2106218 (Refugee)

This matter concerned an application for a protection visa by a young girl born in Australia to Indian citizen parents. The applicant claimed she would be at risk of gender-based harm and sexual abuse amounting to serious and significant harm from members of her family and the broader community in India, based on her membership in the groups of young women in India and/or vulnerable children in India. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for a protection visa.

The legal issues before the AAT included whether the applicant would face a real risk of significant harm if returned to India, and whether she belonged to a particular social group for the purposes of the Refugee Convention. Specifically, the AAT had to consider the applicant's claims of gender-based harm and sexual abuse, the relevance of her mother's history of abuse, and the potential impact of her family's circumstances and her own identity as a young Christian girl from a backward class in India. The AAT also had to assess the credibility of the applicant's claims in light of information provided by the Department regarding her sister's return to India.

The AAT considered the provisions of the Migration Act 1958 (Cth), including section 36(2)(aa) concerning complementary protection. It noted that significant harm is defined by sections 36(2A) and (2B) of the Act. The Tribunal was mandated to consider Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information assessments from the Department of Foreign Affairs and Trade. The AAT found that the applicant's claims regarding gender-based harm and sexual abuse, particularly in light of her mother's experiences and the applicant's status as a young girl and potentially vulnerable child in India, warranted further consideration. The Tribunal also noted that the applicant did not hold a passport and had never held one.

The decision under review was remitted to the Refugee Division of the Administrative Appeals Tribunal for reconsideration.