Protection Visa Claims Based on Caste and Inter-Caste Marriage

Protection visa claims based on caste and inter-caste marriage arise when a person faces violence because of the caste they were born into, or because they married, or wish to marry, someone from a different caste. In many communities that choice is treated as a betrayal of family and caste. The response can be threats, abduction, forced separation, social boycott, loss of work or killing.

Protection visa claims based on caste and inter-caste marriage are not a separate visa category. They are assessed under the same two tests that apply to every Subclass 866 claim: the refugee test in section 36(2)(a) of the Migration Act 1958 and the complementary protection test in section 36(2)(aa). What sets these claims apart is the way caste fits the Convention grounds, the role of families and caste councils as the source of harm, and the questions of state protection and relocation on which they are usually decided. This article explains each of those points.

Can caste or an inter-caste marriage support a protection visa?

Yes. Caste discrimination or an inter-caste marriage can support a Subclass 866 protection visa where the applicant has a well-founded fear of persecution for a Convention reason, or faces a real risk of significant harm, and effective protection is not available in their home country.

In protection visa claims based on caste and inter-caste marriage, caste itself is not the claim. The claim is the harm the applicant fears, who will inflict it, and why. Social disapproval, exclusion from family events or unkind treatment by relatives will not usually meet the legal threshold. A real chance of being attacked, abducted, forcibly separated from a spouse, driven out of work and housing, or killed may meet it.

Protection visa claims based on caste and inter-caste marriage are strongest when the applicant can show three things clearly:

• Who will harm them. A parent, sibling or wider family, a caste council or village body, members of a dominant caste, or local officials acting with them.
• Why they will be harmed. Because of the applicant's caste, the partner's caste, or because the marriage is seen as dishonouring the family or breaking caste rules.
• Why nobody will stop it. Because the police will not act, local officials share the family's view, or the family and caste network can find the couple anywhere in the country.

The definitive guide to the Subclass 866 protection visa explains the general criteria, and the guide to protection visa eligibility sets out what to check before applying. The rest of this article applies those criteria to protection visa claims based on caste and inter-caste marriage.

Which Convention grounds apply to protection visa claims based on caste and inter-caste marriage?

The Convention grounds most often relied on in protection visa claims based on caste and inter-caste marriage are race and membership of a particular social group. Section 5J(1)(a) of the Migration Act lists five grounds: race, religion, nationality, membership of a particular social group and political opinion. Under section 5J(4)(a), the Convention reason must be the essential and significant reason for the persecution.

Caste as race

Caste is a status fixed by birth and passed down through families. For that reason it can be argued as race, in the broad sense of the term that includes descent. A person cannot change the caste they were born into. The claim should explain how caste is identified in the applicant's community, for example by surname, place of origin, occupation or family records, and how that identification leads to harm.

Caste as a particular social group

Caste can also be framed as a particular social group. Section 5L sets out when a person is a member of a particular social group other than their family. The members must share a characteristic. That characteristic must be innate or immutable, or so fundamental to identity or conscience that the person should not be forced to renounce it, or it must distinguish the group from the rest of society. The characteristic cannot be the fear of persecution itself.

Caste usually meets these elements. It is inherited, it cannot be changed, and in many communities it clearly separates one group from another.

Inter-caste couples as a group in their own right

Inter-caste couples may also be argued as a particular social group in their own right. The shared characteristic is the marriage or relationship across caste lines, which is fundamental to identity and which the couple should not be forced to give up. This is an argument that depends on the evidence. The claim must show that inter-caste couples are recognised as a distinct group in the applicant's society and are treated differently because of it. It should not be the only ground relied on. Most strong protection visa claims based on caste and inter-caste marriage put forward every ground that genuinely applies, rather than choosing one and leaving the others unargued.

Where a family or community opposes a marriage because it crosses a line of faith or race rather than caste, the separate guidance on interfaith and interracial relationships applies. The general question of when caste or ethnic discrimination is serious enough to amount to persecution is dealt with in separate guidance on ethnicity and caste.

