COM19 v Minister for Immigration and Multicultural Affairs - [2025] FedCFamC2G 569

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
COM19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 569

File number(s): MLG 2064 of 2019

Judgment of: JUDGE COULTHARD

Date of judgment: 23 April 2025

Catchwords: MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – no jurisdictional error established – application dismissed

Legislation: Migration Act 1958 (Cth) ss 5H; 5J; 36; 414; 476

Cases cited:
Carrascalaov Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136

Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582

Division: Division 2 General Federal Law

Number of paragraphs: 120

Date of last submission/s: 17 March 2025

Date of hearing: 17 March 2025

Place: Brisbane

Counsel for the Applicant: Mr Guo

Solicitor for the Applicant: Carina Ford - Carina Ford Immigration Lawyers

Counsel for the First Respondent: Mr Lessing

Solicitor for the First Applicant: Ms Chamakala - Clayton Utz

Second Respondent: The second respondent filed a submitting appearance, save as to costs
ORDERS

MLG 2064 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
COM19

Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE COULTHARD

DATE OF ORDER:

23 APRIL 2025

THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The amended application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $7,467.00.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE COULTHARD
INTRODUCTION

Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of India. The applicant came to Australia on 31 July 2009 with her first husband (“S”) as the primary holder of a student visa. The applicant and S separated and their divorce was finalised on 28 July 2011.
The applicant met her second husband (“G”) in Australia in 2010. They married on 26 September 2011. They later separated in August 2014 and their divorce was said to have been finalised on 16 December 2015 (Court Book (“CB”) 350).
After the applicant’s divorce from her first husband S, the applicant’s visa history is as follows (CB 238-239): on 14 November 2011, the applicant was granted a student visa as a dependent on G’s visa; on 22 January 2013, the applicant applied for but was refused a temporary work visa; on 5 February 2013, the applicant was granted another student visa as a dependent on G’s visa; on 22 June 2013, the applicant applied for but was refused a temporary work visa as a dependent on G’s visa; on 20 June 2014, the applicant applied for a student visa as a dependent on G’s application. The applicant withdrew as a dependent on that visa application on 8 November 2014. On 9 December 2014, the applicant was granted a Bridging Visa E.
On 17 December 2014, the applicant made an application for a Protection (Class XA) (subclass 866) visa (“the visa”) (CB 1-47).
On 16 March 2016, the applicant’s lawyer provided the delegate with written submissions dated 15 March 2016 and documents in support of the applicant’s visa application together with a statutory declaration by the applicant also dated 15 March 2016 (CB 109 -191).
On 15 April 2016, the delegate interviewed the applicant.
On 19 April 2016, the applicant’s lawyer provided the delegate with further written submissions dated 19 April 2016, documents in support of the applicant’s visa application and a further statutory declaration by the applicant dated 19 April 2016 (CB 196-219).
On 18 May 2016, the applicant’s lawyer provided the delegate with further written submissions and documents in support of the applicant’s visa application (CB 220-231).
On 22 June 2016, the delegate refused to grant the applicant a protection visa on the basis that the delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa on the basis that she was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) as the delegate was not satisfied that the applicant was a refugee as defined in s 5H of the Act, and was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act as it was not satisfied that as a consequence of being removed to India there was a real risk the applicant would suffer significant harm as defined in s 36(2A) of the Act (CB 238-270) (“the delegate’s decision”).
Application for review to the Administrative Appeals Tribunal
On 11 July 2016, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 272-273). The applicant appointed a registered migration agent to act as her representative being the lawyers who had represented her in her correspondence with the department (CB 273).
On 9 October 2018, the Tribunal invited the applicant to attend a hearing on 2 November 2018 to give evidence and present arguments relating to the issues arising in her case, stating that it was unable to make a favourable decision based on the information before it alone (CB 334-335).
On 26 October 2018, the applicant’s lawyer provided the Tribunal with written submissions dated 26 October 2018 and supporting documents including: Application and Summons for an Intervention Order in respect of G, dated 27 October 2015; a number of articles regarding honour killings in India relating to inter-caste marriages; an extract from the DFAT Country Information report on India dated 17 October 2018; an article titled “2016 Report on International Religious Freedom – India”; an extract from an article titled “Country Reports on Human Rights Practices for 2017” (CB 347-422). A copy of the applicant’s earlier statutory declaration dated 15 March 2016 was also attached.
On 2 November 2018, the applicant attended the hearing. The applicant was assisted by her lawyer and an interpreter in the Punjabi and English languages.
On 4 June 2019, the Tribunal notified the applicant that it had decided to affirm the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 432-464).
THE TRIBUNAL’S DECISION
The applicant’s grounds of review are largely confined to the Tribunal’s reasons in paragraphs [66]-[70] and [87]-[89] with respect to two aspects of the Tribunal’s Decision. Given that it is necessary to read the reasons as a whole and with regard to how the matter was conducted in the Tribunal, the Court has summarised the whole of the Tribunal’s reasons which were lengthy.
The applicant made several claims to protection arising from her marriage and divorce from her first ex-husband S (with whom she came to Australia) and her inter-caste marriage to her now ex-husband G who she met and married in Australia.
The applicant’s claims were set out in the applicant’s visa application dated 17 December 2014. As noted above, the applicant made three further written submissions to the delegate accompanied by statutory declarations dated 15 March 2016 and 19 April 2016. The Tribunal summarised the applicant’s various claims by reference to the delegate’s summary of those claims ([17]-[19]).
The Tribunal then summarised the applicant’s submissions to the Tribunal dated 26 October 2018 ([20]), the applicant’s evidence at the hearing ([21]-[32]) and set out the country information with respect to women, inter-caste marriage, honour killings, police in Punjab and internal relocation ([33]).
The Tribunal stated that the applicant claims to fear persecution from G’s family, particularly her father-in-law, because of their inter-caste marriage by reason of her religion and by reason of her membership of a particular social group, specifically as a person who had entered into an inter-caste marriage. The Tribunal accepted that the applicant’s claim fell within the scope of s 5(J)(1) of the Act by reason of her religion and by reason of her membership of a particular social group as a person who had entered into an inter-caste marriage ([42]; [44]).
The Tribunal accepted, based on the applicant’s evidence, that she has a subjective fear of being harmed if she returns to India for a reason mentioned in s 5J(1) of the Act ([46]; [50]). The Tribunal then went on to consider whether the applicant had a well-founded objective fear of harm in that event.
The marriage to S
The Tribunal first considered and made findings with respect to the applicant’s claims concerning her marriage to and divorce from S.
The marriage with S was arranged by their respective parents because they were from the same religion and caste. The applicant travelled to Australia with S, but the marriage turned abusive and they were divorced in July 2011 ([51]).
The applicant said she did not fear harm from her family because of her divorce from S ([52]). Rather, she claimed to fear harm from the Sikh community in Ahmedgarh, Punjab because of being a divorced Sikh woman and as a result of her failing to honour her arranged marriage and feared that if she returns, she will be subject to cruel and degrading treatment due to her divorce and unmarried status ([53]).
The Tribunal considered the status of marriage and opposition to divorce according to the Sikh faith and the treatment of women post-divorce ([54]-[57]).
