applicant 1 made an application for the grant of a Class XA Subclass 866 protection visa on 5 June 2017 and included Applicant 2 as a dependent applicant. [In] February 2018, Applicant 1 and [Mr A] divorced after their marriage was dissolved by court order.
On 6 December 2022, Applicant 1 attended an interview with the Department in connection with her protection visa application. On 9 February 2023, the delegate decided to refuse to grant Applicant 1 and Applicant 2 protection visas. It is those decisions which are now the subject of review.
The Tribunal accepts each of the above matters to be true.

Protection claims

Applicant 1 has made very detailed claims in support of her protection visa application. The claims are described comprehensively in the delegate’s decision record which the Tribunal does not repeat here, other than to provide a summary.
In essence, Applicant 1 started suffering from family and domestic violence almost immediately after she married [Mr A] and moved in with his family. She was shouted at by [Mr A’s] father for no apparent reason, which [Mr A] simply acquiesced without doing anything to intervene. After she joined [Mr A] in Australia in June 2012, she found him to be always ill-tempered and he frequently abused her verbally, emotionally, psychologically, physically, sexually and financially, including during her pregnancies.
Applicant 1’s first pregnancy ended in miscarriage when [Mr A] forced her to travel to India very late in her third trimester because he did not want her to give birth in Australia due to concerns it would cost him a lot of money. Her second baby was born prematurely after [Mr A] forcibly had sex with her and her waters broke, and the baby died [just] after birth. She managed to keep and deliver her third baby (Applicant 2) despite [Mr A’s] unhappiness because he did not want the baby, and [Mr A] frequently became enraged by Applicant 2’s crying which led to further abuses of Applicant 1.
When Applicant 2 was about [age] old, [Mr A] took her and Applicant 1 back to India but he purchased only one-way tickets for them. He returned to Australia alone without any explanation and refused any attempt from Applicant 1 to contact him, which forced Applicant 1 to sell a gold bracelet to fund Applicant 2 and her own return to Australia. [Mr A’s] myriad of abuses and violence towards Applicant 1 continued after this, including forcing Applicant 1 to terminate 2 further pregnancies. He also manipulated and abused Applicant 1 psychologically with threats to kill himself, threats to have her visa cancelled, and/or threats to have Applicant 2 taken away from her.
Despite all the abuses and violence Applicant 1 suffered at the hands of [Mr A], she did not leave him because of fear and shame and because she desperately wanted their marriage to work. In July 2016, following a particularly bad argument in which [Mr A] severely beat Applicant 1 and the police became involved, Applicant 1 finally left [Mr A]. [In] August 2016, Applicant 1 was granted an Intervention Order against [Mr A], although the court also granted [Mr A] a cross application due to counter allegations [Mr A] made against her.
Applicant 1 claimed to fear harm in India from either [Mr A] who has abused her for years, or from [Mr A’s] family who she claimed has tried to kill [Mr A’s] sister-in-law. She would not be able to get protection from the police who do not protect women and who are easily bribed. She could not avoid the feared harm by relocating to another part of India because as a divorced woman and a single mother, she would be regarded as a prostitute and she and Applicant 2 could end up homeless. Both she and Applicant 2 also have a number of health issues for which she fears they would not be able to receive appropriate medical treatments and care in India.
At the primary stage, the delegate accepted that Applicant 1 has experienced domestic violence from [Mr A] in Australia, but took issue with the extent of her claimed fear of harm because she did not apply for the grant of a protection visa until 5 June 2017. In any event, the delegate did not accept Applicant 1 would be threatened or harmed by [Mr A] or his family specifically or, as a divorced single mother, by the wider community generally if she returned to India.
The delegate found that, having divorced Applicant 1 in 2018 and remarried since, [Mr A] has moved on with his life and has no ongoing adverse interest in Applicant 1. The delegate found Applicant 1 would be able to find work in India to support herself and Applicant 2 because of her work history and qualifications as well as her resilience and resourcefulness which the delegate found was demonstrated by her ability to link legal and social services to obtain assistance following her separation and divorce from [Mr A]. The delegate concluded that whilst Applicant 1 would experience some discrimination in India because of her profile as a divorced woman and a single mother, the discrimination is not so severe as to constitute serious harm, and she could access family support while she resettled in India.
Insofar as Applicant 2 is concerned, the delegate did not accept that she would be harmed in India by her father [Mr A] or his family, nor did the delegate accept that she would be harmed by the wider community as a female child without male protection. The delegate found that given her young age, Applicant 2 would be able to overcome any initial challenges and adjust to life in India without undue difficulty.
Finally, the delegate found that neither Applicant 1 nor Applicant 2 satisfied the complementary protection criterion because the delegate did not accept that the applicants were at real risk of significant harm as a necessary and foreseeable consequence of their removal to India. To the extent that the medical treatments which the applicants need may not be as advanced in India as they are in Australia, the delegate found that they are nonetheless available and accessible that the applicants could not be said to be at real risk of significant harm for want of adequate healthcare.

