1812445 (Refugee)

The applicant sought a protection visa, fearing serious harm or death if returned to India due to her ex-partner and his relatives. She also claimed that Indian authorities would not provide effective protection and that she, as a single mother with a child with a disability, would have no safe place to relocate within India. The decision under review was made by the Refugee Tribunal.

The legal issues before the court concerned whether the applicant met the criteria for a protection visa, specifically under section 36(2)(a) of the Migration Act 1958, which relates to being a refugee, or under section 36(2)(aa), which pertains to complementary protection due to a real risk of significant harm. The court was required to consider the applicant's claims of domestic violence, threats from her ex-partner and his family, and the lack of effective state protection in India.

The court reasoned that while the applicant might not satisfy the refugee criterion under s 36(2)(a) on the basis of membership in a particular social group, she could still qualify for a protection visa under the complementary protection criterion in s 36(2)(aa). This section requires the Minister to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, there is a real risk of significant harm. The court noted that significant harm includes threats to life or liberty, torture, or cruel, inhuman, or degrading treatment or punishment. The court also considered the exceptions to a real risk of significant harm, such as the availability of reasonable relocation within the country or effective state protection, which the applicant claimed were not available to her.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act.