The Tribunal said that while it accepted that within the Sikh faith there is no provision for divorce, it accepted the country information that divorce has become more acceptable throughout India, particularly in more urban areas. The Tribunal stated that, by Indian standards, the applicant is from a relatively small town and as such it accepted that she may be subjected to some discrimination, for example by being excluded from social or religious gatherings, by members of her own faith and caste because of having divorced S. However, the Tribunal noted that applicant does not fear any harm from her family. The Tribunal said that the applicant claims not to believe in the caste system and to have friends from many sections of society. The Tribunal said that it seemed unlikely that the applicant would suffer any harm because of being divorced and that if the applicant does suffer any discrimination because of her divorce from S from her local Sikh community, it would not amount to cruel and/or degrading punishment to the extent that it could be considered serious harm ([58]).
The Tribunal concluded that there was no real chance the applicant will suffer serious harm because of her divorce from S if she is returned to India ([59]).
The marriage to G
The Tribunal then considered and made findings in relation to the applicant’s claims with respect to her marriage and divorce from G.
The Tribunal said that despite that applicant’s claim that she did not believe in the caste system and that she had friends from all sections of society in India, she claimed that because G and her were from different religions and caste, they did not tell their families of their marriage. Her evidence was that both their families were very traditional. The Tribunal said that despite having returned to India in 2013 to meet G's family, the applicant's evidence was that she did not inform them of their marriage ([60]).
The Tribunal said that in 2014 G returned to India for his sister's wedding upon which his family informed him that they did not like the applicant because she was from a different religion and caste ([60]). The Tribunal said that it was the applicant's evidence that G's family were not aware that they were married until she told his sister after they had separated [in August 2014]. However, her evidence was also that his family had assumed that G and her were in a relationship and had told him to stop being with her. On his return to Australia, the applicant said that G’s family became more infuriated with the possibility that he was in a relationship with her that they began to demand that G leave the applicant ([60]).
The Tribunal considered the applicant’s claim that she and G were under constant pressure from his family to terminate their relationship and as a result she suffered from “distress and depression.” The Tribunal said that the applicant had not provided the department or the Tribunal with any evidence that the applicant had suffered from any “distress or depression” as claimed. In addition, the Tribunal said there was no evidence that the applicant had suffered any mental condition to the extent that it would constitute serious harm if she was returned to India. While the Tribunal said it accepted that it would have been stressful for the applicant to have received the threats as claimed, particularly in circumstances where her marriage was failing, there was no evidence that the applicant continued to suffer from such distress or depression after the separation. As such, the Tribunal said it did not accept that the applicant suffers from distress and depression as claimed to the extent that it constitutes serious harm and that there is no real risk that the applicant will suffer serious harm by reason of any “distress or depression” as a result of her returning to India ([61]).
The Tribunal considered the applicant’s claim that G's parents threatened to kill her and her family because of her being in a relationship with him. The Tribunal referred to the applicant’s claim that she initially received the threats before she and G had divorced. Her evidence was that, after their separation [in August 2014] and out of frustration of his family having encouraged their separation, the applicant called G’s sister and informed her that she and G were married. The applicant's evidence was that this information infuriated G's family resulting in them making abusive and threatening telephone calls to her. The Tribunal said that whilst it accepted the applicant's evidence that she received threatening phone calls from G's family, it did not accept that the threats continued as the applicant claimed. The applicant’s evidence was that because of having received the threats on the phone she changed her telephone number five times. The applicant stated that despite changing her number, G's family would obtain it through mutual friends and continue to threaten her. In circumstances where the applicant claimed that she feared for her safety because of calls from G's family, the Tribunal said it found it difficult to believe that they were able to obtain her number in India through mutual friends. In circumstances where the applicant claimed she was threatened with her life, the Tribunal said that it seemed extremely unlikely that a person in that position would distribute to any mutual friend her new number on multiple occasions. Therefore, the Tribunal said that whilst it was prepared to accept that she initially received threatening calls, it did not accept that G's family would have been able to get her telephone number as claimed on multiple occasions and as such it did not accept that the applicant continued to receive the threatening calls as claimed ([62]).
The Tribunal then considered the applicant’s claim that as a result of her marriage to G, despite being separated, G's family demanded that her family pay a dowry. The applicant's evidence was that G's father demanded a dowry from the applicant’s mother. The applicant's evidence was that her mother said to G's father that they could not afford a dowry which infuriated G's family. The applicant said that as a result, G's family threatened to harm her and her family. The Tribunal did not accept the applicant's evidence and found that no demand for a dowry was made by G's father as claimed ([65]).
The Tribunal then went on to consider the applicant’s claims that after her divorce from G she continued to receive threatening phone calls and messages from G’s family about how she had ruined his life. It is the Tribunal’s consideration of this aspect of the applicant’s claim that is the focus of ground one of the amended application.
The Tribunal said that the applicant's evidence is that she and G are now divorced. As such, the Tribunal concluded that G is free to marry in accordance with his families wishes. The Tribunal referred to the applicant’s claims that she has, however, continued to receive threatening phone calls and messages from G's family about how she ruined his life. The Tribunal said that the applicant claims that G’s family, after finding out about the divorce, claim he now has an unmarried status with someone in a lower caste and that in addition, the applicant claims that G’s family believes that he remains unmarried as he is now undesirable to future wives because she took out an Intervention Order against him ([66]).
The Tribunal said, referring to research studies, it accepted that people prefer and are encouraged to stick to their own caste ([67]).
The Tribunal then considered the evidence that arranged marriages continue to account for the overwhelming majority of marriages across India and that the DFAT report notes that the acceptance of marriages outside of castes or religion, or even of marriage partners not chosen by the family, depended heavily on individual family beliefs. The Tribunal said that it accepted, based on the applicant’s evidence and the available country information, G’s family would want to have control of who he marries and would object to an inter faith or inter-caste marriage for their son. The Tribunal went on to say that, however, the applicant and G are now divorced, and he is now free to marry in accordance with his family's wishes ([68]).
The Tribunal then referred to the applicant’s claim that despite the fact that she and G are now separated and no longer in contact, she fears returning to India as she believes that G's family are still looking to harm her and seek revenge due to the fact that he remains unmarried [and] now is undesirable to future wives. The Tribunal noted that while the divorce rate in India is relatively low, it has increased considerably in recent years and that people in India are now willing to end a marriage that is not working. The Tribunal said that it is reported that there has been a marked reduction in the stigma associated with divorce. Therefore, the Tribunal said that while it may be that G has not married in accordance with his family's wishes, it did not accept the applicant's evidence that she is held responsible by his family for him being undesirable to future wives. The Tribunal said that the applicant was not able to provide any evidence as to G’s circumstances and that her evidence was that she no longer had any contact with him. Therefore, given that the applicant's relationship with G is at a complete end, the Tribunal said it did not accept that his family would have any ongoing interest in the applicant ([69]).

