1713140 (Refugee)

1713140 (Refugee) [2022] AATA 4543 (12 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713140
COUNTRY OF REFERENCE:                   India
MEMBER:Rachel Da Costa
DATE:12 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 September 2022 at 4:09pm
CATCHWORDS
REFUGEE – protection visa – India – religion – Muslim – Hindu nationalism – verbal and physical harassment – business rivals with political connection – internal relocation – Hyderabad – discrimination in employment – Aadhaar card – eligibility for new passport – proof of citizenship – exceptional circumstance – Australian citizen child – serious, ongoing and irreversible harm and continuing hardship – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 June 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of India, applied for the visas on 17 June 2016. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
The first applicant (the ‘applicant’) is a [age]-year-old man from India. The [second applicant] is his wife. The other three applicants are their children. The second to fifth applicants are included as members of the applicant’s family unit and have no claims of their own.
In his application for a protection visa, the applicant provided the following information. He was born in [year] in Karimnagar town, Andhra Pradesh state, India. He speaks, reads and writes English and speaks Urdu and Telugu. He is a Sunni Muslim. He married in March 2004. In India, he has his father, mother, [number] brothers and [number] sisters. He has [number] brothers living in [Country 1] and one brother in [Country 2]. He is in regular contact with his parents in India. In India, he always lived in [street name], Karimnagar, Andhra Pradesh. In India, he completed High School and part of a [degree] at [University 1] in Telangana. In India, from 1999 to 2008, he ran his own [business] in Karimngar.
He most recently arrived in Australia [in] February 2013, using his Republic of India passport issued [in] 2007. He was a dependant on his wife’s visa. He travelled back to India from Australia [between] August 2009 [and] October 2009, [and] January 2013 [to] February 2013, to visit family.
He was refused a visa to [Country 3] in 2007. He was refused a visa in Australia on 13 February 2014, after a Regional Sponsored Migration Scheme (subclass 187) visa employer nomination was withdrawn. In Australia, he suffered a workplace injury on 22 October 2012.
Evidence before the Department
Protection visa application
In his protection visa application form, the applicant makes the following claims:
·     The applicant left India because it is becoming increasingly unsafe for religious minorities due to Hindu nationalism;
·     He was threatened by Hindus while undertaking his employment activities. He had a [business]. Other Hindus in the same industry would threaten him, to physically hit him;
·     They would come into his office in groups of three to four and push him around;
·     They didn’t want to see his business prosper and thought they would threaten him because he is a Muslim. He suspected they had weapons;
·     He did not seek help because he thought it would make the situation worse and he thought the police would side with the Hindus;
·     It is becoming increasingly unsafe for religious minorities, including Indian Muslims and the applicant and his family don’t feel safe;
·     The applicant and his family believe they will face significant harm if they return and they will face persecution on the basis of their religion. He fears attacks on him and his children;
·     The applicant fears he will be discriminated against in areas of employment as he has been in the past;
·     His children will face a difficult time in school based on their religion;
·     It will be difficult for his wife to undertake daily activities;
·     He cannot relocate in India because there has been an increase in violence against religious minorities in all areas of India;
·     The authorities will not protect him because they are mostly sympathetic to the perpetrators and they are corrupt.
In a cover letter attached to the applicants’ protection visa application forms, the applicant’s representative at the time reiterates the applicant’s claims and refers to country information in support of his claims about communal violence between Hindus and Muslims in India.
The interview
On 13 June 2017, the applicant attended a Departmental interview with a delegate of the Minister to discuss his protection visa application. In that interview, the applicant provided additional information about his claims and made a new claim as follows:
·     His cousin, who had a similar business, was murdered in 2001. He did not mention this in his protection visa application form because he did not know what information he needed to provide.
·     The applicant came to Australia in 2008 because business rivals were demanding money from him and these demands turned into physical threats and they threatened to kill him.
·     The people harassing him started taking him to the outskirt areas of his town and beating him up.
·     He closed his business in 2007 and the family came to Australia in 2008.
·     They returned to India in 2009 for a visit to attend a friend’s wedding.
·     When he returned to India both times, he found the people were still after him.
·     His parents have general worries in India but for the applicant, the problems he was experiencing with his harassers were personal.
·     The applicant waited three years to apply for a protection visa after his last arrival in Australia because he and his family wanted to stay in Australia on the basis of skills and study, and applying for protection was a last resort.
The applicant submitted photocopies of a number of black and white photographs that he said were of his dead cousin.
The delegate’s decision
On 15 June 2017, the delegate found that religious tensions have risen in India in recent years. The delegate accepted the applicant had experienced discrimination and harassment from business competitors in India up to the time he closed his business in 2007. The delegate did not accept that the applicant’s claim about his cousin being killed or the photographs he submitted as evidence of this. The delegate did not accept the applicant’s claims that his alleged persecutors pursued him when he returned to India in 2008 and 2013. The delegate found that the evidence indicated religious tensions had not adversely affected the applicant’s family or that they are at direct risk of persecution because of their religion. The delegate found it would be practicable and reasonable for the applicant to relocate within India to avoid any perceived risk of harm. Therefore, the delegate found the applicant is not a person in respect of whom Australia has protection obligations, and nor are the other members of his family unit.
Evidence before the Tribunal
The review application
On 21 June 2017, the applicants lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal.
