1615776 (Refugee)

The Administrative Appeals Tribunal considered the protection visa claims of an applicant and her daughter, nationals of India. The dispute concerned whether the applicants would face harm in India as members of particular social groups, and whether they feared persecution. The Tribunal assessed the claims against sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth).

The primary legal issues before the Tribunal were whether the applicant and her daughter would suffer harm as members of particular social groups, and whether they had a well-founded fear of persecution in India. This involved considering the effectiveness of state protection in India, particularly in light of gender-based violence and domestic abuse, and whether internal relocation offered a viable solution. The Tribunal also had regard to Ministerial Direction No. 56 and relevant policy guidelines and country information.

The Tribunal reasoned that the applicant and her daughter constituted particular social groups, including single/divorced women, single mothers in India, women who had breached religious and social norms by separating from their husbands, and female children without male protection. It found that the applicant had a real chance of serious harm, including violence and threats of death, arising from her membership of these groups. The Tribunal was not satisfied that the Indian authorities could provide effective protection, noting that despite the Protection of Women from Domestic Violence Act 2005, its implementation remained ineffective. Furthermore, the Tribunal considered that internal relocation would be difficult for single women with children due to the need to provide details of male relatives for accessing services and accommodation, and that no location within India would adequately mitigate the risk of harm.

The Tribunal concluded that the applicants had a well-founded fear of persecution and a real chance of serious harm on return to India. Consequently, the decision under review was remitted.