The Tribunal then dealt with the applicant’s claim with respect to the demand for a dowry. The Tribunal said that it found that no dowry was demanded by G's father as claimed and did not accept that the applicant's family were threatened by G’s family as claimed. Accordingly, the Tribunal found that there is no real chance the applicant will suffer serious harm by G's family as claimed [(70]).
The Tribunal then considered the issue of honour killings. The Tribunal said that whilst the applicant did not specially claim that she would be the victim of an honour killing by G's family, she did claim that she will be killed by G's family if she is returned to India. The Tribunal considered country and other information regarding honour killings ([71]-[74]). The Tribunal concluded that whilst it noted the country information in relation to honour killings particularly in Punjab, it did not accept that the applicant had been threatened by G’s family as claimed and accordingly said it found that there is not a real chance that the applicant may suffer serious harm as a result of an honour killing by G’s family in the event that she returns to India ([75]).
The Tribunal then concluded that, in the event that the applicant was threatened as claimed (which the Tribunal said it specifically found she was not), it had considered whether the persecution claimed by the applicant relates to all areas of India and whether there is a real chance the applicant will be persecuted in all areas of the receiving country ([76]-[77]). The Tribunal referred to the country information that relocation may be limited by factors such as language barriers, lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities and discrimination based on ethnicity, religion or caste ([78]-[79]).
The Tribunal considered the applicant’s claims that it would be unreasonable for her to relocate to another area or city in India because she does not have any relatives or connections in other parts of India and that it would be difficult and dangerous for her as a single women; G's family work in government, is relatively wealthy and have the resources to find her anywhere in India; and she will not have any support or financial backing in another area or city making it difficult for her to find employment and support herself ([80]) and concluded:
(a)the applicant is not disadvantaged or at any greater risk if she relocates to an urban centre such as New Delhi or Chandigarh having regard to the following: she comes from a family of means, is Sikh and able to speak, read and write Hindi and Punjabi; she has some command of English and has obtained a qualification in hospitality management; has demonstrated in Australia that she is capable of being gainfully employed. As such, the Tribunal said that there appears to be no evidence the applicant would be at any disproportionate risk of harm in the event that she moved to a centre such as New Delhi or Chandigarh. Accordingly, the Tribunal found that the applicant would be able to relocate to urban centres such as New Delhi or Chandigarh without any increased risk to her safety and wellbeing ([81]);
(b)it was not prepared to accept that G's family had the type of influence necessary to find and harm a person across the country. In the circumstances, the Tribunal said it seemed highly unlikely that G's family would have any knowledge of her existence in a vast city such as New Delhi or Chandigarh. The Tribunal found there is not a real chance that the applicant will be persecuted in all areas of India ([82]);
(c)as to the applicant's position that relocation was not open to her because she does not have any relatives or connections in other parts of India and as such does not have the support or financial resources to relocate and accordingly her employment opportunities would be limited, the Tribunal noted that the applicant had moved to Australia after getting married to S. The Tribunal said that the applicant is young and resourceful having obtained gainful employment in Australia and supported herself after her divorce from both S and G. The Tribunal said that in any event, any difficulty the applicant would incur in finding work based on her particular circumstances would not amount to serious harm in the sense that her life or liberty would be threatened, suffer significant harassment or physical ill treatment or suffer economic hardship, denial of basic services or loss of capacity to earn a living in the sense that it would threaten her capacity to subsist. The Tribunal said it acknowledged the applicant would face difficulties and challenges arising from establishing herself in a new city and finding work if she was to return to India, it found that she would be able to access paid employment into the reasonably foreseeable future. Therefore, the Tribunal said that, on an objective basis it is reasonable to expect the applicant to relocate to another area in India where there is no real risk that she will suffer serious harm ([83]).
The Tribunal concluded that it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s 5J(1)(c) ([84]) and that it was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in ss 5J(1)(a) and 5J(1)(b). The Tribunal concluded that, therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) ([85]).
Complementary protection
In considering whether the applicant met the complementary protection criterion under s 36(2)(aa), the Tribunal said it considered whether it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk that the applicant will suffer significant harm ([87]).
It is the Tribunal’s consideration of this aspect of the applicant’s claim that is the focus of ground two of the amended application.
The Tribunal stated that the applicant claims that she satisfies the requirements under s 36(2)(aa) by reason that she faces a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading and treatment or punishment. The Tribunal referred to the applicant’s claim that she has been threatened by G's family as a result of him marrying her without their consent and knowledge and that she claims that her [sic] family have objected to the marriage on the basis it was an inter-caste marriage, that they were not paid a dowry and that since they are now divorced, G is no longer attractive to other potential “suitable” wives ([88]).
The Tribunal then referred to the “real risk test” and said that there is not a real risk that the applicant will suffer significant harm from G’s family in the event that she returns to her local area in India ([89]).
The Tribunal then considered whether it was reasonable for the applicant to relocate to New Delhi and Chandigarh. The Tribunal referred to the applicant’s claims at the hearing that relocation was not open to her because she does not have any relatives or connections in other parts of India and as such does not have the support or financial resources to relocate and accordingly her employment opportunities would be limited. The Tribunal said that the applicant moved to Australia after getting married to S and that she is young and resourceful having obtained gainful employment in Australia and supported herself after her divorce from both S and G. The Tribunal then said that, in any event, any difficulty the applicant would incur in finding work based on her particular circumstances would not amount to facing a harm that would constitute significant harm in the sense that she would be deprived of her life, be tortured, be subjected to cruel or inhuman treatment or punishment or be subjected to degrading treatment or punishment. The Tribunal said that whilst it acknowledges the applicant will face difficulties and challenges arising from establishing herself in a new city and finding work if she was to return to India, it finds that she will be able to access paid employment into the reasonably foreseeable future. Therefore, on an objective basis the Tribunal concluded that it is reasonable to expect the applicant to relocate to another area in India where there is no real risk that she will suffer significant harm ([91]).