Documents submitted to the Tribunal
On 11 December 2019, the applicant wrote to the Tribunal explaining that he and his family were moving from Sydney to [City 1], NSW because his wife had been offered a job at [Employer 1] in [City 1]. He attached a copy of his wife’s Offer of Employment from [Employer 1] dated 14 November 2019.
On 19 November 2021, the applicant provided the Tribunal with a copy of the Australian citizenship certificate of his daughter, the fifth applicant, dated [in] October 2021.
The fifth applicant
As referred to in paragraph 14, the applicant has provided evidence to the Tribunal, which it accepts, that the fifth applicant is now an Australian citizen. As the criteria for the grant of a protection visa according to s 36(2) includes that the applicant for the visa is “a non-citizen in Australia” the Tribunal finds that the fifth applicant cannot meet the criteria for the grant of the visa as she is an Australian citizen and not a non-citizen. The Tribunal discussed this with the applicant in the hearing and he said he understood.
Accordingly, the Tribunal’s consideration and findings below relate only to the first to fourth applicants, and in assessing their claims, references to ‘the applicants’ apply to the first to fourth applicants only.
Pre-hearing submissions
On 15 June 2022, the applicant submitted pre-hearing submissions to the Tribunal. In those submissions, the applicant provides links to a very large number of articles and videos from varied sources including online news sites, Youtube and Facebook relating to religious violence in India, particularly violence by Hindus against Muslims, which he claims is getting worse. He states that Muslims are targeted legally and illegally through laws and policies all over India and there is no hope for safety, peace or justice for Muslims.
In his submissions, the applicant also responds to a number of the delegate’s findings. He explains that he didn’t mention his cousin in his protection visa application form because he was focussing on himself at that time. He explains that on his visits to India in 2009 and 2013, he was only there for a few weeks and he thought things would have calmed down because he was no longer operating his business. He said that his persecutors only became aware of his visits towards the end, and during his visit in 2013 he sensed it would not be safe for him to return again because he was still a target. He refutes the delegate’s finding that relocation would be possible for him and says that there is no safe place for relocation.
The applicant also gives a number of other reasons why he cannot return to India:
·     he and his family do not have identity documents like an Aadhar card;
·     their passports have expired and they cannot renew them because they would have to declare in the application form that they had not applied for asylum in any country;
·     if they produce expired passports at the airport in India as identity documents they will be interrogated and this could be the end of them;
·     they cannot prove citizenship under the new CAA and NRC laws in India.
On 29 July 2022, the applicant provided documents to the Tribunal, including a Title Search dated 3 June 2022, about land he has purchased in [Town 1], NSW, which he says he proposes to develop with housing in an effort to provide income for his family and contribute to the community.
Post-hearing submissions
On 5 August 2022, the applicant provided the Tribunal with copies of letters and a report from his former psychiatrist, [Dr A], who was treating the applicant in 2015 following his workplace injury in October 2012.
The report dated 7 January 2015, from [Dr A] to the applicant’s General Practitioner, notes that since his injury the applicant has been in constant pain. [Dr A] diagnoses the applicant as having an adjustment disorder with depression which has become chronic due to ongoing stresses and pain. He states that the applicant has been prescribed medication for depression and would benefit from counselling and referral to a pain management clinic. This report is reattached to a note from [Dr A] to the Department dated 16 July 2015.
The hearing
The applicant appeared before the Tribunal on 6 August 2022, to give evidence and present arguments. The Tribunal also received oral evidence from the [applicant’s wife].
The hearing was conducted by video using the Microsoft Teams platform, with the agreement of the applicants. The Tribunal considered it was reasonable to hold the hearing by video given the applicants live in regional New South Wales, around 400km from Sydney, and it was not practicable for them to travel to Sydney to attend the hearing in person due to family and work commitments. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not conducted by video.
The applicant and his wife confirmed at the start of the Tribunal hearing that [the second applicant] does not have claims of her own and she wanted to give evidence in support of her husband. The Tribunal explained that as a consequence, it would be preferable if [the second applicant] was not present in the same room as the applicant while he was giving evidence. The applicant and [the second applicant] were both keen for her to remain with the applicant to support him. The Tribunal explained to them that given [the second applicant] would therefore have the opportunity to hear the applicant’s evidence and any concerns the Tribunal might have about it, this could result in the Tribunal giving little or no weight to her evidence. They both said they understood but still wanted [the second applicant] to remain in the room as a support. The Tribunal agreed to this.
The applicant’s children did not attend the hearing and the applicant confirmed in the Tribunal hearing that they have no claims of their own.
An interpreter in the Urdu and English languages was available in the hearing, however he was not required. The applicant and his wife both speak fluent English and the hearing was conducted entirely in English. The Tribunal is satisfied that the applicant and his wife were able to participate in the hearing in a meaningful way.
