Tribunal Member: Roslyn Smidt

The applicant is an unmarried woman from India who first arrived in Australia on a student visa in June 2006. In her protection visa application, the applicant said that she left India to further her studies and to be relieved from the social and cultural pressure to marry. She said that arranged marriages were common in India and she feared that her family would force her to marry if she returned. She claimed that being forced to marry constituted serious harm as she would lose her liberty and suffer psychological harm. The applicant’s request for a protection visa was denied and the AAT was asked to review the decision.

Australia has an obligation under the Migration Act 1958 to protect individuals who satisfy one of two criteria.[1] The first is called the ‘refugee criterion’ and broadly requires an applicant to have a ‘well-founded fear of persecution’.[2] The second is called ‘complementary protection’ and broadly requires that there is ‘a real risk of significant harm’ to the applicant.[3]

The AAT was not satisfied the applicant would be forced to marry against her will or that she would face physical harm or serious or significant harm from members of her family for choosing to remain single. The AAT considered evidence that the applicant had returned to India on two occasions and that at the conclusion of those visits she had not been prevented from coming back to Australia by family members. The AAT also noted that there was no suggestion that the applicant had suffered physical abuse or serious harm of any kind on those occasions. The AAT was not satisfied that the applicant would face a real risk of significant harm on her return to India. The AAT affirmed the decision not to grant the visa.

Read the full decision on AustLII

 

[1] Section 36(2) of the Migration Act 1958.

[2] Section 36(2)(a) and section 5H for the meaning of a refugee under the Migration Act 1958.

[3] Section 36(2)(aa) and section 36(2A) for the meaning of significant harm under the Migration Act 1958.