Claims before the Tribunal

The applicants continue to rely on their previous claims before the delegate and made the following submissions in rebuttal of the delegate’s findings:
·The delegate unreasonably found the applicants’ delay in making a protection visa application raised concerns for the genuineness of their claimed fear of harm without considering the applicants’ particular circumstances.
·The delegate failed to consider the applicants’ claims cumulatively and whether their particular circumstances and vulnerability means that a lessor form of physical and mental harm would be sufficient to meet the serious harm/significant harm threshold.
·The delegate made certain findings of fact which are not, or do not appear to be, supported by country information and/or relevant reasoning.
In addition, the applicants made submissions that more recent country information for India overwhelmingly indicates that they would face an increased risk of harm, either individually or cumulatively, at the hands of [Mr A] and/or his family and the community due to their status as a single mother and a young girl without male protection, limited support from Applicant 1’s family, and their specific vulnerabilities arising from their mental ill health and age. The state protection offered by India is inadequate, and relocation both internally and to Nepal are neither safe nor reasonable in the sense of being practicable having regard to the applicants’ profiles and circumstances.
At the hearing, the tribunal and Applicant 1 discussed aspects of her claims, in particular the extent and nature of any contacts or interactions with [Mr A] since their separation and divorce; the basis for her ongoing fear of harm for herself and Applicant 2 and the cause or source of such harm; the viability of relocation both internally and to Nepal; and what steps, if any, she has taken to avail herself of the right to enter and reside in Nepal. The Tribunal found Applicant 1’s responses to its questions to be often vague and limited in detail, albeit being consistent with the claims and evidence she has previously provided including to the Department. Notwithstanding this, the Tribunal does not consider this impugns the credibility of Applicant 1’s claimed need for protection, for reasons which the Tribunal discusses below.
Following the hearing, the applicants made further submissions through their legal representative. The Tribunal does not repeat the content of the submissions here given their detailed nature, other than to note that the submissions address and expand on the issues the Tribunal discussed with Applicant 1 at the hearing. Applicant 1 also provided a professionally translated statement to the police made by her former husband [Mr A’s] second wife [Ms A] who he married after their divorce, which details her rape at the hands of [Mr A’s] brother [Brother A] and verbal abuse from [Mr A’s] mother. The statement was provided to Applicant 1 by her former sister-in-law and [Brother A’s] ex-wife [Ms B] who Applicant 1 is still in touch with, as a warning to Applicant 1 of the risk of harm she could face if she returned to India.

REASONS FOR THE DECISION

For the reasons which the Tribunal discusses below, the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration because the Tribunal finds the applicants to be persons in respect of whom Australia has protection obligations.

Assessment of refugee status

To be eligible for the grant of protection visas on the basis of satisfying the refugee criterion in s 36(2)(a), the applicants must show they have a well-founded fear of persecution in India, and owing to that fear, are unable or unwilling to avail themselves of the protection of India. This requires an assessment of whether there is a real chance that the applicants would be seriously harmed in the reasonably foreseeable future if they returned to India because of their race, religion, nationality, membership of a particular social group or political opinion.
A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
For convenience, the Tribunal will address the issue with respect to the applicants’ delay in making the protection visa applications first.