The applicants’ travel and migration history
Based on information on the Department and Tribunal files and information provided by the applicant in the Tribunal hearing, the applicants’ travel and migration history are as follows:
·     5 May 2008: second applicant granted a Student visa (subclass 572) offshore
·     [July 2008]: first to fourth applicants arrived in Australia as dependants of the second applicant
·     [August 2009]: first to fourth applicants travelled to India for a family visit and to attend a wedding
·     [October 2009]: first to fourth applicants returned to Australia
·     [date]: fifth applicant born in Australia
·     5 January 2012: Temporary Graduate (subclass 485) visa granted to second applicant, with other applicants as dependants
·     [November 2012]: second to fifth applicants travelled to India for a family visit
·     [January 2013]: applicant travelled to India
·     [February 2013]: applicants returned to Australia
·     21 May 2013: applicants applied for Regional Sponsored Migration Scheme (subclass 187) visas, with the second applicant seeking the visa
·     5 July 2013: Temporary Graduate (subclass 485) visa ceased
·     13 February 2014: nomination for Regional Sponsored Migration Scheme (subclass 187) visa withdrawn; applicants applied to the Migration Review Tribunal for review of that decision
·     [January 2015]: MRT decision affirmed decision not to grant the visas
·     2015: application for Ministerial intervention unsuccessful
·     17 June 2016: application for Protection visa lodged
·     [October] 2021: fifth applicant granted Australian citizenship
Nationality
The applicants claim to be citizens of India and provided to the Department a copy of their Republic of India passports. The delegate was satisfied that the applicants were using their own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicants are citizens of India. The Tribunal finds India is the applicants’ receiving country for the purpose of assessing their claims for protection.
The delegate was satisfied that the second to fifth applicants are members of the family unit of the applicant. Based on the delegate’s finding, and the evidence presented to the Tribunal by the applicant, the Tribunal is satisfied that the second applicant is the applicant’s wife and the third to fifth applicants are his children.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicant gave evidence in the Tribunal hearing that he completed his protection visa application form with the assistance of the lawyer who was representing him at the time. He confirmed that all the information it contains is true and correct, but there were a couple of things he didn’t mention in his original application. These are discussed below.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in India, his migration history, the problems he experienced in India and why he fears returning to India. Overall, the Tribunal found the applicant to be a credible witness in terms of his evidence about what happened to him in India. While he provided more detail to the Tribunal than he did in his protection visa application form and in the interview with the delegate, the Tribunal considers that his evidence about events in India was broadly consistent. However, the Tribunal does have concerns about some aspects of his evidence, particularly about why he says he fears returning to India, and does not unreservedly accept all his claims, as explained below.
The Tribunal also found the applicant’s wife to be an honest witness, although like the applicant, it does not necessarily accept all her evidence.
Events in India
Based on the applicant’s oral evidence to the Tribunal about events in India, the Tribunal is prepared to accept that the applicant had a [business] in Karimnagar[1] which was based in the Saturday market. [Details of business redacted]. It was a successful business. The applicant started his business in 1999 and began to experience some problems around six to eight months later. A group of three or four Hindu men started coming to his office demanding money and saying as a Muslim he needed to pay them because he was in their country. They would come every few weeks. These people were also involved in the [same industry] in the same area and were connected with Hindu politics through the BJP[2]. Slowly, things started to get worse and they would push the applicant, or grab the neck of his shirt or threaten to hit him. The applicant told these people to stop and that he didn’t want to compromise and pay them, but sometimes he paid them money if he had some and sometimes they took money from his office. He said he asked them to stop, but they wouldn’t and so he put up with the situation because he wanted to live peacefully and he had to live in the community. He doesn’t approve of their behaviour. He didn’t go to the police because they support these people who have political power and that would create another problem for him. The applicant said that sometimes, these people would grab him from his office and force him to get on their motorbikes and they would drive to the outskirts of town and slap him and say humiliating things to him. He couldn’t protest because even if he did, nobody wants to help or get involved in situations like this. His family thought it was just business clashes and he didn’t tell them all the details because he didn’t want to involve them. The applicant was never seriously injured, but he was humiliated and abused. These people never threatened his family and his parents have never had any particular problems living in Karimnagar.
[1] Karimnagar is a city in the southern Indian state of Telangana. Until 2 June 2014, Karimnagar was in the state of Andhra Pradesh. The applicant refers to it being in Andhra Pradesh. (accessed 1 September 2022)
[2] The Bharatiya Janata Party is the party of India’s Prime Minister, Narendra Modi. One of its platforms is Hindu nationalism. See Department of Foreign and Affairs Country Information Report India 10 December 2020, 2.6.
In mid-2007, the applicant decided to close his business and he looked for an agent to help send him and his family overseas. After he closed his business, these people continued to follow him at times from his home and keep an eye on him before he left India. They continued to demand money, but he said he didn’t have any. They kept harassing him because the problem had become personal over so many years. He was scared by the threats and didn’t know if they had weapons. He tried different agents to help them travel but it took a while to get his wife’s visa and that is why they didn’t leave sooner.
The applicant’s wife gave evidence that things slowly got worse and eventually the applicant could not handle the situation any longer and so they decided to leave.
On the trip back to India in 2009, the applicant and his family stayed in Karimnagar with his parents, which is where they all used to live before coming to Australia. A couple of times, a person connected with the people who used to come to the applicant’s office and harm him, followed the applicant. He recognised this person. This was in the final week before they returned to Australia. Nothing else happened.
On the 2013 trip back to India, they also stayed with the applicant’s parents. On that trip, towards the end, some people followed the applicant when he was doing some shopping. On three occasions, they made a threatening gesture to the applicant by drawing their finger across their throat like cutting with a knife. This made the applicant very scared and since then he has been scared and too afraid to think about returning to India. The applicant became emotional while recounting this event to the Tribunal.
