2301139 (Refugee)

This matter concerned a protection visa application made by a husband and wife, both born in India, and their child. The wife, who was of Sikh faith, and the husband, who was of Hindu faith, were in a mixed-faith marriage. The primary applicant, the wife, claimed she feared serious harm in India due to her father's past involvement with a Sikh separatist group, her own adverse interest with the police stemming from her father's background, and her inter-faith marriage. The delegate had found her claims not credible and was not satisfied that the applicants had a well-founded fear of persecution or were owed complementary protection. The second applicant, their child, had acquired Australian citizenship.

The legal issues before the Tribunal included whether the applicants met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) (well-founded fear of persecution) or section 36(2)(aa) (complementary protection). The Tribunal was also required to consider potential exclusion issues under section 36(3) concerning the first applicant's right to enter and reside in Nepal, and to determine if the applicants qualified as members of a family unit for the purposes of the visa application.

The Tribunal found that while the primary applicant's claims were not found credible by the delegate, the first named applicant met the protection visa criterion under section 36(2)(b)(i) of the Act. This was based on the definition of a "member of the family unit" in Regulation 1.12(4)(a) of the *Migration Regulations 1994* (Cth), which includes a spouse or de facto partner. The Tribunal considered it unnecessary to determine the exclusion issues regarding Nepal or the complementary protection criterion, as the first applicant was deemed to meet the criteria as a member of the family unit of his wife, who was the primary applicant.

The Tribunal remitted the decision for reconsideration.