2102376 (Refugee)

The case concerned an application for a protection visa by an Indian national. The applicant and her spouse had arrived in Australia on student visas in 2008 and had a child who was an Australian citizen. The applicant's student visa was cancelled in 2016, and subsequent reviews by the Administrative Appeals Tribunal (AAT) and the Federal Circuit Court affirmed the decision not to grant a protection visa. The applicant lodged the current protection visa application in November 2019. The matter was heard by Member Nora Lamont of the Administrative Appeals Tribunal.

The central legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for one or more of the five prescribed reasons under section 5J(1) of the Migration Act 1958, and if not, whether there were substantial grounds for believing that as a necessary and foreseeable consequence of removal to India, the applicant faced a real risk of suffering significant harm. The Tribunal was required to consider the applicant's claims in light of the 'Refugee Law Guidelines', 'Complementary Protection Guidelines', and country information assessments, as mandated by Ministerial Direction No. 84.

The Tribunal considered the applicant's claims, which included allegations of threats from child kidnapping gangs in Punjab and a specific incident where her son was almost abducted. However, the Tribunal found that the applicant did not satisfy the criteria for a protection visa under section 36(2)(a) of the Act, as she did not demonstrate a well-founded fear of persecution. Furthermore, the Tribunal concluded that the applicant did not meet the complementary protection criterion under section 36(2)(aa), as there were no substantial grounds to believe she would suffer significant harm as a necessary and foreseeable consequence of removal to India. The Tribunal noted that the applicant's claims did not establish a real risk of persecution or significant harm that was not faced by the population generally, nor did it establish a lack of effective protection measures in India.

Consequently, the Tribunal affirmed the decision not to grant the protection visas. The Tribunal referred the applicants to the Minister for Ministerial Intervention under sections 501J and 417 of the Migration Act.