The applicant gave his evidence about these events in a way which the Tribunal found to be natural and fluent, and he maintained his version of events even when pressed by the Tribunal, which suggested he was being truthful and speaking from personal experience. Despite having reservations about some aspects of the applicant’s evidence, which the Tribunal put to the applicant, overall, the Tribunal finds he has been consistent and truthful in his recounting of events and is prepared to give him the benefit of the doubt and accept that the events in India happened as he described.
Accordingly, the Tribunal accepts that while in India, from around 1999 to mid-2008, the applicant was subjected to increasing verbal and physical harassment by a group of Hindu men who were business rivals of the applicant and who had political connections to the BJP. The Tribunal accepts that these men, or people who worked for them, extorted the applicant and humiliated him and physically harassed him and although the applicant wanted to stand up to them, he felt that he could not because it would put him in danger and he wanted to try to live peacefully and he thought the authorities would not help him. The Tribunal accepts that when the applicant returned to India in 2009 and 2013, people connected to these businessmen became aware of his presence and intimidated him again towards the end of his trips. The Tribunal accepts that near the end of the applicant’s trip in 2013, threatening gestures were made to the applicant which he understood as meaning there was a potential threat to his life. The Tribunal finds that the applicant’s family, including his parents who still live in Karimnagar, have never been threatened or experienced problems with these people, or more generally.
The applicant’s cousin
The applicant told the delegate in the interview that his cousin was murdered in April 2001 and provided photographs which he said were of his cousin. He gave evidence to the Tribunal that his cousin had [a] business and was having trouble with people and he was murdered on the outskirts of the same town where the applicant lived. The Tribunal asked the applicant whether he had any proof of who murdered his cousin. The applicant said he did not, but it was the same people who harassed the applicant. The Tribunal asked him how he knew this and he said they always do bad things in those places and that is why other people don’t want to get involved.
The Tribunal put to the applicant that if he thought his cousin was murdered by the same people who were threatening him, then it might expect he would have taken steps much sooner to get away. The applicant responded that he didn’t have many options and when things got worse they had to move. He said sometimes people get killed, sometimes they escape and some keep going. He cannot go back and take the risk.
The Tribunal put to the applicant that it cannot identify the person in the photos he provided to the delegate, or when and where the photos were taken, and therefore might give them no weight. The applicant responded that if he goes back he will be seriously harmed. The Tribunal has considered this response but does not accept it. The Tribunal cannot verify the identity of the person in the photographs or the circumstances surrounding his death, or when and where the photographs were taken, and therefore gives them no weight in assessing the applicant’s claims.
The Tribunal is prepared to accept that the applicant had a cousin who was murdered in 2001, but based on the lack of probative evidence, the Tribunal does not accept that the applicant’s cousin was murdered by the same people who were harassing or threatening the applicant, or by people connected to them.
The applicant’s physical health
As referred to above, on 22 October 2012, the applicant suffered a workplace injury. According to his evidence, he sustained injuries primarily to his neck, shoulder and back. As he explained to the Tribunal and in his pre-hearing submissions, he has received a lump sum compensation payment and continues to receive monthly income protection insurance payments from his superannuation which are currently in the order of $1633 per month. He confirmed to the Tribunal that he would continue to receive these payments if he returned to India. The Tribunal accepts this.
The applicant explained that he is constantly on pain medication for his injuries and he also has physiotherapy and has to do particular exercises. During the Tribunal hearing he required several breaks so he could stand up and move around to relieve his discomfort.
The Tribunal does not consider that the applicant’s physical health problems impacted on his ability to participate in the hearing in a meaningful way, or affected the nature of the evidence he gave in the Tribunal hearing.
The applicant’s mental health
In the Tribunal hearing, the applicant explained that after the workplace injury he experienced psychological problems due to what happened. He said that back then he was stressed and this affected his memory, including at the time he made his protection visa application. He said this was part of the reason he didn’t include more information, such as about his cousin and the threatening gestures at the end of his 2013 trip because his lawyer just told him to say whatever he could remember at the time. He gave evidence that he was seeing a psychiatrist up until about 2018. He said that while he still feels stressed, he has not had further treatment for his mental health since that time. He confirmed that neither he nor his family have any other health issues.
As mentioned in paragraphs 21 and 22 above, after the Tribunal hearing, the applicant submitted letters and a report from his psychiatrist from 2015.
During the hearing, the applicant became emotional at times when talking about what happened to him in India and why he fears returning there.
The Tribunal accepts the applicant has seen a psychiatrist in the past due to his accident and has been on medication for depression, but finds that he is no longer receiving treatment for his mental health. The Tribunal accepts that the applicant continues to suffer from stress, at least in part due to the fact that he is in constant pain or discomfort due to his injuries. The Tribunal does not consider that the applicant’s mental health situation prevented him from participating in the hearing in a meaningful way. The Tribunal also does not consider that the applicant’s mental health situation affected the nature of the evidence he gave to the Tribunal. In the circumstances, the Tribunal is prepared to accept the applicant’s explanation for why he did not include in his protection visa application form some of the details he later told the delegate and the Tribunal, such as about his cousin’s death and what happened at the end of his trip back to India in 2013, and does not consider that this reflects adversely on his overall credibility.
