2403099 (Refugee)

[2025] ARTA 819

2403099 (REFUGEE) [2025] ARTA 819 (21 FEBRUARY 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2403099

Tribunal:General Member M Bailey

Place:Brisbane

Date:  21 February 2025

Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration in accordance with the orders that:

the first named applicant must be taken to have satisfied (i) s 36(2)(a) of the Migration Act; and

the second named applicant must be taken to have satisfied s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant. (ii)

Statement made on 21 February 2025 at 1:12pm

CATCHWORDS

REFUGEE – protection visa – India – Federal Circuit and Family Court remittal – particular social group – mixed religious marriage – Hindu marriage with a Pakistani Muslim – physical assault – disinheritance – fear of honour killing – family members of Hindu extremist groups – decision under review remitted

LEGISLATION

Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan Yee Kin v MIEA [1989] HCA 62
MIMAC v SZRHU (2013) 215 FCR 35

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the delegate) to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 12 May 2014. They attended separate interviews with the delegate on 6 January 2015. On 6 March 2015 the delegate refused to grant the visas on the basis that neither the first named applicant (the applicant) or the second named applicant (second applicant) engaged Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) or s 36(2)(aa) of the Act.

3. On 20 March 2015 the applicants lodged a review application with the former Administrative Appeals Tribunal (the AAT). They appeared before the AAT on 9 February 2016 and 11 May 2016 to give evidence and present arguments. On 12 August 2018 the AAT decided to affirm the delegate’s refusal decision.

4. [In] September 2018 the applicants sought judicial review of the AAT decision with the (then) Federal Circuit Court. [In] December 2023 the Federal Circuit and Family Court (the Court) ordered that the decision of the AAT be quashed and the matter remitted for reconsideration. The basis for the Court’s decision is discussed below.  

5. On 22 February 2024 the AAT wrote to the applicants advising that their application had been remitted for reconsideration. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

6. The applicants were represented in relation to the Tribunal review. They appeared before the Tribunal in person on 12 February 2025 to give evidence and present arguments. Their representative attended the hearing via videoconference.

   Protection visa criteria

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criteria, 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.

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition: First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

14. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), 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.

    BACKGROUND

16. The applicant is [an age]-year-old female from Chandigarh, India. Her religion, as accepted by the delegate and AAT, is Hindu. She first arrived in Australia [in] January 2009 on a [Student] visa. She departed Australia [in] February 2011 and returned [later in] February 2011. She has remained in Australia since that time. The applicant presented her original Indian passport to the Department and the delegate accepted that the applicant is a citizen of India. I am satisfied that the applicant is a citizen of India and that India is receiving country for the purposes of assessing her protection claims.

17. The second applicant is [an age]-year-old male from Punjab Province, Pakistan. His religion, as accepted by the delegate and AAT, is Muslim. He last arrived in Australia [in] December 2009 on a [Student] visa. He presented his original Pakistan passport to the Department and the delegate accepted that the second applicant is a citizen of Pakistan. I am satisfied that the second applicant is a citizen of Pakistan. Given my findings below with respect to the applicant, I have not undertaken an assessment of whether the second applicant engages protection obligations under the refugee or complementary protection criteria.

18. The applicants met in Australia in early 2009 and commenced a de-facto relationship in early 2010. The delegate accepted that they were in a genuine de-facto relationship at the time of their protection visa application. They married in January 2016. A copy of their marriage certificate was provided to the AAT. No concerns were raised by the AAT regarding the genuineness of the relationship. I accept that the applicants are married.

    CLAIMS AND EVIDENCE

19. The applicant has consistently claimed to fear harm in India because of her relationship with the second applicant because of differences in their religion and nationality. She claimed to fear serious harm from her paternal family, specifically her uncles whom she described in her protection visa application as ‘bigot Hindu leaders’, and members of the Hindu community including members of Hindu nationalist groups.

