1604503 (Refugee)

The matter before the Tribunal concerned a protection visa application made by three Indian citizens. The first applicant, an adult, claimed she and her husband, the second applicant, feared persecution in India due to their inter-caste marriage. The third applicant was their child, born after their arrival in Australia. The applicants had previously applied for and been refused a temporary business visa, with their subsequent review application also being affirmed by the Migration Review Tribunal. This protection visa application was lodged shortly thereafter.

The primary legal issue before the Tribunal was whether the applicants were owed Australia's protection obligations. This involved assessing whether the first applicant had a well-founded fear of persecution for reasons of membership of a particular social group, specifically in relation to her inter-caste marriage and the potential for honour killings. The Tribunal also considered the concept of "significant harm" under the complementary protection criterion and the availability of effective protection in India.

The Tribunal noted that the applicants had provided information regarding their secret marriage in 2008, their subsequent departure to Australia in 2009 to avoid repercussions from their families and community, and the influential position of the first applicant's father within the ruling political party. The applicants claimed that if they returned to India, they would face a real risk of honour killings, cruel and inhuman treatment, or degrading treatment, and that Indian authorities, including the police and Khap panchayats, would not provide effective protection. The Tribunal considered the relevant policy guidelines and country information assessments.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. It found that the first applicant's husband and son were members of the same family unit and that their applications' fates depended on the outcome of the first applicant's application. The Tribunal directed that the first applicant satisfy section 36(2)(a) of the *Migration Act 1958*, and that the other applicants satisfy section 36(2)(b)(i) on the basis of their membership in the same family unit.