Do the applicants meet the refugee criterion?
In his protection visa application form and covering letter, interview with the delegate, his pre-hearing submissions and in the Tribunal hearing the applicant says he cannot return to India for the following reasons:
·     He might be harmed or killed by the people who harassed and threatened him in the past;
·     As Muslims, they will face persecution on the basis of their religion due to the rise of Hindu nationalism;
·     The applicant will be discriminated against in employment;
·     His children will face difficulty in school due to their religion;
·     It will be difficult for his wife to undertake daily activities;
·     He and his family do not have identity documents like an Aadhar card;
·     Their passports have expired and they cannot renew them because they would have to declare in the application form that they had not applied for asylum in any country;
·     If they produce expired passports at the airport in India as identity documents they will be interrogated and this could be the end of them;
·     They cannot prove citizenship under the new Citizenship (Amendment) Act 2019 (CAA) and National Register of Citizens (NRC) laws in India.
The Tribunal discussed each of these reasons with the applicant in the hearing and deals with them below.
The Tribunal has considered whether the applicant might be harmed or killed by the people who harassed and threatened him in the past. As set out above, the Tribunal accepts that when he was living in Karimnagar and running his business from around 1999 to mid-2008, the applicant was harassed and threatened by some Hindu business owners who had political connections, and people connected to them. The Tribunal also accepts that the applicant was intimidated and threatened by these people when he returned to India for visits in 2009 and 2013. In the Tribunal hearing, the applicant was asked whether he knew if these people who threatened him were still in Karimnagar. He said he did not know. The Tribunal asked the applicant where he would live if he returned to India. He said he was not sure and could not think about it. The Tribunal finds that if the applicant returned to India, he would return to live in Karimnagar where he lived his whole life prior to coming to Australia, and where still has family, including his parents. The Tribunal is prepared to accept that these people who threatened the applicant in the past are likely to still be in Karimnagar and would become aware of the applicant’s presence if he returned there. Based on the Tribunal’s findings about the harassment and threats the applicant experienced from these people in the past, the Tribunal is prepared to accept that if the applicant returned to Karimnagar in the foreseeable future, these people would resume their abusive behaviour towards him because they would consider him to be a vulnerable target again like he was in the past, and the applicant’s safety would be at risk.
The Tribunal finds that the essential or significant reason that the applicant was harassed and threatened by these people in the past was his Muslim religion and that this is the essential or significant reason he fears persecution if he returns.[3] The Tribunal is prepared to accept that if the applicant returns to Karimnagar in the foreseeable future, there is a real chance he would be persecuted by these same people for reason of his Muslim religion[4] and that the persecution would involve serious harm and systematic and discriminatory conduct.[5] The Tribunal finds that the serious harm would include significant physical harassment or ill-treatment of him.[6]
[3] Section 5J(1)(a); s 5J(4)(a)
[4] Section 5J(1)(b)
[5] Section 5J(4)(b) and (c)
[6] Section 5J(4)b)
The Tribunal has therefore considered whether the real chance of persecution relates to all areas of India[7] and whether the applicants could relocate to another place in India to avoid serious harm.
[7] Section 5J(1)(c)
As discussed with the applicant in the hearing, the DFAT Report indicates that Indian citizens have the constitutional right to move freely throughout the country and have the right to reside where they choose. In practice, internal migration tends to be within, rather than between, states. The latest figures, which are from 2011, indicate that there are around 450 million internal migrants.[8] The DFAT Report indicates that there are factors that may limit internal relocation, such as language and culture, lack of education, lack of documents, lack of informal social networks, limited access to financial resources and factors such as caste and gender.[9] The DFAT Report indicates that Islam is the second-largest religion in India with around 14% or 172 million people identifying as Muslim. There are states with significant Muslim populations, such as Uttar Pradesh, West Bengal, Bihar, Maharashtra, Assam and Kerala.[10]
[8] DFAT Report 5.30
[9] DFAT Report 5.31 – 5.33
[10] DFAT Report 3.40
The Tribunal put to the applicant that as a person with an income (due to his injury and albeit modest), language ability, experience establishing himself in another country, an educated family and experience running a business, he and his family could establish themselves in another city or state in India. The Tribunal put to the applicant that it might consider the city of Hyderabad would be an option for him. Country information indicates that Hyderabad is a large, cosmopolitan city in the south of India with over 6 million people in its greater area and it is in the same region as where the applicant lived before. Hyderabad is estimated to have a Muslim population of around 43%.[11] The Tribunal put to the applicant that the language and culture there would be familiar and he would be able to blend in without too much difficulty. The applicant responded that people from Karimnagar often go to Hyderabad and the trouble-makers from before can track him and find him, and there are lots of trouble-makers there. He also said that no matter where he goes, new people will give him trouble. He said the whole country has a problem and it is not safe for Muslims. The Tribunal has considered the applicant’s responses but does not accept them for a number of reasons.