    Primary application

20. In the protection visa application, the applicant stated that when she returned to India in February 2011, she disclosed her relationship with the second applicant to her mother and brother. They were accepting of it but her paternal family ‘became aggressive and against [her]’ because the second applicant was a Pakistani Muslim. To avoid ‘further tension which was growing’ she fled to Australia. Following her departure, her paternal family threatened to harm her if she returned because of her relationship with the second applicant.

21. The applicant submitted a supporting statement from her mother dated 20 December 2014 (Mother’s statement) which included the following information:

    i.Her [specified relatives] (names provided) all hold extremist and fundamentalist views. [Number] are senior leaders of Shiv Sena; [another] is a leader of Bajrang Dal; and the [others] – one of whom is her sister-in-law’s husband – are leaders of Vishwa Hindu Parishad.  

    ii.During the applicant’s visit to India in 2011, her daughter told her about her relationship with the second applicant. This was overheard by the applicant’s cousins and her relationship with a Pakistani Muslim was disclosed to her whole family. The applicant ‘received a beating with a belt from her uncles for putting the family name to shame for being in a relationship with the enemy’. The applicant was pressured to end the relationship with the second applicant and had to leave India immediately.

    iii.The applicant is receiving death threats from her paternal uncles and local members of extremist groups with whom they are affiliated. Her paternal family ask about the applicant’s return to India. They are ‘very much involved’ as the extended family share ownership of a business and other property. Her brothers-in-law have forced their father to disown the applicant and disinherit her from the family property. 

22. The applicant also submitted a statutory declaration dated 30 December 2014 from a family friend (‘Ms A’) which states that the applicant’s paternal family belong to extremist Hindu groups and are ‘politically strong’. They consider her relationship with the second applicant to have brought shame and dishonour to the family. Ms A recalls visiting the applicant’s mother’s house in October 2014 and being ‘interrogated’ by the applicant’s uncles about the status of the applicant’s relationship with the second applicant. They asked her to pass on to the applicant that they will kill her if she returns.   

23. At the protection visa interview, the applicant provided additional details of her background and claims. Her father passed away in 1991. Her mother currently resides with her brother and his wife in Chandigarh. Her paternal family own a successful [business] and a lot of farming land. Since her father’s death, her paternal uncles have been closely involved with her family because of their shared business and financial interests. She resided in Delhi since 1999 and continues to own an apartment in Delhi.

24. Regarding the incident in February 2011, the applicant explained that she had returned to Chandigarh for her brother’s wedding. Following the wedding, she told her mother and brother about her relationship with the second applicant which included reference to him being a Pakistani Muslim. A paternal cousin overheard their conversation and told her uncles. Several paternal uncles and male cousins subsequently entered the room where she had been speaking with her mother and brother, demanded that her mother and brother leave, and beat her with a belt. She was locked in the room overnight before being released the next day. She departed India 3 days later.

25. The delegate did not accept the claimed incident in February 2011 to be credible. This was based on the delegate’s view that the applicant had made no mention of this incident in the protection visa application. The delegate considered the applicant’s response to this issue at the interview – that there was insufficient space in the application form and she wished to discuss it at interview – but was not satisfied that this explained the omission.

26. Regarding contact with her mother and brother following her departure from India in February 2011, the applicant indicated to the delegate that she does not speak often with them because she feared that her uncles, who are often at her mother’s house, would come to know of her whereabouts. Based on inconsistencies with evidence provided by the second applicant, the delegate did not accept that the applicant had ever ceased contact with her mother and brother and found that there had been little interaction with her paternal family since her father’s death in 1991. The delegate did not accept that her paternal family had ever harmed or threatened to harm her and found that the applicant’s mother and brother were supportive of her relationship with the second applicant.

27. Having regard to country information, the delegate was not satisfied that the applicant would face a real chance or risk of harm from the Hindu community or members of Hindu nationalist groups in her ‘home area’ of Delhi, including if she were to reside in Delhi with the second applicant. 

