1415373 (Refugee)

The Administrative Appeals Tribunal considered the protection visa applications of a mother and her daughter. The applicants arrived in Australia in September 2012 and had not departed. The first applicant, of Hazara ethnicity and Shia Muslim faith, had fled Afghanistan in 1998 due to the Taliban and had not returned. She had previously experienced domestic violence in a marriage in [Country 1] and had divorced a second husband in Australia in 2016. The central dispute was whether the first applicant would face harm upon return to Afghanistan.

The Tribunal was required to determine if the first applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), which concerns obligations under the Refugees Convention, or under section 36(2)(aa), which relates to complementary protection grounds due to a real risk of significant harm. The Tribunal also needed to consider the application of the second applicant, her daughter, who would be eligible for a visa if the first applicant met the criteria and they were considered members of the same family unit.

The Tribunal found that it was not satisfied that the first applicant met the criteria for a protection visa under either the refugee or complementary protection grounds. However, it was satisfied that the second applicant was the daughter of the first applicant and thus a member of the same family unit. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the matter for reconsideration with directions that the first applicant satisfies section 36(2)(a) of the Migration Act, and that the second applicant satisfies section 36(2)(b)(i) on the basis of membership of the same family unit as the first applicant.