Unlike the delegate, the Tribunal does not consider the delay to be unreasonable or demonstrative of a lack of genuine fear when the applicants’ circumstances are considered in their entirety. Whilst the Court in Subramaniam v MIMA (1998) VG310 of 1997 did hold that delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant, the Court also stated that each case must turn on its facts. In this case, the Applicant 1 came to Australia, which was at the time a completely new and unfamiliar country, as a dependent of her former husband [Mr A]. Whilst she did remain with [Mr A] for 4 years until their separation in July 2016 despite his persistent abuse, her failure to leave him straight away could be explained by a variety of reasons which included her love for him, her desire for their marriage to work, her desire for her daughter Applicant 2 to have a complete family, cultural expectations, and her dependence on him for food, clothing and shelter. The Tribunal considers Applicant 1’s circumstances to be comparable to other victims of domestic violence who remain with their abusive partners for similar reasons, but the tolerance of the abuse does not mean that the fear is not genuine.
Furthermore, as Applicant 1’s representative submitted, the further delay until June 2017 in lodging the protection visa application was entirely understandable in circumstances where Applicant 1 found herself as the sole carer of Applicant 2 and in circumstances where she was in financial hardship following her separation from [Mr A], and had to rely on the [named local] Council for assistance over a prolonged period. Applicant 1’s daily struggles to survive in combination with the difficulty associated with navigating the protection visa application process until she received [funded] immigration assistance provided, in the Tribunal’s opinion, a reasonable justification for the further delay and that it did not in any way undermine or negate her claimed fear of harm.
As for the claims and evidence Applicant 1 advanced for herself and Applicant 2, as the Tribunal observed earlier, her evidence and testimony during the hearing was often vague and limited in detail. However, the Tribunal does not find this to be indicative of a lack of credibility on her part. The Tribunal notes that the general tenet of Applicant 1’s evidence and oral testimony has remained consistent with her written claims and submissions throughout, and the Tribunal accepts based on the medical record from [Health Service 1] and the prescription for antipsychotic medication provided by Applicant 1 that the brevity of her oral testimony was due to her mental ill health and psychological vulnerability. The Tribunal accepts that Applicant 1’s conditions are attributable to the horrific trauma she suffered during the course of her marriage to her former husband [Mr A] and that they have directly affected her psychological stability and cognitive function, which in turn have affected her ability to recall information and events and to recount them articulately and coherently.
Moreover, the Tribunal notes Applicant 1’s visible sadness and elevated level of anxiety when asked questions about her former husband [Mr A] and her fears of what she believes might happen to her and Applicant 2 if they were required to return to India. In view of all of the above, the Tribunal finds Applicant 1’s claimed fear of harm is both genuinely held and plausible. The question, therefore, is whether or not her fears are objectively well-founded because there is a real chance that she and her daughter Applicant 2 would suffer serious harm due to one or more of the enumerated reasons, now or in the reasonably foreseeable future, if they were to return to India.
The Tribunal notes that [Mr A] has remarried after his divorce from Applicant 1. The Tribunal also notes that [Mr A] has had limited contact with both applicants since his separation and divorce from Applicant 1, even though there is no longer an IVO in place in relation to [Mr A].
In the post-hearing submissions, Applicant 1’s representative conceded the lack of contact from [Mr A] or his family over the last 4 years, but submitted it is conceivable that Applicant 1’s fears have not abated due to the passage of time because of the highly traumatic nature of her experiences, and that her fears have in fact intensified after learning about the mistreatment that [Mr A’s] second wife [Ms A] suffered from [Mr A’s] immediate family members, in particular his brother [Brother A]. The representative also submitted that whilst Applicant 1’s evidence with respect to the inquiries that [Mr A’s] family allegedly made about her to her neighbours in India was based on hearsay, the evidence should be accepted as plausible in the circumstances and not be rejected on the basis of an unreasonably high standard of proof.
For the avoidance of doubt, the Tribunal accepts Applicant 1 continues to hold fears of harm from [Mr A] despite the limited contact since the divorce because of her past experiences. The Tribunal also accepts that Applicant 1’s fears extend to fears of his immediate family members because of her own past disrespectful treatment by [Mr A’s] father who yelled at her for no apparent reason, and because of the more recent news in relation to the rape of [Mr A’s] second wife [Ms A] by [Mr A’s] brother [Brother A].
The Tribunal notes, however, that these incidents occurred while Applicant 1 and [Ms A] were respectively living in [Mr A’s] family’s household. Therefore, this raises a question whether there is a real chance that Applicant 1 would suffer mistreatment amounting to serious harm in circumstances where she has divorced [Mr A] and in circumstances where she would not be expected to reside in his family’s household if she returned to India.
The Tribunal has considered Applicant 1’s claim with respect to the ongoing harassment that her former sister-in-law [Ms B], who she still has contact with and who gave her a copy of [Ms A’s] statement to the police, is said to have suffered despite her own divorce from [Mr A’s] brother [Brother A]. In the absence of evidence that would cause the Tribunal to disbelieve this claim, the Tribunal accepts [Ms B’s] continued harassment following her divorce from [Brother A] as true. Relevantly, the Tribunal finds [Ms B’s] experience provides a basis for drawing an inference that there is a real chance, in the sense that it is not remote or far-fetched, that Applicant 1 could experience similar harassment if she returned to India despite her divorce from [Mr A].