    AAT review

28. The AAT did not accept the claimed incident in February 2011 to be credible and found that the applicant had not experienced any harm or threats of harm from her family or members of society in India. In reaching these findings, the AAT placed adverse weight on the following factors:

    1. The applicant’s ‘failure to even mention this incident in her protection visa application’ and concerns with the applicant’s ‘various inconsistent explanations’ to the delegate and the AAT for the omission.
    2. Inconsistencies between the applicant and second applicant’s evidence regarding contact or interactions with her paternal family since her father’s death.
    3. Inconsistencies between the applicant’s evidence to the delegate and the AAT and between the applicant’s evidence and information in her Mother’s statement regarding the circumstances of this incident.

29. The AAT did not accept that the applicant’s uncles were members of Hindu extremist groups, including that 2 of her uncles held senior roles with Shiv Sena. The AAT found that the applicant ‘did not mention that two of her uncles were the president and vice president of Shiv Sena in her protection visa application and never provided any detail about her uncles’ involvement in any extremist groups.’

30. The AAT found that the applicant’s home area or place of likely return was Delhi, where she had resided for 10 years before departing for Australia and continued to own a property. The AAT found that the applicant would seek to obtain an Indian visa for the second applicant so that they could reside together in Delhi. The AAT accepted that if they were to reside together, they ‘may well face difficulties’ because of their interfaith marriage and this may be exacerbated by the second applicant being Pakistani. The AAT noted country information regarding ‘many incidences of violence against interfaith couples in India including murder’ but found that the risk of serious harm to interfaith couples arises mainly from their families and is lower for members of the middle to upper class who live in large cities in India. In the applicant’s accepted circumstances, the AAT was not satisfied that she would face a real chance of harm from her family or members of society, including Hindu extremists.

31. On judicial review the Court found the AAT’s reasoning with respect to the February 2011 incident to be affected by jurisdictional error. The Court held that in reaching its adverse credibility findings, the AAT overlooked relevant and significant material and misunderstood the applicant’s evidence. The AAT failed to consider that the delegate had not, in any detail, asked the applicant probing questions about the alleged beating. These matters gave the impression of a Tribunal on a ‘quest to disbelieve’ such that insufficient attention or precision was given to understanding the material before it and matters which were not truly inconsistent were misunderstood and mislabelled to form the building blocks of an adverse finding.

    Tribunal review evidence

32. Prior to the Tribunal hearing, the applicant’s representative provided submissions dated 3 February 2025 together with relevant country information. 

33. In her oral evidence to the Tribunal, the applicant advised that her mother continues to reside in Chandigarh with her brother and his family. They live in the same neighbourhood as her paternal uncles who often visit her brother’s house. Her brother works in the [family] business. She maintains contact with her mother and brother but can only speak with them when her paternal family are not present. She told her mother and brother of her marriage to the second applicant, of which they were supportive.

34. She has had no contact with her paternal family since last departing India and is unsure if they know she has married the second applicant. Her uncles remain involved with Hindu nationalist groups and have become more influential since her last departure from India. She was told by her brother than one of her uncles recently became a Member of Parliament.

35. The property she owns in Delhi is currently leased. Although the property title is under her name, her paternal uncles manage the lease; she receives no rental income. She confirmed that the information in her Mother’s statement regarding her being disinherited from the paternal family estate is correct. She understands this occurred in around March 2011.

36. The applicant agreed that, if she were required to return to India, she would return to Delhi. I discussed with the applicant that I will need to consider whether she will face a real chance of familial or societal harm in Delhi. The applicant stated that the situation in India has significantly deteriorated since 2011 due to increasing Hindu nationalism. She would be at risk because of her marriage to a Pakistani Muslim and she could not live safely in Delhi with the second applicant. Asked about the future risk of harm from her paternal family given the lapse of 14 years since she last departed, she stated that her ability to freely contact her mother remains limited because of her paternal family and her return to Delhi would be known to them because of their involvement with her property and the need for her to seek a reference if she were required to lease a property.

    REASONS AND FINDINGS

1. I have had regard to all relevant evidence and the basis for the Court remittal as detailed above. I find the applicant’s claims regarding her paternal family’s reaction to her relationship with the second applicant to have remained generally consistent over the course of a protection visa process that has spanned over 10 years and to accord with country information discussed below.

