Protection Visa – Strict Threshold

Strict Threshold for a Protection Visa

 

Protection Visa

We have often encountered inquiries where people deliberate on applying for protection visas to prolong their stay in Australia. In response to these inquires, we always urge that this option should never be considered lightly as there is a real need to establish a well-founded fear of being persecuted should you be returned to your home country. An application without a reasonable argument may amount to a fraudulent claim for which every migration agent and lawyer must be very careful. Recent decisions of the Administrative Appeals Tribunal reinforces the strict threshold requirements, including the statutory definitions for Protection Visas. 

1604609 (Refugee) [2019] AATA 1472

Arranged marriage – Whether it constituted sufficient grounds for a protection visa

Facts: The applicant is a single woman from India. All her family lives in India, including her brother. She completed her Bachelor’s Degree in India. She had then worked full time from January 1999 until December 2002. 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 a month in early 2012.

Statutory Principle: Pursuant to section 37 of the Migration Act 1958, there are 2 limbs to the test in granting a protection visa. The first is called the ‘refugee criterion’ where an applicant should establish a ‘well-founded fear of persecution’. The second is called ‘complementary protection’ which broadly requires ‘a real risk of significant harm’ to the applicant.

Tribunal’s Considerations:

  • 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 that suggested that any member of her family had attempted to prevent her from returning to Australia.

Tribunal’s Decision: The Tribunal 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. In other words, the Tribunal held that there was no well-founded fear of persecution and therefore affirmed the original decision of the Department.

1604403 (Refugee) [2019] AATA 2489

Chinese Christians – Children born and raised in Australia

Facts: The applicants refer to all four members of a family comprised with two parents and two children. The parents arrived in Australia separately on temporary visas, met and commenced a relationship that produced two children. After their arrival, the parents remained in Australia on a series of temporary and bridging visas (or unlawfully). The parents claimed the family would be at risk of harm if they were returned to China because of their Christian beliefs, and because they were members of the ‘Local Church’. At the hearing, the applicants claimed that they had been refused Chinese passports and their household registration were cancelled in China because of adverse effects by China’s family planning regulations. The applicants applied for protection visas.

Tribunal’s Considerations:
The Tribunal reviewed the evidence along with available country information, and concluded that there was no credible evidence to support the applicants’ claims in respect of China’s family planning regulations. The Tribunal also found that applicants had not practiced their religion for many years and the country information indicated that household registration would be unlikely to be withheld or passports denied.

Tribunal’s Decision: The Tribunal was not satisfied that any of the applicants were persons in respect of whom Australia has protection obligations and affirmed the decision of the Department of Home Affairs for all four applicants. An application for Ministerial intervention was unsuccessful.