Further, although the claim that [Mr A’s] family has inquired about Applicant 1 to her neighbour, suggesting a possible ongoing adverse interest, is not backed by empirical evidence, it cannot be discounted entirely. In circumstances where the Tribunal is unable to make a finding with respect to a material claim with confidence, it must proceed on the basis that the claim might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220.
Moreover, in assessing the question of ‘real chance’, the Tribunal has considered the broader cultural and social context in India where Applicant 1 fears the harm would occur. The latest DFAT Country Information Report for India dated 29 September 2023 paints a bleak picture for the situation of women in India:
“Significant parts of Indian society remain conservative and patriarchal, intersecting with rural/urban divide, caste, religion and socioeconomic status…. Girls are often traditionally valued less than boys, and women in poor households may experience less access to food, education resources or sanitation facilities than male members of the household.
There are signs of progress and reform, and women are becoming increasingly visible and assertive, particularly among younger generations. For example, the gap between the number of women versus the number of men voting in elections has closed, and more women than men voted for the first time in the 2019 federal election. Many universities are seeing increased female enrolment, and some have more female than male students. Political parties are recognising the need for social policies that serve and include women.
While women as a group tend to be disadvantaged in society, caste and wealth tend to play significant roles. For example, sources told DFAT that support for women’s equality was often higher among privileged, upper-caste Hindus compared to other castes.
Given high levels of diversity and the sheer size of the population, it is difficult to give an overall assessment on women in India. Generally speaking, and noting the below subsections, women experience a low risk of official discrimination and a moderate risk of societal discrimination and violence.
Women experience sexual harassment and violence in the street. While the practice is sometimes known as ‘eve teasing,’ that term is reductive: the ‘teasing’ can involve serious sexual assault or homicide. There have been several high-profile cases of public rape in recent years. Occurrences of harassment or violence towards women may stem from attitudes that women are ‘asking for it’ because of their clothing or because they are in public unaccompanied by a male family member, for example.
Some women report feeling unsafe using public transport to get to work, which can act as an economic barrier, either because of their own fears or because male members of the household will not allow them to go out to work because of fear of violence. Similarly, fear of violence can act as a barrier to women enjoying public spaces for leisure or social activities.
A 2020 report by Human Rights Watch informed by interviews with Indian women found that sexual harassment and assault was a daily problem for many women in the workplace. Women from lower socio-economic environments reported that it is better to ‘just ignore’ harassment, which many consider ‘trivial’, because of fears of loss of jobs or income. The 2020 Human Rights Watch report, and others, have found that sexual harassment laws were not well-enforced or not well understood either by victims or police.
One of the most well-known incidents of violence occurred in 2012 when Jyoti Singh was gang raped in a private bus and left for dead after she went to a movie with an unrelated male. She later died from extensive injuries. Massive protests over violence against women followed. The incident is seen by activists as a turning point for the women’s rights movement in India, as it brought attention to the issue of violence against women in a way that previous incidents had not. Four men were sentenced to death following nationwide outrage over the Singh case, however such sentencing should not be considered to be reflective of normal practice.
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. The video caused nationwide outrage, including against the women in the crowd. Twelve people, including eight women, were arrested in connection with the rape and assault of the victim.
Traditional social practices and the low status of women in many parts of India are linked to domestic and gender-based violence. Child marriage is illegal but continues, particularly in rural India. The illegal yet common tradition of a bride’s family needing to pay a dowry can lead to female infanticide, sex-selective abortions and dowry-related harassment and deaths (women murdered or driven to suicide in response to the attempt to extort a higher dowry). Available data likely understates the true extent of violence against women due to underreporting of cases.
‘Honour killings’ occur when families feel that the honour of their family is jeopardised, often where a woman’s virginity or ‘marriageability’ is ‘lost’, for example. Such violence may also occur when women seek to divorce or separate from an abusive husband. Honour killings can occur regardless of age, religion, social status, wealth or other factors – the risk is particular to each individual victim and their families.
Acid attacks are a subset of ‘honour’ violence that includes assaults or homicides in which acid is thrown on a person over issues of perceived shame or honour, unrequited love or rebuffed marriage demands or dowry disputes. Both men and women can be victims, but the crime is more commonly targeted at women. Survivors can experience life-long disfigurement and sometimes pain and disability. It is difficult to comment on the prevalence of the crime; attacks are likely underreported, and some sources suggest the number of attacks might be growing, with perhaps two or three hundred reported attacks a year.”[1]
[1] DFAT Country Information Report – India (29 September 2023), Department of Foreign Affairs and Trade, [3.114]-[3.125].
In relation to single women specifically, DFAT reported:
Being (and remaining) a single woman in India is difficult and relatively uncommon. Marriage is a central feature of social lives and, without a husband, social access is difficult. Sources told DFAT that it is difficult or impossible for single people (men or women) to rent accommodation, even in large cities. The difficulty is worse in rural areas. A woman who is uninterested in marriage would likely come under significant pressure from her family to marry, usually to a husband of her parents’ choosing, which may be for cultural reasons or out of concern for their daughter’s welfare.
Divorce can be financially and socially devastating for women, especially if they were married young. Women may not have developed independent networks or life skills, and may find transition to single life very difficult. Often, the husband is the breadwinner (women’s participation in the workforce is very low) and his death or the termination of marriage can be financially devastating. This particularly affects women whose husbands initiate the divorce and provide no income support. In many cases, such women would be unable to rely on the support of their biological family, which is the traditional form of social welfare in India.
.…….
The number of women who are single by choice or circumstance is rising, however Indian society can be very traditional and can be hostile to the unmarried, whether they are single because of divorce or widowhood. Single women can experience stigma and stereotypes, for example perceptions of being ‘choosy, morally loose or headstrong’, according to a Delhi-based sociologist who spoke to the South China Morning Post in November 2020. The Print, an Indian online newspaper, noted a ‘growing subculture’ of single women as characters in books and movies or within organisations, in July 2019. DFAT notes that the number of single women is growing, however assesses the phenomenon is nascent. DFAT assesses that single women experience a moderate risk of societal discrimination and a low risk of official discrimination.”[2]
[2] DFAT Country Information Report – India (29 September 2023), Department of Foreign Affairs and Trade, [3.132]-[3.133] and [3.135].
It is clear from the DFAT Country Information Report that with the exception of women from privileged upper castes and wealthy families, women in India in general are subjected to deeply and culturally entrenched gender-based discrimination which results in their significant socio-economic disadvantage and frequent mistreatment with apparent impunity.
In the present case, although Applicant 1’s former husband [Mr A] has made limited contact with her since their divorce and despite there not being a current IVO in place, it is conceivable that this is attributable to lower tolerance in Australia for gender-based violence and [Mr A] being aware of the likely consequences if he was to resume contact and harassment of Applicant 1. On the other hand, if Applicant 1 and her daughter Applicant 2 were to return to India, even if they do not return to [Mr A’s] family’s household, it is not far-fetched to imagine [Mr A] and/or his family engaging in ‘revenge’ harassment or serious mistreatment of Applicant 1 and maybe even Applicant 2, without being held accountable for their actions. The Tribunal considers that the collective experiences of Applicant 1, her former sister-in-law [Ms B], and [Mr A’s] second wife [Ms A], are indicative of the family (including [Mr A’s]) attitude and disdain towards women that they give rise to a reasonable apprehension of real chance of serious harm in the reasonably foreseeable future.
Even if the Tribunal was wrong about the real chance of [Mr A] and/or his family members harassing and mistreating Applicant 1 and/or Applicant 2, the Tribunal considers there remains a real chance that they would be seriously harmed by the community in the reasonably foreseeable future if they returned to India, which is exacerbated by their particular vulnerabilities in the form of mental illness and other health issues. Given country information about the discriminatory attitude and treatment of women and girls generally and single women specifically, the Tribunal finds that as a divorced single mother and as a young girl (respectively) without male support and protection, particularly in circumstances where both Applicant 1’s father and brother have also passed away, there is a real chance that Applicant 1 and Applicant 2 would suffer harm of the kind reported in the DFAT Country Information Report, and that such harm involves serious harm within the meaning of s 5J(5) of the Act.
In reaching this conclusion, the Tribunal notes its disagreement with the delegate’s finding that Applicant 1 would have no difficulty re-establishing and supporting herself in India because of her demonstrated resilience and resourcefulness (in Australia) and her educational qualifications and work experience. The Tribunal considers that such a finding ignores the fact that Applicant 1 has had to rely on charity (even if not exclusively) to survive and look after Applicant 2 since her separation from [Mr A]; the fact that she has very little relevant recent work experience despite her tertiary qualifications; and the fact that her capacity for employment is impacted by her mental ill health. The Tribunal also notes that whilst it may be possible for Applicant 1 and Applicant 2 to reside with Applicant 1’s mother as the delegate has found, it only addresses the issue of housing and shelter without resolving the other barriers caused by gender-based discrimination and mistreatment amounting to serious harm that the applicants might face.
The Tribunal also notes, and accepts, the representative’s submissions that if Applicant 1 is forced to leave Applicant 2 unattended for a prolonged period of time because she has to go to work, or because she has to go to hospital (due to her ill physical and mental health), or because she has been injured or killed a result of gender-based violence, it would significantly increase the risks of Applicant 2 being targeted for gender-based violence, including child abuse.
In summary, and having regard to all of the applicants’ circumstances individually and cumulatively, the Tribunal is satisfied there is a real chance that the applicants would suffer serious harm in the reasonably foreseeable future from either or both [Mr A] and/or his family and the community, if they returned to India.