The Tribunal went on to consider the applicant’s claim that it would be unreasonable for her relocate to another area or city in India because it would difficult and dangerous for her as a single woman. The Tribunal referred to a US State Department report with respect to women’s safety in India and concluded that the applicant would be able to relocate to urban centres such as New Delhi or Chandigarh without any increased risk to her safety and wellbeing beyond what is normally experienced in her local community ([92]).
The Tribunal then referred to the applicant’s claim that she fears persecution because of being divorced. The Tribunal said that it noted the acceptance of divorce in India has grown and that how women are treated post-divorce depends on her individual circumstances, financial position and her position in society, and that divorce is generally more accepted and understood in urban areas than rural areas of India [and] smaller towns. The Tribunal said that while it recognises the applicant may be subjected to discrimination in her local area, there is no evidence that she would be subject to targeted harm from a “community” outside of her home area because of her religion, her inter-caste marriage or the fact that she is divorced. The Tribunal referred to the fact that the applicant's father appears to have some financial resources and standing in the community. The Tribunal referred to the available country information which it said indicates that the religion of the parties to a marriage is immaterial under the [Anand Marriage] Act and that while arranged marriages continue to account for the overwhelming majority of marriages across India, with parents or other family members assuming responsibility as to who their children may marry, it is an issue that is relevant only to those within the person’s family circle or their close community. As such, the Tribunal said it appeared that the applicant would not encounter such discrimination or persecution, beyond the normal risks to her personal safety and wellbeing, in other areas of the country, particularly in large urban areas such as New Delhi or Chandigarh. The Tribunal concluded that there is not a real risk that the applicant will be harmed if she relocates to a city such as New Delhi or Chandigarh ([93]).
The Tribunal then referred to the applicant’s claim that G's father works in the government post office and is relatively wealthy and therefore has the resources to find her anywhere in the country. The Tribunal said that the applicant did not provide any evidence of G's father's employment or his influence in the community. The Tribunal said the applicant's evidence was that G's family had threatened to harm her family, but the Tribunal said that despite being relatively close they had made no effort to travel to meet them either to demand the dowry [or] to carry out any threat. The Tribunal said that, in any event, it found it hard to believe that a government worker, even a postal worker, would have the resources or the influence to track down and harm the applicant if she relocated to another part of the country. As a result, the Tribunal said it did not accept the evidence of the applicant in relation to G's family and did not accept that they have the means or the resources to locate and harm her anywhere in India. In the circumstances, the Tribunal said, it seems highly unlikely that G's family would have any knowledge of her existence in a vast city such as New Delhi or Chandigarh. The Tribunal found that there was no real risk that the applicant will be significantly harmed by G's family in the event that she relocates to a city such as New Delhi or Chandigarh ([94]) and that there is no real risk the applicant will suffer significant harm in areas such as New Delhi or Chandigarh and that it would in all the circumstances be reasonable for the applicant to relocate to New Delhi or Chandigarh to avoid the real risk of significant harm ([95]).
The Tribunal concluded that having regard to all the circumstances and findings above, considered individually and cumulatively, there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk she will suffer significant harm as required by s 36(2)(aa) ([97]).
Accordingly, the Tribunal concluded that it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s 5J(1)(a) and 5J(1)(b) and that therefore the applicant does not satisfy the criterion set out in s 36(2)(a) ([98]) and that it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) ([99]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 1 July 2019. The applicant also filed an affidavit affirmed on 1 July 2019. The affidavit annexes the Tribunal’s decision.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which she seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The applicant filed an amended application on 17 February 2025.
The material before the Court was the amended application, the applicant’s affidavit, the first respondent’s amended response, the applicant’s written submissions, the first respondent’s written submissions and the Court Book. The Court Book was made an exhibit in the proceedings.
CONSIDERATION
For the applicant to be successful, the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The grounds of review set out in the amended application are (without alteration but excluding any bold type and underlining):
1. The Tribunal erred in failing to consider, or misunderstanding the extent of, the Applicant's claim to fear harm from her ex-husband and his family because he is now perceived to be 'undesirable'.
Particulars
a. The claim about the ex-husband being ‘undesirable’ included that the ex-husband was now: (i) a man who had “an unmarried status with someone of a lower caste” as a result of the failed marriage with the Applicant; and (ii) may now be perceived to be ‘too old’, which and was put forward with evidence that men faced pressure to marry by a certain age, which the ex-husband had reached.
b. [T]he Tribunal’s consideration of the claim was confined to the fact the ex-husband is now a divorcee, and did not deal with the ex-husband having been married to someone of a lower caste nor him being perceived as ‘too old’ (at [69]).
2. The Tribunal failed to consider the Applicant’s complementary protection claim that as “a divorced single woman, the Applicant fears that she will be subject to degrading treatment, such as exclusion from society and employment based on her marital status”.
Both grounds one and two contend that the Tribunal “failed to consider” the applicant’s claims. The claim in ground one is that the Tribunal considered the applicant’s claim only as one of fearing harm from G and his family because of his “undesirability” arising from the fact that he is now a divorced man and not because of his “undesirability” as a man with a failed inter-caste marriage and arising from the fact that he is now considered “too old”. The claim in ground two is that the Tribunal failed to consider the applicant’s complementary protection claim that she will be subject to degrading treatment such as exclusion from society and employment because of her status as a divorced single woman.
It is useful to say something at the outset as to the relevant principles with respect to “failure to consider” as a jurisdictional error.
Section 414 of the Act requires the Tribunal to consider the claims of the applicant. In Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 Allsop J said at [42] that for the Tribunal to make a decision without having considered all the claims is to fail to complete the exercise of the jurisdiction embarked on and that the claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323.
More recently in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582, Kiefel CJ, Keane, Gordon and Steward JJ said at [24]-[27] (citations omitted):
[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.
[25]It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them
[26] Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
[27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

