1621469 (Refugee)

The applicants sought review of a decision by the Refugee Tribunal to refuse their applications for protection visas. The first applicant, a woman from Punjab, India, claimed she feared sexual assault and kidnapping upon return to India, particularly for her children. The other applicants, her husband and two children, did not make independent claims for protection.

The primary legal issues before the court were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, which requires Australia to have protection obligations because the person is a refugee, or under section 36(2)(aa), which concerns complementary protection where there is a real risk of significant harm as a necessary and foreseeable consequence of removal. This involved considering whether the first applicant had a well-founded fear of persecution for reasons of membership of a particular social group, and whether any of the applicants faced a real risk of significant harm.

The Tribunal considered the evidence in light of Ministerial Direction No. 84 and relevant guidelines. It found that the first applicant had not experienced harm in India and had not sought help within India. While she expressed a fear of sexual assault and kidnapping, the Tribunal was not satisfied that these fears were well-founded or that Indian authorities could not protect her, nor that relocation within India was unreasonable. Consequently, the Tribunal concluded that the applicants did not satisfy the criteria for a protection visa under either section 36(2)(a) or 36(2)(aa).

The Tribunal affirmed the decision not to grant the applicants protection visas.