[11] (accessed 1 August 2022); (accessed 31 August 2022)
First, based on the evidence, the Tribunal considers that the problems the applicant experienced in the past in India were localised and opportunistic. The Tribunal does not consider it plausible that even if the people in Karimnagar who harmed the applicant in the past found out that he and his family had returned to live in another city in India, these people would bother attempting to locate the applicant and resume their harassment of him in another city or that they would incite new people to harass and threaten him in the new location. This is particularly the case given the applicant has spent barely any time in India since 2008 and was last there for a few weeks in 2013. The Tribunal considers this scenario proposed by the applicant to be far-fetched and does not accept it. Secondly, the applicant did not provide any evidence to support his assertion that there are trouble-makers everywhere in India, including in Hyderabad, who would give him trouble. As set out above, the Tribunal accepts what happened to the applicant in Karimnagar in the past and acknowledges that he has a subjective fear of being harmed if he returns to India in the future, but it considers his claim that he would be targeted again in the future by unknown people for speculative reasons to be too vague, and does not accept it.

Thirdly, the Tribunal has considered the applicant’s claim that as a Muslim, the whole country is not safe for him and he would have problems wherever he goes in India. In considering this, the Tribunal discussed with the applicant how he practises his religion. The applicant gave evidence in the Tribunal hearing that he and his family are Muslim. He gave evidence that when living in India, he went to the mosque and did his prayers every day. Once or twice a year he helped with programs at the mosque where speeches were made. He was never involved in protests or politics in India. The Tribunal asked the applicant if he would continue to practice his religion if he returned to India. He said that he would, in the same way as before. The applicant gave evidence that in Australia he goes to the community mosque. He and his wife take the children there during school holidays. His children study Islam online and he and his wife also teach them at home. The Tribunal accepts the applicant’s evidence about his and his family’s practice of Islam and finds that they have always practised it in a peaceful and quiet way. The Tribunal finds that if the applicants returned to India, they would continue to practice their religion as they have done in the past, and the applicant would not be involved in protests or politics. As described above, the applicant gave evidence that his family, including his parents, have not experienced particular problems in India as Muslims. The Tribunal accepts this.
In the Tribunal hearing, the situation for Muslims in India and country information about this was also discussed with the applicant in detail. As discussed, the DFAT Report indicates that Muslims constitute around 14.2% of the population in India. While Muslims are a minority, they are the second largest religious group in India and there are around 172 million Muslims in India.[12] The Indian constitution provides for freedom of religion.[13] Muslim members of parliament are common.[14] Country information including the DFAT Report indicates that there has been violence between religious communities in India for a long time and it has affected Muslims in particular.[15] Country information also indicates that there has been an increase in targeted attacks against religious minorities in recent years and some observers claim that the current BJP government has created a permissive environment for Hindu nationalist groups to engage in this type of behaviour.[16] The BJP, as the national government, has instituted policies that violate religious freedoms in India in relation to Muslims, for example in relation to the rights of Muslim immigrants from nearby countries to obtain Indian citizenship.[17] This led to violent protests in Delhi in 2020.[18] While Covid-19 exacerbated anti-Muslim sentiment, Prime Minister Modi and other senior government leaders emphasised the importance of community harmony and religious groups supporting each other during the Covid-19 pandemic.[19] The DFAT Report indicates that the security situation in India varies a great deal over time and place due to its size and diversity. The causes of unrest are also very varied but can include religious tensions.[20] Recent clashes in different parts of India in April 2022 coincided with a Hindu festival and there are reports of fights between Hindu nationalists and Muslims in various states, including in the state of Andhra Pradesh where the applicant is from, but the reported incident there was not near Karimnagar, injuries were minor and the police intervened.[21] Reports from this time did not mention Hyderabad. As discussed with the applicant in the hearing, a recent report from the Pew Research Centre found that in cities in southern and eastern India, Hindu nationalist groups have less presence, the BJP does not have such a strong presence or vote and people are generally more secure in their relations with other religious groups in these areas which means that Hindu nationalist sentiment is lower.[22] This is the region of India where Karimnagar and Hyderabad are located.
[12] DFAT Report 3.19
[13] DFAT Report 3.21
[14] DFAT Report 3.41
[15] DFAT Report 3.20, 3.26
[16] DFAT Report 3.33
[17] See the CAA discussed below.
[18] DFAT Report 3.53
[19] DFAT Report 3.44
[20] DFAT Report 2.64
[21] (accessed 5 September 2022); (accessed 5 September 2022); (accessed 5 September 2022)
[22] (accessed 5 September 2022); (accessed 5 September 2022); (accessed 5 September 2022).
The DFAT Report assesses that Muslims in India face a low risk of official discrimination. DFAT assesses that many Muslims live day to day with low levels of societal discrimination and violence and that this has been going on for many years. The DFAT Report states that Hindu nationalist politics has increased communal tensions in parts of India in recent years and so there are higher levels of fear in the Muslim community.[23] The Tribunal put to the applicant that on the basis of this country information, it might find that when the population of India, at over 1.21 billion people,[24] and the size of the Muslim population, at over 172 million people, is taken into account, incidents are still relatively isolated and the overall numbers small. The Tribunal also put to the applicant that based on the country information, such as the Pew Research Centre report, it might not accept the applicant’s claim that the security situation for Muslims is the same all over India. The Tribunal also put to the applicant that based on his profile, he and his family would not face a real chance of serious harm as Muslims if they returned to India in the reasonably foreseeable future. The applicant responded that the media is on the BJP’s side and doesn’t support the Muslims, the police are not on the side of Muslims and if he goes there he will be harmed or killed. The Tribunal has considered the applicant’s response but does not accept it. Based on the country information referred to above and the Tribunal’s finding that if he returned to India, the applicant would continue to practice his religion quietly in an ordinary way and he would not be involved in protests or politics, and the fact that his other family members who live in India have not faced harm, the Tribunal finds that the applicant would not face a real chance of serious harm as a Muslim if he returned to an area other than Karimnagar, and neither would his family. It follows that the Tribunal finds that the real chance of persecution does not relate to all areas of India[25] and it is localised to the area of Karimnagar.