In the context of this matter, the question for the Court is to identify what claims the applicant expressly articulated or which clearly arose on the material before the Tribunal and then to assess whether the Tribunal considered those claims mindful in doing so of the caveat that the Court is not to “slide into merits review” (Carrascalaov Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [32]).
Of course, in examining whether the Tribunal did consider the applicant’s claims, it is well settled that the Court should not be “concerned with looseness of language … nor with unhappy phrasing” and that the Tribunal’s reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ referring to Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280).
Ground one: failure to consider or misunderstanding the extent of the applicant’s fear of harm from the ex-husband’s family
In ground one, the applicant contends that the Tribunal did not consider that the applicant’s claim to fear retribution from G and his family because he was now “undesirable” was not confined to the fact that G is now a divorcee but also because he was now a man who had an unmarried status with someone of a lower caste and that he may now be perceived to be “too old” to marry. The applicant contends that the Tribunal erred in considering G’s “undesirability” as confined to the fact that he is a divorcee and not also because of the stigma of having been in an inter-caste marriage and because he may now be perceived to be too old to marry.
The first question for the Court is whether the applicant made a claim that she feared harm from G or his family because they considered G was “undesirable”, because he was now a man who had an unmarried status with someone of a lower caste and because he may now be perceived to be “too old” (to marry). In that event, the question which follows is whether the Tribunal considered the claim.
G’s age: being perceived to be too old to marry
It is useful to start with the applicant’s written submission to the Tribunal (CB 348-360) and then consider the applicant’s submissions to the delegate.
In the written submission to the Tribunal dated 26 October 2018, (under the heading “Claims for protection”) it was explained that after the applicant and G separated (which was said to be in August 2014) the applicant said she told G’s sister that they were married. It was said that this infuriated G’s family even more (they had initially been infuriated about the possibility of a relationship between the two). It was said that being informed of the marriage resulted in G’s family sending the applicant abusive messages and frequently calling her to threaten her and that even though she changed her number several times they always found a way to obtain her new number. The submission also stated that G’s father had demanded a dowry from the applicant’s family, that the applicant’s family did not have the means to pay, and G’s family threatened to harm the applicant’s family. At paragraph 32, the claim was put in these terms:
32. The Applicant continued to receive threatening messages and telephone calls from G’s family about how she has ruined G’s life. They have claimed that he now has an unmarried status with someone of a lower cast [sic] after finding out about the divorce. In addition, the applicant took an IVO against G in the past which she believes has made the family think he is now undesirable to future wives and this is the reason that he remains unmarried (annexure 4). [The IVO was attached]
And then at paragraph 35:
35 Although the Applicant and G are now separated and are no longer in contact, she fears returning to India as she believes G’s family are still looking to harm her and seek revenge for what she has caused. The Applicant has met the family and therefore they know exactly who she is and where her family are from.
The submission then went on to address the issue of real chance of persecution pursuant to s 5J(1)(b) of the Act, and at paragraph 68 stated:
68. The Applicant fears her second husband’s family as they believe she is the cause of his misfortune. In particular, she fears that upon her return to India, they will harm her as revenge [for] what they believe she has triggered in their son’s life. She has continuously received threatening messages from the family threatening harm if she were ever to return to India.
The Court is of the view that the written submission to the Tribunal does not make a claim that G’s family considered that he was “undesirable” to future wives because of his age. Indeed, the reason for his “undesirability” appears – from reading paragraph 32 – to be tied to the fact that the applicant had taken out an intervention order against him. The Court agrees with the first respondent’s submission to that effect (first respondent’s written submissions (“FRS”) [35]).
The Court has also read the applicant’s statutory declaration of 15 March 2016 (attached to the written submission to the Tribunal as well as to the submission of the same date to the delegate). The question of G’s “undesirability” (to future wives or generally) by reason of his age is not mentioned.
The applicant’s counsel took the Court to the submission the applicant’s lawyer had made to the delegate on 15 March 2016 (CB 109-130). This was the first written submission to the delegate. At paragraph 24 (under the heading “The applicant’s second marriage – G”) the submission was made that:
24. G is 8 years older than the Applicant, and due to his maturing age, his family were particularly angry and blamed the Applicant for wasting G’s time and his opportunity to find someone else more appropriate to marry.
Then, when addressing the assessment of protection obligations under s 36(2)(a) under the heading “Consequences for women who do not honour arranged marriages” (which was about the applicant’s divorce from her first husband, that marriage having been arranged), DFAT country information was referred to as follows (footnotes omitted):
69. The DFAT Country Information Report expressly confirms that arranged marriages account for the ‘overwhelming majority’ of marriages across India. The Report confirms that there is, ‘an enormous social pressure for women to marry by their mid-20s and men by their mid-30s’.
It should not be in contention that by the time the applicant and G had divorced (which was said to be on 16 December 2015 (CB 350)), G would have been 33 years of age (CB 4 q11), and that at the time of the Tribunal’s decision, he would have been 37 years of age.
The applicant’s lawyer then made further written submissions to the delegate dated 19 April 2016 (CB 198-206). Paragraph 31 of those submissions states as follows:
31. […] The Applicant’s in-laws’ anger is not derived exclusively from the fact of her marriage being in force with G but is also on the basis of the amount of G’s time his family perceive that the Applicant has wasted in the prime years of his life. As such, the Applicant’s marriage to G is viewed as an irredeemable failure on the Applicant’s part, inexcusable due to her differing religion and caste and which will only be made up for by physical retribution against the Applicant in the name of ‘family honour’.
The Court considers it is a strained reading of paragraph 31 to say that the applicant’s fear of retribution was because, inter alia, G’s family considered G to be “undesirable” because he was now beyond the socially acceptable marrying age. It is not a claim which can fairly said to clearly arise.
The third set of written submissions to the delegate dated 18 May 2016 (CB 222-231) is limited to the issue of G’s family allegedly demanding a dowry from the applicant’s mother and G’s family’s threats against the applicant and her mother regarding that demand.
So, apart from the reference to G’s age in the written submission to the delegate dated 15 March 2016, the issue of age as an aspect of G’s “undesirability” or as otherwise an element in G’s family’s desire for retribution was not raised by the applicant. It was not raised in the written submission to the Tribunal. A fair reading of those submissions is that G’s age was not an aspect of the applicant’s claim which she now pressed before the Tribunal. At best, it was a relatively minor and not critical aspect of the alleged motivations of G’s family.
In conclusion, the Court does not accept that on a fair reading of the applicant’s claims, the applicant claimed fear of harm from G or his family because they considered G to be “undesirable” to future wives because of his age. Accordingly, no failure to consider is made out in that regard.
Failed inter-caste marriage
The other aspect of ground two of the amended application is the contention that the Tribunal did not examine the applicant’s claim to fear of harm as it arose from the particular stigma associated with the fact that G had been in a mixed-caste marriage which had failed (applicant’s written submissions (“AS”) [9]). The submission was that the Tribunal had not grappled with this aspect of the applicant’s claim but had confined its consideration to the stigma attached to G being divorced.
The first submission to the delegate dated 15 March 2016 proceeded on the basis that the applicant and G were separated but not yet divorced. Accordingly, the claim at that time was not based upon fear of harm because of a failed inter-caste marriage or, as particularised in ground one of the application, that he was a man who had “an unmarried status with someone of a lower caste” as a result of the failed marriage with the applicant. For example, at paragraph 45 (under the heading “Is the harm feared for a convention reasons?”) it was stated:
45. The Applicant falls within a distinct category of a social group of women who marry outside their own caste. Although she is separated from G, she continues to be married to him. G’s family do not accept her and will go out of their way to harm her for reason of their marriage being inter-caste.