2. Interfaith and inter-caste marriages are legal under India's secular constitution and the Special Marriage Act 1954. According to DFAT, they are not common but do occur occasionally. Most marriages in India are arranged marriages, with the family of the prospective marriage partner choosing a spouse based on faith and caste considerations. A marriage outside this system is known as a ‘love marriage’. Those who choose to marry outside their religion or caste may experience shunning or violence from their families, but the outcome depends on the family.  While an inter-caste or interfaith marriage will not necessarily lead to violence, it can. Forms of possible family harassment can vary. Honour crimes, including acid attacks and homicides, are a possibility and are mostly associated with violence against women. Some inter-caste or inter-faith couples have reported being physically detained or locked up by their families, or hiding for fear that their families will find and kill them. DFAT assesses that the treatment of people in interfaith marriages varies according to the families involved, ranging from approval in some families, to disapproval, ostracism, harassment, or violence.[1]

   [1] Department of Foreign Affairs and Trade, DFAT Country Information Report: India, September 2023, pp 35 - 36

3. Other sources report that interfaith marriages are rare and many Indians think people should not marry outside their religion.[2] Interfaith couples are required to provide public notice in advance of their marriage in ten states, including providing addresses, photographs and religious affiliation.[3] Hindus, Muslims, Buddhists, Sikhs or Jains who marry outside their religion face the possibility of losing their property inheritance rights under the laws of those communities.[4]

   [2] Pew Research Center, Religion in India: Tolerance and Segregation, 29 June 2021  

   [3] United States Commission on International Religious Freedom, Annual Report 2023, 1 May 2023; Immigration and Refugee Board Canada, IND200953.E - Situation and treatment of interfaith couples, interfaith marriages, and children of interfaith relationships by authorities and society; laws that criminalize forced conversion, including the Prohibition of Unlawful Religious Conversion Act, 21 April 2022  

   [4] US Department of State, 2022 Report on International Religious Freedom: India, 15 May 2023  

4. According to a January 2023 report by Deutsche Welle, at least eight states, including six governed by the BJP, have passed anti-conversion laws that ban religious conversion solely for the purpose of marriage. In December 2022, in the western state of Maharashtra, the government formed a 13-member panel to investigate interfaith marriages in the state and maintain a record of couples and their families.[5]

   [5] Deutsche Welle, Why interfaith marriage in India is getting dangerous, 11 January 2023

5. A June 2023 report by The Diplomat states that anti-conversion laws have made marriages between individuals of different faiths more difficult, with the legislation being used to identify and monitor those who wish to engage in inter-faith marriages. There are reports of police and local right-wing ‘vigilante groups’ interfering in personal matters between consenting individuals, sometimes with the threat of violence. The cases that are filed under the anti-conversion laws are often coupled with criminal charges of kidnapping, abduction, or inducing women to compel marriage.[6] According to the NGO ‘Dhanak of Humanity’ which assists interfaith couples, the current legal and social situation has effectively decreased the number of interfaith marriages and many interfaith couples live in fear of their relationships becoming a criminal offence.[7]

   [6] The Diplomat, The Political Ideology Behind Anti-Conversion Laws in India, 30 June 2023

   [7] Deutsche Welle, Why interfaith marriage in India is getting dangerous, 11 January 2023

6. Reports, including those submitted by the applicants, indicate that family and societal violence against interfaith couples occurs in the form of ostracism, harassment, physical violence and honour killings.[8] According to a 2019 study by the Pew Research Center, stopping inter-faith marriage is a very important issue for many Indians. Right-wing Hindu groups associated with the ruling Hindu nationalist Bharatiya Janata Party (BJP) have applied social pressure or committed acts of violence against individuals or couples in inter-faith marriages involving Hindus.[9]