Essential and significant reason for persecution

For the applicants to meet the definition of refugee, it is not sufficient for the Tribunal to be satisfied that they face a real chance of serious harm amounting to persecution; the Tribunal must also be satisfied that the real chance of serious harm is for reasons of their race, religion, nationality, membership of a particular social group or political opinion (s 5J(1)(a)), and that the reasons are the essential and significant reasons for the persecution (s 5J(4)(a)).

Applicant 1 has claimed, through her representative, that she fears serious harm for reasons – individually or cumulatively – of her membership of the particular social groups variously described as:
·    Women in India.
·    Separated women in India without male protection.
·    Single mother in India.
·    Women with mental health issues.
·   Women in India who are perceived to be immoral because they choose their own husband and their marriage fails.
In addition, Applicant 1 has claimed that she fears her daughter Applicant 2 would suffer serious harm for reasons – individually or cumulatively – of her membership of the particular social groups various described as:
·    Girls/female children in India.
·    Female children to single mothers in India.
·    Female children without fathers or male protectors in India.
Section 5L of the Act provides that for a person to be treated as a member of a particular social group, the person must share or be perceived to share a characteristic (other than a fear of persecution itself) that is common to each member of the group. In addition, the characteristic must be an innate or immutable characteristic, or be a characteristic fundamental to the member’s identity or conscience that the member should not be forced to renounce it, or be a characteristic that distinguishes the group from society.
Turning to the first nominated particular social group for Applicant 1 of ‘Women in India’, the Tribunal accepts that Applicant 1 is a member of that particular social group because she shares with other members of the group the common characteristic of being a woman (in India), and that the characteristic of womanhood is innate and immutable. The Tribunal also accepts that Applicant 1 is a member of the other nominated particular social groups, because the characteristics of being ‘Separated women in India without male protection’ etc. which she shares with other members of those groups are characteristics that distinguish the groups from society.
The Tribunal has considered whether Applicant 1’s membership of the nominated particular social groups is the essential and significant reason for the serious harm she has a real chance of suffering from her former husband [Mr A] and/or his family specifically, or from the Indian society generally. The Tribunal accepts on the basis of the country information reported by DFAT in relation to the deeply and culturally entrenched discrimination towards women and the widespread acceptance of gender-based violence in India that Applicant 1’s membership of the nominated particular social groups is the essential and significant reason for the serious harm she fears.
Similarly, the Tribunal accepts that Applicant 2’s characteristic of being a girl/female child is an innate and immutable characteristic shared with other ‘Girls/female children in India’, and that her characteristic of being a ‘Female child to a single mother without a father or other male protector’ is something that distinguishes her and other girls sharing the same characteristic from society. Further, for the same reasons that the Tribunal is satisfied on country information that her mother Applicant 1’s membership of the particular social groups of ‘Women in India’/‘Separated women in India without male protection’/etc. is the significant and essential reason for the real chance of serious harm that she faces in the reasonably foreseeable future on return to India, the Tribunal is satisfied that Applicant 2’s membership of the particular social groups of ‘Girls/female children in India’ etc. is the significant and essential reason for the real chance of serious harm that she faces.