That submission is inconsistent with the statement by the applicant in paragraph 27 of her statutory declaration also dated 15 March 2016, in which the applicant said:
27. G’s family were very angry about this and started to abuse me even more. They think I am responsible for their son’s unmarried status and I am the reason no one wants to marry him now.
However, in paragraph 28 of her statutory declaration, the applicant goes on to say that she has not yet signed the divorce papers.
Then in the second submission to the delegate dated 19 April 2016, at paragraph 28 it is stated:
28. As the applicant has explained in her statutory declaration attached, she had not yet knowingly divorce [sic] her current husband due to the fact that they each signed an Undertaking not to contact each other on 27 October 2015.
The submission goes on to say, at paragraph 30, that the applicant is aware that G may have initiated divorce proceedings but that the applicant did not sign the divorce papers on advice that she should see the remainder of the divorce file. That is also what the applicant says in her statutory declaration of 19 April 2016 which accompanied the second written submission to the delegate. The Court observes that in the applicant’s application for an intervention order she stated that she went to G’s house to ask him about a divorce, and he said he would divorce her if she paid him money (CB 379). The Tribunal referred to the statement in the application for an intervention order in its summary of the applicant’s evidence ([30]).
The relevant paragraphs in the applicant’s written submission to the Tribunal stated as follows (CB 350-351):
28. After their separation, the Applicant called G’s sister and informed her that she and G were actually married and that it was a private affair and that they should not intervene.
30.This information infuriated G’s family even more and resulted in them sending abusive messages and frequently calling the Applicant to threaten her. The Applicant informs that she had changed her telephone number numerous times in an attempt to stop receiving such threats however, they have always found a way to obtain her new number again.
31.As the Applicant and G already married, despite the families not knowing G’s family demanded a dowry payment from the Applicant’s family. They were further infuriated when they [sic] out that the Applicant’s family did not have the means to pay for this and threatened to also harm the Applicant’s family.
32.The Applicant continued to receive threatening messages and telephone calls from G’s family about how she has ruined G’s life. They have claimed that he now has an unmarried status with someone of a lower cast [sic] after finding out about the divorce. In addition, the Applicant took an IVO against G in the past which she believes has made the family think he is now undesirable to future wives and this is the reason that he remains unmarried.
33. Since 2014 until now, the Applicant received various calls from G’s family and had changed her phone number approximately five times.
…
35.Although the Applicant and G are now separated and are no longer in contact, she fears returning to India as she believes G’s family are still looking to harm her and seek revenge for what she has caused. The Applicant has met the family and therefore they know exactly who she is and where her and her family are from.
…
68.The Applicant fears her second husband’s family as they believe she is the cause of his misfortune. In particular, she fears that upon her return to India, they will harm her as revenge [sic] what they believe she has triggered in their son’s life. She has continuously received threatening messages form the family threatening harm if she were to ever return to India.
The applicant’s submission to the Tribunal then set out relevant country information regarding inter-caste marriages and how women in inter-caste marriages are treated (CB 351-352).
It is not clear to the Court from the various submissions or the Tribunal’s reasons for Decision how and when it is said that G’s family found out about the divorce. That would have been relevant to the applicant’s claim as to G’s family’s response to their son now being someone who had been in a failed inter-caste marriage and therefore the issue of the Tribunal’s consideration of this aspect of the applicant’s claim.
Nevertheless, it is not in contest that the applicant submitted to the Tribunal that G’s family had claimed that he now has an unmarried status with someone of a lower caste after finding out about the divorce. The Tribunal referred to this claim at [20(e)] and [66] by reference to paragraph 32 of the applicant’s written submission to the Tribunal.
The applicant’s submission that the Tribunal failed to consider the inter-caste aspect of the failed marriage focuses upon the Tribunal’s reasons at [66]-[70]. It is useful to set out those paragraphs in full (footnotes omitted):
66.The applicant's evidence is that their relationship is at an end and they are now divorced. As such, G is free to marry in accordance with his families wishes. However, the applicant claims that she has continued to receive threatening phone calls and messages from G's family about how she ruined his life. The applicant states that they claim he now has an unmarried status with someone in a lower caste after finding out about the divorce. In addition, the applicant states that his family believe that G remains unmarried as he is now undesirable to future wives because the applicant took out an Intervention Order against him.
67.According to the India Human Development Survey, conducted by the National Council of Applied Economic Research (NCAER) and the University of Maryland, only 5% of Indians have embraced inter-caste marriage. However, according to a study done by researchers from Princeton University in 2011 Punjab has one of the highest rates of inter-caste marriages at 22.36 percent. However, the study found evidence of a very strong own-caste preference. The preference was found to be more horizontal rather than vertical. That is, there was little interest in 'marrying up' in the caste hierarchy but rather a strong preference for caste matches. Accordingly, the Tribunal accepts that people prefer and are encouraged to stick to their own caste.
68.India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal. The Special Marriage Act (1954) provides an alternative to each of the various religious personal laws for those citizens who choose to marry outside their faith. The religion of the parties to a marriage is immaterial under the Act. However, arranged marriages continue to account for the overwhelming majority of marriages across India. Parents or other family members often assume sole responsibility for deciding whom their children marry, particularly in northern India. Many parents consider arranging a marriage for their children a right and a duty, and may not accept their son or daughter choosing their own spouse. The DFAT report notes that the acceptance of marriages outside of castes or religion, or even of marriage partners not chosen by the family, depended heavily on individual family beliefs. Some families, particularly in urban areas, are more accepting, whereas others are extremely conservative and do not allow their children to choose spouses. Therefore, based on the applicants evidence and the available country information the Tribunal accepts that G's family would want to have control of who he marries and would object to an inter faith or inter- caste marriage for their son. However, the applicant and G are now divorced and he is now free to marry in accordance with his family's wishes.
69.The applicant states despite the fact that they are now separated and no longer in contact, she fears returning to India as she believes that G's family are still looking to harm her and seek revenge due to the fact that he remains unmarried [and] now is undesirable to future wives. However, the Tribunal notes that while divorce rate in India are relatively low, it has increased considerably in recent years and is no longer considered a rare event. People in India are now willing to end a marriage that is not working. A subtle shift in the underlying socio-cultural fabric of the country including the reduced influence of the joint family and women becoming more psychologically and financially independent has caused people more willing to end their marriage in divorce. As a result it is reported that there has been a marked reduction in the stigma associated with divorces. Therefore, while it may be the case that G has not married in accordance with his family's wishes that Tribunal does not accept the applicant's evidence that she is held responsible by his family for him being undesirable to future wives. The applicant’s was not able to provide any evidence as to G’s circumstances. In fact it was her evidence that she no longer had any contact with within [sic]. Therefore, given that the applicant's relationship with G is at a complete end, the Tribunal does not accept that his family would have any on going interest in the applicant.
70.The Tribunal has found that no dowry was demanded by G's father as claimed. In addition the Tribunal notes that despite the alleged threats by G's family to kill her and her family, they remain living in India unharmed and her father remains oblivious to the fact that the applicant was in a relationship with G. As such, the Tribunal does not accept that the applicant's family were threatened by G’s family as claimed. Accordingly it finds that there is no real chance the applicant will suffer serious harm by G's family as claimed.