   [8] The Times of India, Interfaith marriage prompts man to stab brother-in-law to death in central Delhi, 14 June 2022; The Times of India, Bihar Man shot by brother-in-law over interfaith marriage in Hajipur, 25 August 2022; The Times of India, Telangana: Tribal woman killed over inter-faith relationship, 28 May 2022; The Times of India, Hindu youth in interfaith marriage killed by wife’s kin, 6 May 2022; Pew Research Center, Religion in India: Tolerance and Segregation, 29 June 2021; Amnesty International, Only Love Counts, 12 December 2022

   [9] Citizens for Justice and Peace, Members of Bajrang Dal reportedly harass an interfaith couple: Uttar Pradesh, 18 February 2023; Aljazeera, How a ‘love jihad’ case was manufactured in India’s Uttar Pradesh, 26 July 2022; The News Minute, 'Love Jihad' and conversion discussed at Bajrang Dal arms training event in Karnataka, 17 May 2022; The Guardian, ‘They cut him into pieces’: India’s ‘love jihad’ conspiracy theory turns lethal, 21 January 2022; BBC News, Love jihad: The Indian law threatening interfaith love, 8 December 2020; UK Home Office, Country Policy and Information Note – India: Religious minorities, May 2018  

7. As noted by the Court, while the applicant did not set out details of the February 2011 beating by her uncles in her protection visa application, she did raise it by stating that her paternal family ‘became very aggressive’ and ‘against her’ after learning of her relationship with the second applicant and ‘to avoid further tension which was growing’ she returned to Australia. The incident was elaborated on in the supporting statement from her mother.  While her mother did not provide significant detail of the beating (which is understandable given she was not present in the room while this took place), her account generally accords with the applicant’s claim that she was beaten by members of her paternal family after they learnt of her relationship with the second applicant.

8. The applicant was not represented in regard to the preparation of her protection visa application, and I acknowledge that the physical assault by her paternal family would have been traumatic for the applicant. Based on the audio recording of the protection visa interview, it appeared that the applicant found it very distressing to recall this incident despite the lapse of 4 years. In the circumstances, I have placed no adverse weight on the lack of detail provided in the written application form in relation to this incident. As outlined in the Court judgment, other evidentiary discrepancies or inconsistencies relied on by the AAT appear to have arisen from a misunderstanding of the evidence and/or failure to consider relevant evidence.

9. I acknowledge the concerns raised by the delegate and AAT regarding inconsistencies between the evidence of the applicant and second applicant concerning the frequency of contact between the applicant and her mother following her departure from India in February 2011. I accept that the applicant may have sought to underplay the level of contact with her mother to support her claims. However, I do not consider this to detract from the credibility of her claims regarding the February 2011 incident or her fear of harm from her paternal family.

10. Considering the above, I accept that during a visit to Chandigarh in February 2011 the applicant was beaten and locked overnight in a room by members of her paternal family after they learnt of her relationship with the second applicant. In light of this finding and my findings below regarding her uncles’ involvement with Hindu nationalist groups, I find it plausible that during Ms A’s visit to the applicant’s mother’s house in October 2014, the applicant’s paternal uncles made threats to harm her is she were to return to India. 

11. I accept that several of the applicant’s paternal family members are affiliated, including at senior levels, with Shiv Sena, Bajrang Dal and Vishwa Hindu Parishad. As outlined in the pre-hearing submission to the Tribunal from the applicant’s representative, these are hardline Hindu nationalist groups affiliated with the ruling BJP which promote ‘Hindutva’, an ideology which seeks to restore the pre-eminence of Hindu culture-civilisation in India. These groups have reportedly engaged in acts of violence against minorities, including the Muslim community.[10]

    [10] Immigration and Refugee Board of Canada, IND200629.E: India: The Shiv Sena political party, including their activities and presence; treatment of Sikhs by Shiv Sena members; whether Shiv Sena is involved in criminal activity, including drug trafficking (2019-June 2021); The Hindu, Bajrang Dal, The aggressive arm of Hindutva, 6 August 2023, Human Rights Watch, ‘We have no orders to save you’: State participation and complicity in communal violence in Gujarat, 30 April 2002