[23] DFAT Report 3.53
[24] DFAT Report 2.8
[25] Section 5J(1)(c)
It follows from the discussion above that the Tribunal finds the applicants could relocate to another place in India where they would not face a real chance of serious harm. While the Tribunal is not required to consider the reasonableness of internal relocation by the applicants, the Tribunal has considered whether the applicant and his family would be able to relocate to a place where there is safe human habitation and to which safe access is lawfully possible.[26] As discussed with the applicant in the hearing and referred to in paragraph 65 above, the Tribunal finds that the applicant has a modest guaranteed income, language ability, experience establishing himself in another country, experience running a successful business and he has an educated family. The Tribunal acknowledges that establishing a life in a new city, including finding work and accommodation would not necessarily be easy, however, the Tribunal finds that in a city such as Hyderabad there would be safe human habitation for the applicant and his family, and safe access would be lawfully possible for them as Indian citizens. Therefore, the Tribunal finds that the applicant and his family could relocate to a city such as Hyderabad and they would not face a real chance of serious harm.
[26] FCS17 v Minister for Home Affairs [2020] FCAFC 68
In making its findings, the Tribunal has taken into account the extensive country information provided by the applicant about the situation for religious minorities, and particularly Muslims, in India. As discussed with the applicant in the hearing, the Tribunal cannot have regard to some of the country information he provided because the links he provided did not work and some of the material is not translated into English. With some of the information provided, it is also not possible to verify its source or authenticity and so the Tribunal does not accept it. Further, some of the information provided is either very general, or very specific, and the applicant has not explained how it is relevant to his personal circumstances. The Tribunal asked the applicant in the hearing about the relevance of the country information he provided and he explained, as he did in his written submissions, that the reason he provided it was to show that there are ongoing problems in India between Muslims and Hindus which are getting worse and this is one of the reasons, as a Muslim, he is afraid to return. In general terms, the Tribunal accepts there are tensions between some Hindus and Muslims in India as this is consistent with country information such as the DFAT Report. The Tribunal has made its findings about this above and explained its reasons for those findings, and the country information provided by the applicant does not change those findings.
The Tribunal has considered below the applicant’s remaining claims as to why he fears harm if he returns to India.
The Tribunal has considered the applicant’s claim that he would be discriminated against in employment. As discussed with the applicant in the Tribunal hearing, the DFAT Report assesses that Muslims face a low risk of official discrimination and live with low levels of day-to-day societal discrimination. DFAT assesses that Muslims are often employed or self-employed in small businesses. They are under-represented in some areas of employment and administration although representation in the civil service has improved in recent years.[27] In the Tribunal hearing, the applicant was asked what work he would do if he went back to India and he said he did not know but he could not do the same as before. The Tribunal put to the applicant that his history of employment and business suggests that given he has run his own business in the past, that is what he would do again if he returned to India. The applicant responded that he cannot get a government job and if he starts a business he has an injury and people will do to him the same thing as they did before. The Tribunal does not accept the applicant’s response. Based on the country information and the applicant’s past work history, the Tribunal find that if he returned to India he would start his own business or work in another small business. If the applicant experienced some discrimination in finding a job or establishing a business, the Tribunal does not accept that this would amount to serious harm. For the reasons set out above, the Tribunal does not accept that simply because the applicant suffered harm in the past when running his business in Karimnagar, there is a real chance this would happen again in the future in a different location. Accordingly, the Tribunal finds that if the applicant returned to India in the reasonably foreseeable future, he would not face a real chance of serious harm arising from these circumstances.
[27] DFAT Report 3.42
The Tribunal has considered the applicant’s claim that his children will face a difficult time in school because of their religion. When asked about this in the Tribunal hearing, the applicant said that his children came here when they were young, they have lived their whole lives here and they don’t know how to live in India. The applicant’s wife gave evidence that she thinks there is a lot of discrimination against Muslim students recently in some states in India and some schools have banned the hijab. She is worried that if their daughter is enrolled in school she will be discriminated against. The Tribunal has considered the evidence of the applicant’s wife, but as it relates to her daughter, who is not eligible for a protection visa, the Tribunal does not consider this evidence to be relevant and does not accept it. In terms of the applicant’s comments, while the Tribunal accepts that India would be an unfamiliar environment for the applicant’s children, it does not accept that feeling unfamiliar in a place amounts to serious harm. Further, as discussed with the applicant in the hearing, the DFAT Report does not indicate that Muslim children are discriminated against in the education system in India. Accordingly, the Tribunal finds that the applicants would not face a real chance of serious harm arising from these circumstances if they returned to India in the reasonably foreseeable future.