The applicant’s submission (AS [11]-[17]) is that those reasons do not address G’s “undesirability” by reason of his having previously been married to someone of a different caste. The Court does not accept that submission for the following reasons.
The claim of G’s “undesirability” to future wives was not put by the applicant in her submission to the Tribunal as one arising from the failure of their inter-caste marriage. “Undesirability” to future wives was squarely put as a claim arising from the fact that she had taken out an intervention order against G. The Court agrees with the first respondent’s submission (FRS [35]) that the inter-caste aspect of the marriage went to issues of shame and honour killings which the Tribunal considered at [39]; [42]-[44]; [49]; [62]; [68]; [69] and [71]-[75].
Having stated the applicant’s claim at paragraph 32 of the submissions to the Tribunal – G’s family’s claim that he now has an unmarried status with someone in a lower caste – the Tribunal considered:
(a)that the statistics demonstrate a preference for caste matches ([67]);
(b)based on the applicant’s evidence and the country information, G’s family would want to have control of who he marries and would object to an inter faith or inter-caste marriage for the son, but that as he is now divorced, he is free to marry in accordance with his family’s wishes ([68]);
(c)that there has been a marked reduction in the stigma associated with divorces ([68]).
Those factors led the Tribunal to conclude that whilst G had not married in accordance with his family’s wishes, it did not accept the applicant’s evidence that G’s family held her responsible for G being undesirable to future wives ([69]). The Tribunal did not accept that G’s family would have an ongoing interest in her because her relationship with him is at a complete end. The Tribunal considered that the applicant had no further contact with him and was unable to provide any evidence as to his circumstances ([69]).
The Tribunal considered the stigma associated with inter-caste marriages and the stigma associated with divorce. The Court accepts that the Tribunal’s reasons do not clearly articulate that it considered the particular stigma claimed to be associated with parties in an inter-caste marriage who divorce. However, the Court is satisfied that reading the Tribunal’s decision as a whole and without an eye finely attuned to error, the Tribunal understood that the marriage had been an inter-caste marriage – of which G’s family would not have approved – and that it had ended in divorce. The Court is satisfied that the Tribunal was considering the applicant’s claim of fear said to arise from that state of affairs in its reasons at [66]-[69].
In any event, the Tribunal ultimately rejected the applicant’s claim to fear harm from G and his family irrespective of the motivation for that fear. The Tribunal accepted the applicant’s evidence that she did receive threatening phone calls from G’s family, but it did not accept that the threats continued as claimed by the applicant ([62]) and did not accept that after the divorce the family would have any ongoing interest in her as claimed ([69]). Further, although the applicant did not specifically claim she would be a victim of an honour killing by G’s family, the Tribunal considered the applicant’s claim that she will be killed by G’s family if she returned to India by reference to the issue of shame brought upon the family. The Tribunal considered the country information regarding honour killings including with respect to inter-caste marriages ([71]-[74]). The Tribunal concluded that it did not accept that the applicant had been threatened as claimed ([75]). The Court agrees with the first respondent’s submission that this was sufficient to dispose of the applicant’s protection claim, particularly where it was advanced on the basis that the threats had continued (FRS [34]).
No jurisdictional error is established on ground one of the amended application.
Ground two: failure to consider the applicant’s complementary protection claim
Ground two of the application is limited to the Tribunal’s decision with respect to the applicant’s complementary protection claim so far as it was concerned with a claim of real risk of significant harm by, as a divorced single woman, being subjected to degrading treatment such as exclusion from society and employment based on her marital status.
In the submission to the delegate dated 15 March 2016 the applicant claimed that as a divorced, single woman she feared she will be subject to degrading treatment, such as exclusion from society including accommodation and employment based on her marital status (CB 129 para. 107).
It was submitted that it was not reasonable for the applicant to relocate to an area of India where there would not be a real risk of significant harm (CB 129 para. 108) because the applicant would be forced to find accommodation for herself and based on country information, she would be unable to access housing (CB 125-126 paras. 90-93). The country information was set out in the section of the submissions dealing with the applicant’s claims with respect to refugee status based upon her belonging to the particular social groups of Indian women who have married outside their own caste; Indian women who fail to honour arranged marriages and divorced women of Sikh religion. The country information was that women residing alone may be viewed as having suspect reputations and may have to have family members vouch for them and that women from lower caste backgrounds or lower income groups may have additional burdens of caste discrimination and may not have the financial means to gain access to housing (CB 126 para. 92). No country information or other evidence was referred to in respect of access to employment.
In the submission to the Tribunal under the heading of “Assessment of protection obligations under the complimentary protection provision under s 36(2)(aa)”, it was submitted that as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk she will suffer significant harm (CB 358). This was submitted to be “due to the reasons and the context set [out] above” (which was a reference back to the applicant’s claims for protection as a refugee) and referred to the country information that had earlier been outlined in the submission (CB 358). It was further claimed that:
102. As a divorced single woman, the Applicant fears that she will be subject to degrading treatment, such as exclusion from society and employment based on her marital status amounting to ‘degrading treatment’ and ‘punishment’ as consistent with the above country information.
As to relocation under the heading “single woman and inability to relocate”, the submission (CB 352-353) stated that (footnotes omitted):
48. If the Applicant were to return to India, relocation will be unreasonable given that the risk exists in all areas of the receiving country and the additional hurdles she will have to face as a single woman. Country information indicates that single women and divorced women face significant social stigma, abuse and violence in India.
49.May 2015 Immigration and Refugee Board of Canada indicate that only widows, or widows and divorcees, were recognised as single women for access to government programmes. The sources included a 2014 Press Trust of India article, which ‘quotes a member of the National Forum for Single Women’s Rights as stating that ‘“or [sic] the government, only widowed women qualify as single women leaving out the vast number of separated, abandoned, single mothers or older women who never married [from access to government programs]”
The “risk” referred in paragraph 48 appears to be a reference back to the fear it was submitted the applicant claimed (in respect of her marriage to S) of treatment by the religious community and the severe consequences of being a divorced Sikh woman and failure to honour an arranged marriage (CB 349) and her claims (in respect of her marriage to G) of harm from G’s family (CB 350).
The country information referred to was that in relation to arranged marriages and Sikh divorced women are at risk of cruel and degrading treatment; the treatment of women in inter-caste marriages by reference to honour crimes; that single women and divorced women face significant social stigma, abuse and violence in India; and that only widows, or widows and divorcees, were recognised as single women for access to government programmes (CB 351-353). It was then submitted that:
50. Given the above information, we submit that the Applicant will be unable to relocate due to insufficient savings, lack of support and an ineligibility to obtain government assistance, which would limit her ability to safely relocate within India.
As to access to government programmes, it was explained to the Court that as a Sikh divorced woman, the proposition to be drawn from the country information is that the applicant would not be eligible to obtain government assistance because the applicant would not be recognised as a divorced woman as she had been in a Sikh marriage.
The submission concluded that this risk exists in all areas of the receiving country “as outlined in the paragraphs above” (CB 359).
The Court agrees with the first respondent’s observation (FRS [42]) that the applicant’s complementary protection claim was expressed in a relatively disaggregated fashion. That does create a challenge in piecing together the claims made, and the country information relied upon in respect of the claims.
Nevertheless, the Court agrees with the applicant’s submission that a claim to degrading treatment by reference to exclusion from employment was made in para. 102 of the submission to the Tribunal. The Court does not understand that the first respondent contested this.