Who is at risk in protection visa claims based on caste and inter-caste marriage?

In protection visa claims based on caste and inter-caste marriage, both partners, their children and sometimes members of their wider family can be at risk, and each person's position must be assessed on its own facts. The risk is rarely the same for each of them.

• The partner from the dominant caste. This partner, often the woman, is frequently seen by relatives as having brought shame on the family. The pressure on this partner may include confinement, abduction back to the family home, threats, beatings and pressure to annul the marriage and marry within the caste.
• The partner from the lower caste. This partner often faces the most serious physical danger. The dominant-caste family may blame this partner for the relationship. Reported harm includes serious assaults, false criminal complaints of abduction, and killing.
• The couple's children. Children of inter-caste marriages may face exclusion, difficulty with caste certificates or community records, and a risk of being taken by one side of the family.
• Relatives of the lower-caste partner. Parents and siblings may face reprisals, attacks on their home or loss of work in the village.

Where family members are harmed, section 5K may be relevant. It requires a decision maker to disregard persecution of a family member where the reason for that persecution is not a Convention reason. Where relatives are targeted because of caste, the reason is a Convention reason, and their experience can support the applicant's claim. The Subclass 866 protection visa page explains how a partner and children are included in one application, and the guide to permanent protection visa eligibility explains the criteria each applicant must meet.

What harm counts in protection visa claims based on caste and inter-caste marriage?

In protection visa claims based on caste and inter-caste marriage, the harm must be serious harm for a refugee claim, or significant harm for a complementary protection claim. Family disapproval is not enough.

Section 5J(5) of the Migration Act gives examples of serious harm. They include a threat to life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens the person's capacity to subsist, denial of access to basic services that threatens that capacity, and denial of the capacity to earn a livelihood of any kind where that threatens the capacity to subsist. Under section 5J(4)(c), persecution must also involve systematic and discriminatory conduct. The harm must be directed at the person for a reason, not random.

The harm most often raised in protection visa claims based on caste and inter-caste marriage includes:

• threats to kill one or both partners, made by relatives or by members of the dominant caste;
• killings carried out in the name of family or caste honour;
• abduction of one partner, usually the woman, by her own family;
• forced separation of the couple and pressure to annul the marriage;
• decisions of caste councils or village bodies ordering the couple to separate, pay penalties or leave;
• social boycott of the couple and their families, including refusal of work, trade, water, land or housing; and
• false criminal complaints filed against the lower-caste partner to force the couple apart.

Social boycott needs particular attention. On its own, exclusion may look like discrimination rather than persecution. But where a family is denied work, land, trade and basic services to the point that it cannot support itself, the harm can fall within the examples in section 5J(5). In protection visa claims based on caste and inter-caste marriage, the incidents should be set out together, so the decision maker sees the cumulative effect rather than a list of separate slights.

Two related subjects are covered in separate articles. Violence carried out in the name of family honour is the subject of My Migration Lawyers' guidance on honour-based violence. Where the family's response is to force one partner into a marriage within the caste, that harm is dealt with in the guidance on forced marriage claims.

Can the Department say the couple should separate or hide the marriage?

In protection visa claims based on caste and inter-caste marriage that are assessed as refugee claims, the Department cannot require the applicant to remain in a marriage they oppose, or to accept a forced marriage, to avoid harm. Whether it can expect the couple to separate, or to hide a marriage they chose, is not directly answered by the Act, and that point must be argued.

Section 5J(3) says a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution. That rule does not apply to a modification that would conflict with a characteristic fundamental to the person's identity or conscience, or that would conceal an innate or immutable characteristic. Section 5J(3)(c) also lists modifications a person can never be required to make. They include concealing their true race, ethnicity, nationality or country of origin, and entering into or remaining in a marriage to which the person is opposed.

