The Federal Circuit and Family Court of Australia has granted the review application for a Protection Visa by an Indian woman, considering the fear of honour killing. The Administrative Appeals Tribunal (AAT) had initially denied the woman’s visa application, citing the fact that she had been residing in Australia while her family in India had not encountered any harm.
The Tribunal made a decision regarding a protection visa application based on claims of abuse, beatings, threats, and sexual assault by the applicant’s ex-husband and ex-partner. While the Tribunal acknowledged the evidence surrounding the applicant’s marriage, divorce, and the assault by her ex-partner, it ultimately concluded that she did not face a real chance of persecution in the future from either party or their associates, such as the Khap Panchayat (village council) in India.
The Tribunal considered the passage of time since the applicant’s last contact with her ex-husband, her multiple returns to India, and the unlikelihood of the Khap Panchayat forcing her back into the marriage. Additionally, it found the risk of harm to her son to be remote. The Tribunal also noted the applicant’s delay in applying for a protection visa.
Regarding the claims of harm from the ex-partner, the Tribunal accepted the factual basis of the applicant’s allegations, including the relationship and subsequent assault, as well as the ex-partner’s conviction and imprisonment.
However, it also found that the applicant had not been in contact with him since 2011, would not be in a relationship with him upon her return to India, and that he now has his own family and does not reside in her home village.
Based on these findings, the Tribunal concluded there was no real chance of serious harm from the ex-partner. It considered the lack of harm inflicted on the applicant’s mother and son by him or his family in recent years as supporting evidence.
However, the Federal Circuit and Family Court of Australia agreed to the woman’s argument that the AAT did not adequately address her claims of honour killing or consider relevant country information highlighting the prevalence of honour killings in the region where her family resided, and the involvement of the Khap Panchayats (village councils). The applicant contended that without taking this information into account, the AAT could not accurately assess the risk of harm she faced.
The applicant also asserted that the AAT erred in accepting that the existence of laws in India for the protection of women meant she was not at risk. She argued that the AAT should have considered the implementation and effectiveness of these laws, pointing to country information that identified inadequacies and ineffectiveness.
After evaluating the arguments, the court ruled that the AAT had not adequately considered the applicant’s claims of potential harm from the community and the Khap Panchayat, despite substantial country information on honour killings.
The court agreed with the applicant’s argument that the AAT should have considered the effectiveness of laws in India for women’s protection, especially given the applicant’s extended absence from the country. The court found that the passage of time made the effectiveness of these laws crucial to the decision.
The court ordered the matter to be remitted to the AAT for reconsideration by another member.
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