The applicant’s ground of review and written submissions proceeded based on the applicant’s claim that she will be subject to degrading treatment such as exclusion from society and employment based on her marital status (AS [19]). In oral submissions, the applicant’s counsel also submitted that the applicant made a claim of degrading treatment amounting to significant harm based upon access to accommodation. As noted above, country information on access to accommodation was referred to in the submission to the delegate dated 15 March 2016. A claim about access to accommodation was not made to the Tribunal. As a result, it is not clear that access to accommodation was something which was put to the Tribunal. The Court accepts that this claim was made to the delegate but considers that it was not a claim that was clearly made before the Tribunal.
The Tribunal described the applicant’s claim to complementary protection at [87]-[88] of its reasons for Decision as follows (footnotes omitted):
87. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of India and the Tribunal therefore finds that India is the ‘receiving country’ for these purposes.
88. The applicant claims that she satisfies the requirements under s.36(2)(aa) by reason that she faces a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading and treatment or punishment. The applicant claims that she has been threatened by G's family as a result of him marrying her without their consent and knowledge. She claims that her [sic] family have objected to the marriage on the basis it was an inter-caste marriage, that they were not paid a dowry and that since they are now divorced G is no longer attractive to other potential 'suitable' wives.
The Tribunal found that, based on the findings it had already made, there was not a real risk that the applicant will suffer significant harm from G’s family if she returns to her local area in India ([89]).
The applicant’s contention here is that the Tribunal in [87]-[89] did not consider the harm alleged by the applicant – degrading treatment – by reason of exclusion from society and employment based on her marital status. It is not clear what was intended in para. 102 of the submission to the Tribunal (set out above) by marital status, that is, whether it was a reference to the applicant’s status as a divorced Sikh woman who had not honoured an arranged marriage or a divorced woman from an inter-caste marriage or both. Further, it is not clear what was meant by the ‘exclusion’ from employment. No country information or evidence was included in the submissions about exclusion from employment.
It is apparent from [87]-[89] that the Tribunal did not consider – at least not in those paragraphs – the applicant’s claim to be at risk of significant harm by reason of exclusion from society and employment based on her marital status. That claim had, of course, nothing to do with the alleged threats by G’s family. The claim required the Tribunal to consider whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to India there was a real risk she would suffer significant harm by being subjected to degrading treatment by reason of being excluded from society and employment based on her marital status (s 36(2)(aa); s 36(2A)(e)). The next step was for the Tribunal to consider whether it was satisfied that it would be reasonable for the applicant to relocate to an area of India where there would not be a real risk that she will suffer the claimed significant harm (s 36(2B)(a)).
What the Tribunal did do, after finding there was not a real risk that the applicant will suffer significant harm from G’s family if she returns to her local area in India, was to go on to consider whether it was reasonable for the applicant to locate to New Delhi or Chandigarh ([90]-[94]). The question for the Court is whether, on a fair reading, of the Tribunal’s reasons as a whole it can be said that the Tribunal did consider the applicant’s claim that she will suffer significant harm by reason of exclusion from society and employment based on her marital status and, in that event, consider reasonableness of relocation with respect to that claim to a risk of significant harm.
The Court is satisfied that the Tribunal did consider and dispose of both issues, albeit not in the most logical way, and that a fair reading of the reasons demonstrate that the Tribunal did appreciate that the applicant’s claim to complementary protection was not limited to a real risk of significant harm the applicant claimed she would suffer from G’s family and the reasonableness of relocation in that context:
(a)At [91], the Tribunal considered the applicant’s claim at the hearing that her employment opportunities would be limited. The Tribunal said that the applicant was young and resourceful which it said she had demonstrated in finding employment in Australia and supporting herself after her divorces. The Tribunal said that, in any event, the difficulty the applicant would incur in finding work based on her ‘particular circumstances’ would not constitute significant harm in the sense that she would be deprived of her life, tortured, subjected to cruel or inhuman treatment or punishment or be subjected to degrading treatment or punishment. The Tribunal concluded that the applicant would be able to access paid employment into the reasonably foreseeable future;
(b)The “particular circumstances” the Tribunal was there referring to can be fairly read as reference back to the other matters the Tribunal set out in [81]: the applicant comes from a family of means; she is Sikh and able to speak, read and write Hindi and Punjabi; she had demonstrated (at the hearing) some command of English; and, she had obtained a qualification in hospitality management;
(c)Accordingly, the Tribunal’s reasons demonstrate that it did consider the issue of whether the applicant would suffer degrading treatment with respect to her claim of exclusion from employment. The Tribunal found that she would not for the reasons given. That was sufficient to dispose of the applicant’s claim in that respect;
(d)The Tribunal, in any event, can fairly be said to have considered reasonableness of relocation in the context of exclusion from employment. Although in the context of its consideration of the applicant’s status as a refugee and the different statutory requirement that the real chance of persecution relate to all areas of the receiving country (s 5J(1)(c)), the Tribunal considered country information regarding internal relocation which the Tribunal said indicated that relocation may be limited by a range of factors including employment opportunities ([78]). But, the Tribunal had found that the applicant would be would be able to access paid employment into the reasonably foreseeable future [91];
(e)As to exclusion from society, this claim seemed to be put based on the applicant’s claim that although she did not fear harm from her family, she feared “the treatment of the religious community and the severe consequences of being a divorce Sikh woman and failure of honouring an arranged marriage” (submission to the Tribunal at CB 349).
(f)At [93], the Tribunal considered the country information about the acceptance of divorce in India and how women are treated post-divorce which it said depended on the individual’s circumstances, financial position and position in society. The Tribunal said it accepted that the applicant would, by reason of her divorce, be subjected to discrimination in her local area. It is not clear here whether the Tribunal was making a positive finding that such discrimination would amount to degrading treatment or punishment;
(g)In any event, having made the finding it did, the Tribunal considered whether the applicant would be “subject to targeted harm from a community outside of her home area on the basis of her religion, her inter-caste marriage or the fact that she is divorced”. It found that there was no evidence that she would be subject to targeted harm from a community outside her home area on the basis of her religion, inter-caste marriage or being divorced ([93]). The Tribunal said that it appeared that the applicant would not encounter discrimination or persecution, beyond the normal risks to her personal safety and wellbeing, in other areas of the country particularly in large urban areas such as New Delhi or Chandigarh and that as such there is not a real risk that the applicant will be harmed in the event that she relocates to a city such as New Delhi or Chandigarh ([93]), that it would, in all the circumstances, be reasonable for the applicant to relocate to avoid the real risk of significant harm ([95]).
For those reasons, the Court is satisfied that the Tribunal did consider the applicant’s claim to complementary protection by reason of exclusion from society and employment based on her marital status.
No jurisdictional error is established on ground two of the amended application.
CONCLUSION
Accordingly, for the reasons given above, the amended application is dismissed.

I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.
Associate:
Dated: 23 April 2025

File number(s):	MLG 2064 of 2019
Judgment of:	JUDGE COULTHARD
Date of judgment:	23 April 2025
Catchwords:	MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – no jurisdictional error established – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 5H; 5J; 36; 414; 476
Cases cited:	Carrascalaov Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582
Division:	Division 2 General Federal Law
Number of paragraphs:	120
Date of last submission/s:	17 March 2025
Date of hearing:	17 March 2025
Place:	Brisbane
Counsel for the Applicant:	Mr Guo
Solicitor for the Applicant:	Carina Ford - Carina Ford Immigration Lawyers
Counsel for the First Respondent:	Mr Lessing
Solicitor for the First Applicant:	Ms Chamakala - Clayton Utz
Second Respondent:	The second respondent filed a submitting appearance, save as to costs

MLG 2064 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	COM19 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE COULTHARD
DATE OF ORDER:	23 APRIL 2025