12. I do not share the AAT’s concern that the applicant made no mention in her protection visa application that two of her uncles held senior roles with Shiv Sena and ‘never provided any detail about her uncles’ involvement in any extremist groups’. In her protection visa application, the applicant referred to her uncles as ‘bigot Hindu leaders’ who hold ‘bigot Hindutav ideology’ and stated that Shiv Sena and her uncles are allies of the Hindu BJP. Her Mother’s statement, submitted as part of the protection visa application, specifically names 5 paternal family members and describes their leadership roles with Shiv Sena, Bajrang Dal and Vishwa Hindu Parishad. The applicant provided oral evidence regarding her paternal family members’ involvement with Hindu nationalist groups at her protection visa interview.

13. The applicant confirmed to the Tribunal that her uncles continue to be involved at senior levels with Hindu nationalist groups and, considering the overall consistency and plausibility of her evidence, I accept that to be credible.

14. I also accept the following claims to be credible:

    i.The applicant’s family share ownership and management of a [business] in Chandigarh, in which her brother is employed.

    ii.The applicant was disinherited from her paternal family’s estate following her last departure from India in 2011.

    iii.Her paternal family reside in the same neighbourhood as her mother and brother and there is frequent interaction between them.

    iv.The applicant’s uncles are involved in managing the lease of her property in Delhi.

15. Further, as did the delegate and AAT, I accept that the applicants would wish to continue their relationship if they were required to depart Australia and have based my assessment on the second applicant taking steps to secure a visa to reside with the applicant in India. Considering the above findings, I am satisfied that if the applicant returns to Delhi, there is a real chance, being a being a possibility that is not remote or far-fetched,[11] that she will experience harm from her paternal relatives or members of Hindu nationalist groups with whom they are affiliated for reasons of her marriage to the second applicant. The applicant previously experienced harm from her paternal relatives in the form of being beaten and locked in a room overnight and her uncles made threats of serious physical harm toward the applicant in October 2014 via Ms A. Considering her uncles’ ongoing involvement with extreme Hindu nationalist groups, I accept that they continue to hold the same attitudes regarding the applicant’s marriage to a Muslim from Pakistan.

    [11] Chan Yee Kin v MIEA [1989] HCA 62

16. I acknowledge that Delhi is a city of more than 30 million people and there is a significant distance between Delhi and her uncles’ place of residence in Chandigarh. However, in circumstances where her paternal family are closely linked to her mother and brother (with whom I accept the applicant would wish to have contact) and are involved with her property in Delhi, I accept that they would come to know of the applicant’s return to Delhi and her location. I am satisfied that this would be the case if she were to move to another part of India.

17. I am satisfied that the harm would involve significant physical harassment or ill-treatment and therefore amount to serious harm. I am satisfied that the essential and significant reasons for the harm are the Refugee Convention reasons of religion and/or the applicant’s membership of particular social groups which may be described as ‘Hindu women in interfaith relationships in India’ or ‘Hindu women in relationships with Muslim men in India’. I am satisfied that the harm would involve systematic and discriminatory conduct as it is non-random and would be targeted toward the applicant for the above reasons.  

18. I am satisfied that the applicant would be unable to access adequate state protection with respect to harm from her paternal relatives or members of Hindu nationalist groups with whom they are affiliated. According to DFAT, state protection for couples subjected to family violence ‘sometimes exists’ and experiences differ depending on the circumstances of the interfaith couple. In some cases, police will take action to protect the couple, sometimes with the payment of a bribe.[12]

    [12] Department of Foreign Affairs and Trade, DFAT Country Information Report: India, September 2023, p 36

19. Given her uncles’ high-level involvement with several Hindu nationalist groups and the country information outlined above concerning the current legal and social situation in relation to interfaith marriages, I am not satisfied that the applicant would receive effective protection from the authorities. There are reports of the authorities supporting, participating in, ignoring or failing to investigate violence by Hindu nationalist vigilante groups due to their links to the ruling BJP.[13] According to a report by Human Rights Watch, prejudices embedded in the government of the ruling Hindu nationalist BJP ‘have infiltrated independent institutions, such as the police and the courts, empowering nationalist groups to threaten, harass, and attack religious minorities with impunity’.[14]

    [13] UK Home Office, Country Policy and Information Note – India: Religious minorities and scheduled castes and tribes, April 2024

    [14] Human Rights Watch, India: Government Policies, Actions Target Minorities, 19 February 2021

20. For the above reasons, I am satisfied that the applicant has a well-founded fear of persecution within the meaning of the Refugees Convention.