That list gives real protection in protection visa claims based on caste and inter-caste marriage. A woman cannot be told to return, leave her husband and marry the man her family chose. An applicant cannot be told to hide their caste by passing as a member of another caste, where caste is argued as race or ethnicity.

The chosen marriage itself is not named in the list. A decision maker may therefore ask whether the couple could live apart, or keep the marriage secret. That question should be answered directly. A genuine marriage, a shared home and the raising of children are fundamental to identity. Requiring a couple to separate, or to live as if they were not married, is not a reasonable step, and the claim should say so expressly. This is an argument made on the facts of each case, not a settled rule, and a claim that is silent on it invites a finding against the applicant.

Laws against caste discrimination and effective state protection

Laws against caste discrimination do not by themselves mean that effective protection is available. In protection visa claims based on caste and inter-caste marriage, the question is whether the police and courts actually protect a couple under threat, not whether a statute exists.

Several countries where caste operates have constitutional rules and criminal laws that prohibit caste discrimination and caste violence. Decision makers often rely on those laws. The answer must come from evidence of how they work in practice.

For a refugee claim, section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available. Section 5LA explains that effective protection measures are available if the relevant State, or a party or organisation that controls the State or a substantial part of its territory, is willing and able to offer protection. It is taken to be able to offer protection only if the person can access the protection, the protection is durable, and it consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

Each of those elements is open to challenge in protection visa claims based on caste and inter-caste marriage. The police may refuse to register a complaint from a lower-caste person. Local officers may share the dominant caste's view of the marriage, or be connected to the family. The police may treat the woman's family's abduction complaint as the real case and act against the husband. Prosecutions may take many years, during which the couple remains exposed. The Department's guidelines direct officers to consider whether the state is reluctant to become involved or turns a blind eye.

For complementary protection, section 36(2B)(b) asks a separate question: whether the applicant could obtain protection from an authority of the country such that there would not be a real risk of significant harm. The Complementary Protection Guidelines state that findings under the refugee test cannot simply be adopted for this test. The page on complementary protection explains the difference.

Can an inter-caste couple relocate within their home country?

Often, relocation is not a real answer in protection visa claims based on caste and inter-caste marriage, but the decision maker will still test it, and the claim must address it with evidence. The test differs under each framework.

For a refugee claim, the real chance of persecution must relate to all areas of the country under section 5J(1)(c). For complementary protection, section 36(2B)(a) asks whether it would be reasonable, in the sense of practicable, for the applicant to relocate to an area where there would be no real risk. The Department's guidelines direct officers to consider the motivation and ability of a non-state agent to pursue the applicant.

Protection visa claims based on caste and inter-caste marriage usually have strong points on relocation:

• Networks. Families and caste groups often have members in many cities and can locate a couple through relatives, employers or community associations.
• Records. Marriage registration, identity documents, school records and surnames can reveal caste and home district.
• Visibility. An inter-caste couple may be identified wherever they live, because caste is asked about when renting, working or enrolling children in school.
• Motivation. A family that sees the marriage as a matter of honour may pursue the couple for years.

The guide to Form 866 explains where these points are set out in the application.

When complementary protection applies in caste claims

Complementary protection applies in protection visa claims based on caste and inter-caste marriage where the applicant does not meet the refugee test but there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of significant harm.

Section 36(2A) defines significant harm as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. That list is closed. A credible threat by relatives to kill a couple for marrying across caste lines can fall within arbitrary deprivation of life. Serious assaults intended to punish or humiliate a lower-caste partner may fall within cruel or inhuman or degrading treatment, provided the pain, suffering or humiliation is intended.

Complementary protection matters in protection visa claims based on caste and inter-caste marriage because the Convention reason may be disputed. A decision maker may find that a family acted out of personal anger or property disputes rather than caste. A well-prepared claim argues both frameworks from the start. The Subclass 866 protection visa guide explains how the two tests fit together in one application.

Evidence for protection visa claims based on caste and inter-caste marriage

The evidence for protection visa claims based on caste and inter-caste marriage must prove three things: the caste of each partner, that the marriage or relationship is genuine, and that the harm feared is real. Many applications prove the second well and the third poorly.