Relocation

Having determined that the applicants face a real chance of being seriously harmed in the reasonably foreseeable future if they returned to India for the essential and significant reason of their membership of the particular social groups of, respectively, ‘Women in India’ etc. and ‘Girls/female children in India’ etc., the Tribunal has considered whether the real chance of the applicants being seriously harmed could be reduced through relocation: s 5J(1)(c).
The Tribunal accepts the submissions made by the applicants’ representative that it is not possible for the applicants to relocate within India to avoid the real chance of serious harm. Whilst it is theoretically possible that the real chance of serious harm posed by [Mr A] and/or his family specifically could be reduced or removed through relocation to somewhere other than Haryana, the Tribunal accepts that relocation elsewhere does not address the real chance of serious harm posed by the society generally, given the problem of gender-based discrimination and mistreatment of women in India is widespread and is not limited to Haryana. The Tribunal also accepts the representative’s submission that the real chance of serious harm the applicants face might even increase in other parts of India where the applicants may not be familiar with the local culture, language or geography. In so doing, the Tribunal has also had regard to the barriers for single women reported by DFAT, and notes that the UK Home Office report has similarly highlighted the difficulty of relocation for single Indian women:
“Relocation within India of single women, women with children or victims of familial crime was reported to be difficult because of the need to provide details of their husband’s or father’s name to access government services and accommodation. Single women face difficulties in accessing housing.”[3]
[3] UK Home Office, ‘Country Policy and Information Note India: Women fearing gender-based violence’, version 2.0, July 2018.
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. Section 36(4), however, provides that s 36(3) does not apply in relation to a country in respect of which the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, etc.; or the Minister has substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in s 36(3), there would be a real risk that the non-citizen will suffer significant harm in relation to that country.
Accordingly, having found that internal relocation within India is not possible, the Tribunal has considered whether, pursuant to the Indo-Nepal Treaty of Peace and Friendship which enables Indian nationals to freely move to Nepal (and vice versa), relocation to Nepal is a possible alternative to internal relocation for the applicants.
The latest DFAT Country Information Report in relation to Nepal, dated 1 March 2024, reports the following in relation to women:
“The 2015 Constitution prohibits discrimination based on gender in relation to inheritance and government employment and allows for ‘positive discrimination’ to establish special opportunities in education, health, employment, and social security. The 2015 Constitution prohibits physical, mental, sexual, and psychological violence against women and establishes the right to compensation for such violence. These rights are not always respected in practice.
……
Gender-based violence (GBV) is a significant problem in Nepal. Research suggests around one in four Nepali women experience GBV in their lifetime. According to the UN, violence disproportionately affects women and girls in Nepal who face multiple forms of discrimination based on disability, caste or ethnicity, limiting their access to protection, treatment, and justice. Societal attitudes towards the acceptability of domestic violence vary by individual, family and community, and people with higher levels of education or socioeconomic status are not necessarily less tolerant of domestic violence.
In-country sources told DFAT that in some cases families were a source of protection and support, while in others they were a barrier. Some families pressure women to stay in abusive relationships to avoid ‘shaming’ the family. DFAT is aware of cases where families have physically intervened to prevent women reporting domestic violence or testifying against abusers in court. Geography is another barrier: a woman from a remote community might have to walk as much as two or three days to reach a district court, rendering it inaccessible.
Domestic violence is criminalised under the Domestic Violence (Offence and Punishment) Act (2009). The law includes provision for interim protection orders and includes penalties of up to NPR 25,000 (AUD 300) and/or six months in prison. Police operate ‘women’s cells’ (police units, not prison cells) in police stations in all districts, which are staffed by female police officers to facilitate reporting of crime by women. In-country sources told DFAT that police generally took reports of GBV seriously, however they often emphasised reconciliation over women’s safety and punishment of offenders, demonstrating a lack of training and capacity in practice. Judges sometimes hold chauvinistic attitudes, for instance believing it is acceptable to ‘slap your wife if she disobeys you,’ again demonstrating a lack of training and capacity in practice.
Domestic violence shelters run by NGOs exist in small numbers in some districts. They are often limited to 45 days of residence, and women are sometimes forced to return to abusive home situations due to a lack of options. Many women lack financial independence and are reluctant to seek help because of the risk to their security and livelihoods. Shelters sometimes offer livelihoods training. In-country sources told DFAT that abusive relationships often ended in divorce. Abusers are sometimes jailed; some flee to avoid justice. The ability to relocate to escape an abusive relationship depends on a woman’s wealth, family, and friendship networks, and whether she has dependent children.
Acid attacks have occurred against women in Nepal. Reports have become less common following the passage of the Acid and Other Harmful Chemicals (Regulation) Ordinance (2020), which prescribes up to 20 years in prison for offenders. Hot oil attacks have also occurred. Acid attack survivors receive state support for rehabilitation, but hot oil survivors do not. Both face ongoing stigma.
Rape is illegal, including within marriage, and punishable by up to five years in jail. The definition of rape is consent-based. The age of consent is 18, and no consideration is given to the age of consenting sexual partners under 18. As a result, young men are vulnerable to imprisonment for statutory rape, even when they are married to their (consenting) partners. Only men can be charged with rape, and rape against men is not a recognised offence. Sexual harassment – defined as unwanted sexual touching or teasing or annoying ‘with sexual motive’ – is also illegal.
Poor and lower-caste women and girls, as well as those living with a disability, are particularly vulnerable to rape and sexual abuse, especially Dalit women. In September 2020, a 12-year old Dalit girl in Bajhang was reported to be raped and murdered by an upper-caste man, who was arrested. A similar case involving a 13-year old Dalit girl in Rupandehi, also in 2020, was ruled initially ruled a suicide, but the perpetrator was later arrested and sentenced for murder.
Societal and structural barriers exist to the reporting and effective prosecution of rape. In 2022, the statute of limitations for rape was extended from one to two years; many observers argue it should be removed entirely. A culture of victim blaming exists. In-country sources told DFAT it was particularly difficult for rape survivors to pursue allegations against powerful or well-connected perpetrators, because of their ability to influence the judiciary and sway public opinion. A woman who accused the captain of the national cricket team of rape in 2022 experienced online harassment and death threats, and had rocks thrown at her in the street. She is reported to have left Nepal as a result. After multiple delays, the cricket player was found guilty in December 2023 and sentenced to eight years prison; his lawyers have said he would appeal.
Police do not always take reports of rape seriously. For instance, in January 2018, Durbar Marg police reportedly refused to register a first information report from a survivor of gang rape, instead pressuring her to sign a ‘reconciliation paper’ with the perpetrators. In-country sources told DFAT Nepal Police were becoming more responsive to rape allegations.
The practice of ‘chaupadi’, in which women are expelled from their homes during menstruation and sometimes after childbirth, persists in some families and communities. Women and girls are sent to sheds outside the property where they are sometimes exposed to extreme temperatures, vulnerable to wild animals, and expected to engage in manual labour with limited access to food and fresh water. The practice is illegal and can result in three months imprisonment or a fine. The practice is most common in rural areas in the west, but taboos about menstruation also persist in urban areas. Chaupadi may be known by different names including chhue, bahirhunu, chaukulla or chaukudi, depending on the district.
Women are sometimes harmed or killed on accusation of witchcraft. Reports of witchcraft most often relate to the onset of sickness or death amongst people or animals and are more common among the poor and especially among Dalits. According to Nepal Police statistics, there was a total of 61 cases of witchcraft accusations and subsequent torture in 2020-21 (an increase of almost 80 per cent), at the height of the COVID-19 pandemic. Accusing or assaulting a woman on the basis of witchcraft is illegal under the Anti-Witchcraft (Crime and Punishment) Act (2015) and punishable by up to five years in prison and a NPR 50,000 (AUD 600) fine.
…………
DFAT assesses that women in Nepal face a moderate risk of official and societal discrimination in the form of discriminatory laws and cultural practices. DFAT assesses that women face a moderate risk of GBV. DFAT assesses that widows, poor women, and women from lower-caste backgrounds, especially Dalits, face higher risks. State protection exists, but its effectiveness varies.” [4]
[4] DFAT Country Information Report – Nepal (1 March 2024), Department of Foreign Affairs and Trade, [3.75], [3.78]-[3.88], [3.92].
The Tribunal considers on the basis of this country information that relocation to Nepal would not be a viable option for the applicants, given the real chance of gender-based serious harm that they face as a single divorced mother and a young girl with mental ill health and other issues, and without male support or protection. The Tribunal also considers that the risks faced by the applicants would be exacerbated by their lack of cultural and other connections in Nepal, as well as their status as Indian nationals, having regard to various articles that report deteriorations in Indo-Nepal relations over border disputes.[5]