    THIRD COUNTRY PROTECTION

21. Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. Section 36(3) provides that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right, unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied.

22. The Full Federal Court in MIMAC v SZRHU[15] held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of a liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

    [15] (2013) 215 FCR 35

23. As acknowledged by the applicant’s representative in the pre-hearing submissions to the Tribunal, the Treaty of Peace and Friendship between India and Nepal 1950 (the Treaty) provides Indian citizens with a right of entry and residence in Nepal. Under Article 7 of the Treaty, Indian nationals in Nepal have ‘the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature’. The most recent DFAT report states that the Treaty ‘in law and practice allows free movement between the countries’.[16]  

    [16] Department of Foreign Affairs and Trade, DFAT Country Information Report: India, September 2023, p 52

24. As I am satisfied that the applicant has a right to enter and reside in Nepal under the Treaty, I have considered whether any of the exceptions in subsections 36(4) to (5A) of the Act apply, such that s 36(3) is not applicable. In the applicant’s particular circumstances, I am satisfied that she has a well-founded fear of persecution in Nepal for reasons of religion and/or her membership of particular social groups which may be described as ‘Indian Hindu women in interfaith relationships in Nepal’ or ‘Indian Hindu women married to Muslim men in Nepal’.

25. According to DFAT there has been a rise in Hindu-nationalist sentiment in Nepal in recent years, especially since the election of Narendra Modi as Prime Minister of India. As in India, some Hindu-nationalists in Nepal reject religious pluralism and have called for the restoration of Nepal as a Hindu monarchy. While there are no legal barriers to inter-faith marriage in Nepal, inter-faith marriage remained a controversial issue for many families, including Hindu/Muslim marriages. Although Nepali society has generally become more tolerant of religious and caste differences, DFAT understands that such marriages remain uncommon. DFAT assesses that people who marry outside their religion are generally at low risk of societal discrimination, but this varies by family and community.[17]

    [17] Department of Foreign Affairs and Trade, DFAT Country Information Report: Nepal, March 2024, p 17

26. I acknowledge DFAT’s assessment that there is generally a low risk of societal discrimination for interfaith couples. However, I find that the applicant would be residing in a foreign community, where she would likely draw a higher level of attention as an Indian Hindu citizen married to a Pakistani Muslim man. As raised by the applicant’s representative, the second applicant, as a Pakistani citizen, would not have the same residency rights under the Treaty as the applicant. I accept that his ability to reside in Nepal would be limited to temporary visa timeframes, such that there would be periods where the applicant was residing without male protection or support. Considering the prevalence of gender-based violence in Nepal and limitations on protections for women,[18] I find that this would increase the chance that she would experience societal harm.

    [18] Department of Foreign Affairs and Trade, DFAT Country Information Report: Nepal, March 2024, p 23

27. For the reasons given above, I find that the exception in s 36(4) is applicable and therefore s 36(3) does not apply in the circumstances of this case.

    Conclusions

28. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).

29. I am satisfied that the second applicant, as the husband of the applicant, is a member of the same family unit as the applicant for the purposes of s 36(2)(b)(i) of the Act. It follows that the second applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

1. The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration in accordance with the orders that:

   i.the applicant must be taken to have satisfied s 36(2)(a) of the Act; and

   ii.the second applicant must be taken to have satisfied s 36(2)(b)(i) of the Act, on the basis of membership of the same family unit as the applicant.

   Date of hearing:  12 February 2025

   Representative for the Applicant:           Mr Michael Terence Jones