Evidence of caste and of the relationship may include:

• caste certificates, community records or other documents that show each partner's caste;
• marriage records, including any registration or religious ceremony documents;
• photographs of the couple and their children; and
• messages between the partners over time.

Evidence of the harm feared may include:

• threatening messages, voice notes or call records from relatives, preserved with their date and source;
• decisions or notices of a caste council or village body;
• medical records or photographs of injuries from past attacks;
• copies of police complaints and the response, or an explanation of why no complaint was made;
• statements from witnesses who saw threats or violence, or who know the family's position; and
• country information on caste violence, police response to inter-caste couples and the reach of caste networks.

The applicant's own written account carries the claim. It should explain how the relationship began, when each family found out, what each family did, who made each threat, and why the applicant believes the threats would be carried out on return. The guide to the protection visa statement of claims explains how that account is structured, and the guides to protection visa evidence and the protection visa documents checklist explain what supports it.

A marriage that took place in Australia

Under section 5J(6), any conduct engaged in by the applicant in Australia is disregarded in a refugee claim unless the applicant satisfies the Department that it was engaged in otherwise than for the purpose of strengthening the claim to be a refugee. A couple who meet and marry in Australia can still make genuine protection visa claims based on caste and inter-caste marriage. But they must be ready to show that the relationship is real and was not formed to create a protection claim. Section 5J(6) applies only to the refugee test. It does not apply to complementary protection.

The history, timing and genuineness of the relationship will be examined at interview. The pages on the protection visa interview and protection visa interview questions explain what to expect.

Is a partner visa available instead?

A partner visa may be available if one partner is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, and that question should be answered before a protection visa is lodged.

A protection visa application commits the applicant to a detailed account of the danger they face at home. A partner visa does not require proof of that danger. In some cases both pathways are relevant, and the order in which they are pursued matters. My Migration Lawyers acts in both types of matter, and the partner visa lawyers page explains the partner pathway. Where neither partner has Australian status, a protection visa may be the only option, and a partner and dependent children may be included as members of the family unit.

What if protection visa claims based on caste and inter-caste marriage are refused?

If the Department refuses protection visa claims based on caste and inter-caste marriage, the decision can usually be reviewed by the Administrative Review Tribunal. The time limit to apply is short and strictly applied, and it runs from the date the applicant is notified of the decision.

Refusals in these claims usually rest on one of four findings: that the caste or the marriage has not been established, that the threats are not credible, that the police would protect the couple, or that the couple could safely relocate. Each finding can be tested on review with better evidence and clearer argument. The pages on protection visa refusals, appealing a refused protection visa to the ART and the protection visa ART hearing explain the process.

How My Migration Lawyers acts in protection visa claims based on caste and inter-caste marriage

My Migration Lawyers acts in protection visa claims based on caste and inter-caste marriage for couples and families already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims where the danger comes from families and communities and the case turns on state protection and relocation. It is capable of handling these matters from the first consultation to decision, and at ART review if the visa has been refused.

The work includes:

• Checking the pathway first. Before anything is lodged, the firm considers whether a partner visa or another option is available, and which order makes sense.
• Each partner's account. Each adult's account is taken separately, with an interpreter where needed. It is their own evidence, which they review and correct before it is lodged, and each person decides which claims are advanced.
• Caste as a Convention ground. The claim is presented under race and particular social group as the facts support, and under complementary protection as well.
• State protection in practice. Current country information is used to show how the police and local officials actually respond to inter-caste couples.
• Relocation. The reach of the family and caste network, and the records that reveal caste, are addressed with evidence.
• Interview and review. Each applicant is prepared for interview, and a refused claim is assessed for ART review within time.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers page explains how it acts in Subclass 866 matters more generally.

If you or your partner face danger at home because of caste or because of who you married, book a consultation with My Migration Lawyers online, or call 1300 040 300.