State protection

[5] See, for example, DB Subedi and B Timilsina, ‘Border disputes between India and Nepal – will India act as a responsible rising power?’, Australian Institute of International Affairs, 8 January 2021; K Amatya, ‘Anti-Indian Sentiments in Nepal’, Modern Diplomacy, 29 May 2023; P Shrestha, ‘India is ‘bad boy’ in Nepali media coverage, says think tank report’, StratNews Global, 7 November 2023.

Next, the Tribunal has considered whether in the alternative, the applicants could remove or reduce their real chance of serious harm in India through effective state protection: s 5J(2). In this regard, the Tribunal notes that state protection for women in India appears to be both inadequate and ineffective:
“The Protection of Women from Domestic Violence Act 2005 (PWDVA) was enacted to provide more effective protection for female victims of any kind of violence occurring within the family, including physical, verbal, emotional, economic and sexual violence. The PWDVA defines domestic violence as any act, omission or commission or conduct of the respondent, which includes threat or actual abuse. In practice, cultural factors prevent women from reporting violence and police may not be effective in providing state protection (see Police), and may take no action or may encourage the parties to reconcile. Marital rape is not a crime in India, a matter being considered by the Supreme Court as at the time of publication.
There are women’s police desks and women’s police stations where women can report violence. These include ‘one stop’ centres throughout the country that are designed to offer a range of services to victims (legal, accommodation or medical services, for example) in addition to police assistance. These do not necessarily mean that protection is available (or even that a women’s police station will be staffed by a female officer), or that reports will be actioned by police effectively. Sources told DFAT that police sometimes tell couples to reconcile after violence and will not take any further action.
Media reports and some initial academic studies point to greater rates of domestic violence during COVID-19 lockdowns based on increased calls for help to domestic violence hotlines. Support workers told Indian media outlets that victims were trapped inside with their abusers. Many women did not report abuse because of privacy concerns or fears that things would get worse if they complained, according to activists who spoke to Indian online newspaper, The Print, in February 2021.
The PWDVA requires states to provide shelters, counselling services and legal aid to survivors of domestic violence; however, in practice the quality and availability of services are limited. Some shelters are relatively good, however others are overcrowded and unhygienic. A 2017 report by NGO Open Democracy described conditions as ‘unhygienic’ and ‘jail-like’. The same report points to stigma with residents sometimes seen as ‘immoral’ or ‘deviant’. One source told DFAT that shelters are a ‘place of neglect and misery’, and mentioned the use of ‘psychiatric medicines’ on residents without consent.
According to media reports from 2018, some shelters in Delhi and Bihar were investigated for their poor conditions. Allegations included claims that women were subjected to forced abortions, locked up without access to exercise and fresh air and in some cases raped. The allegations were investigated and senior government officials admitted that there may be more cases than initially reported. Whether or not conditions improved as a result of investigations is not clear.
Violence against women is a significant problem in India and state protection is often inadequate. Sources told DFAT that police commonly refuse to register cases or investigate claims of violence, including violence that results in grievous bodily harm or death. DFAT assesses violence against women is common, and depends on several factors, including the family of the woman. Violence against women affects women of all socio-economic, caste and language distinctions. DFAT assesses that women experience a moderate risk of sexual harassment and assault in their day-to-day lives.”[6]
[6] DFAT Country Information Report – India (29 September 2023), Department of Foreign Affairs and Trade, [3.126]-[3.131].
The Tribunal is satisfied based on this country information that s 5J(2) of the Act does not apply to the applicants.

Behaviour modification

Finally, the Tribunal has considered whether the applicants could take reasonable steps to modify their behaviour so as to avoid the real chance of persecution in India, other than behaviour modifications that would conflict with a characteristic that is fundamental to their identity or conscience, conceal an innate or immutable characteristic, or require them to do one of the things specified in s 5J(3)(c). The Tribunal is satisfied on the factual circumstances of this case that there is no behaviour modification that the applicants could reasonably adopt; they cannot change the fact that they are a woman and a girl in India, or the fact that Applicant 1 has been a victim of domestic and family violence at the hands of her former husband [Mr A].

In conclusion and for all the reasons give above, the Tribunal finds both Applicant 1 and Applicant 2 are refugees within the meaning of s 5H(1)(a) due to a well-founded fear of persecution in India and owing to that fear, are unable or unwilling to avail themselves of the protection of India. The Tribunal is therefore satisfied that Applicant 1 and Applicant 2 are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) of the Act.

DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Jennifer Ermert
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

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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 3860

27 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies