Case Study - Arranged Marriage - Protection Visa
Updated: Feb 4
1604609 (Refugee)  AATA 1472
The Administrative Appeals Tribunal (the Tribunal) recently handed down the decision on 8 April 2019 on the issue - whether arranged marriage could constitute sufficient grounds for grant of a protection visa.
Summary: 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.
Facts: The applicant is a single woman from India. All her family live in India, including her brother. She completed Bachelor Degrees before leaving India. From January 1999 until December 2002 she worked full time in India. The applicant first arrived in Australia on a student visa in June 2006. She returned to India for about 3 weeks in mid-2009 and for about about a month in early 2012
Statutory Principle: Pursuant to section 37 of the Migration Act 1958, there are two (2) limbs to the test in granting a protection visa. The first is called the ‘refugee criterion’ and broadly requires an applicant to have a ‘well-founded fear of persecution’. The second is called ‘complementary protection’ and broadly requires that there is ‘a real risk of significant harm’ to the applicant.
Issue: Whether an argument for arranged marriage visa could satisfy both limbs of the statutory test and providing a ground for grant of a protection visa.
Decision: The Member was not satisfied that the Applicant faced a real chance of suffering serious harm amounting to persecution for any of the reasons in the Refugees Convention now or in the reasonably foreseeable future. Therefore, the Member was not satisfied that she has a well-founded fear of persecution.
It was noted that arranged marriages were common in India and that in some cases women were coerced or faced extreme pressure to marry someone chosen by their family. However, as pointed out in the DFAT advice, the situation for women varied depending on a range of factors including education, socio-economic and caste status and their family.
The applicant was a highly-educated woman who has lived independently in Australia. While she might have faced some pressure to marry prior to her first arrival in Australia and during her visits in 2009 and 2012, there was no suggestion that this involved physical abuse or serious or significant harm of any kind. Her decision to return to India in 2009 and 2012 suggested that she was not fearful of serious harm from her family members remaining in India or anyone else at that time because she wished to remain single.
While the Member accepted that the applicant might continue to face some pressure from family members to marry, the member was not satisfied that there is a real chance she would be forced to marry against her will or that she would face physical harm or serious or significant harm of any kind from members of her family or anyone else for choosing to remain single.
While the Member accepted that it might be more common and socially acceptable for single women to reside with members of their family members in India and cultural norms might mean that single women who had lived alone faced some low level discrimination, the Member was not in possession of any evidence which suggested that educated women who were able to support themselves were unable to live independently in India or that single women who had chosen to live independent of their families faced a real chance of suffering serious or significant harm from family members or anyone else in India.
While it might be that members of her family were not happy with her decision to come to Australia alone, she had returned to India twice and there was no suggestion that she had been rejected or abused by family members during those visits because she had chosen to live independently in a foreign country. Nor was there any evidence which suggested that any member of her family had attempted to prevent her from returning to Australia.