The Tribunal has considered the applicant’s claim that his wife will find it difficult to undertake daily activities. When asked to explain this in the hearing, the applicant claimed that there is discrimination against working women in India and women who wear the hijab. When asked whether his wife would work if the family returned to India, the applicant said he was not sure because wages are low for teachers and it might be difficult because of the hijab. The applicant’s wife gave evidence that it is not safe for Muslim women to undertake employment and if they wear the hijab there is a chance they will be targeted and harmed when out and about. The Tribunal has considered this evidence and notes that the applicant has not provided any evidence to support this particular claim. The Tribunal notes that the applicant and his wife have not claimed that his wife experienced problems in the past in India as a Muslim woman who wears a hijab. A Pew Research Centre report indicates that in India, including in the south, a percentage of Muslim, Hindu and Christian women all wear head coverings.[28] The DFAT Report indicates that longstanding traditional values and gender roles can restrict the participation of women in the workforce and community and that only one quarter of women engage actively in the labour market.[29] This analysis is not restricted to Muslim women. The Tribunal is prepared to accept that given she has been working as an [Occupation 1] in Australia, the applicant’s wife may try to find work in the [same] profession if the family returns to India. Based on the country information referred to above, the Tribunal finds that she may have some difficulty finding a role, but the Tribunal does not accept that this would amount to serious harm. In terms of wearing a hijab and suffering harm when out and about, based on the Tribunal’s findings above about the situation for Muslims in India and women wearing head coverings, the Tribunal does not accept that as a Muslim woman wearing a hijab, the applicant’s wife faces a real chance of serious harm. The Tribunal notes that the DFAT Report does not mention this as a particular risk for Muslim or other women. Accordingly, the Tribunal finds that the applicant’s wife would not face a real chance of serious harm arising from these circumstances if the applicants returned to India in the foreseeable future.
[28] (accessed 5 September 2022)
[29] DFAT Report 3.114, 3.133
The Tribunal has considered the applicant’s claim that he and his family do not have identity documents like the Aadhaar card. As discussed with the applicant in the Tribunal hearing, the DFAT Report explains that the Aadhaar card is not compulsory, although it makes things much easier for people if they have one.[30] The DFAT Report explains that as non-resident Indians, the applicants could apply for Aadhaar cards on arrival in India. It also states that the card is easy to obtain, even for undocumented poorer citizens.[31] The Tribunal put to the applicant that on this basis, it might consider that their lack of Aadhaar cards would not be a problem for them because they could obtain one. The applicant responded that the authorities will say they are not from here and they will do what they want to do. The Tribunal does not accept this response as it is not supported by the country information. Accordingly, the Tribunal finds that the applicants would not face a real chance of serious harm arising from these circumstances if they returned to India in the reasonably foreseeable future.
[30] DFAT Report 5.51
[31] DFAT Report 5.54
The Tribunal has also considered the applicant’s claim that their passports have expired. The applicant claims that to get new passports, they would be required to declare in the application form that they have not applied for asylum in any country. He has also claimed that if they returned to India on other travel documents that this would get them in trouble with the airport authorities because it would indicate that they had sought protection in another country. The Tribunal accepts that the current form required to apply for a new Indian passport, according to the online information from the Indian High Commission in Australia, asks for a declaration about having sought asylum. As discussed with the applicant in the hearing, in 2018, the Indian High Court found that claiming asylum abroad is not a valid ground for denying someone a passport. In that case, the applicants had applied for a new passports after they returned to India.[32] The Tribunal could not locate public information about the practical consequences of the authorities asking an applicant for such a declaration.
[32] (accessed 5 September 2022); (accessed 5 September 2022)
In any event, the DFAT Report indicates that if an applicant’s protection visa application is not successful and they have to return to India, they can travel on an emergency certificate[33] rather than having to apply for a new passport. Information on the website of the Indian High Commission says that emergency certificates are issued to Indian nationals who do not hold valid Indian passports and need to travel back to India. This includes people detained by Australian authorities who are to be sent back to India (which would presumably include failed asylum seekers).[34] There is also country information which indicates that if a returnee were questioned at the airport about the circumstances of their return on temporary travel documents, they would not be detained, arrested or harmed.[35] The DFAT Report also says that DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities.[36] The Tribunal put to the applicant that it might not accept that their lack of current passports is a reason they can’t return to India, or that if they returned to India on other travel documents this would get them into trouble with the airport authorities because it would indicate that they had sought protection in another country. The applicant responded that when he gets to the airport in India, the authorities will catch him and torture him. They will investigate and make big trouble and won’t let him out of the airport. He said that while they say one thing on the website, in reality the rules are different. The Tribunal has considered the applicant’s response but does not accept it as it is not supported by the country information. Accordingly, the Tribunal finds that if the applicants are required to return to India in the reasonably foreseeable future and they have not obtained new Indian passports, they could travel on emergency certificates and they would not face a real chance of serious harm arising from these circumstances.
[33] DFAT Report 5.59
[34] (accessed 5 September 2022)
[35] India: Treatment by authorities of Indian citizens who are deported back to India, who return without a valid passport and/or who are suspected of having requested refugee status while abroad, Research Directorate, Immigration and Refugee Board of Canada, Ottawa, 9 May 2016, IND105497.E (accessed 29 July 2022)
[36] DFAT Report 5.39

The Tribunal has considered the applicant’s claim that there is no way for them to prove citizenship under the CAA and NRC. In relation to the NRC, as discussed with the applicant in the hearing, the DFAT Report indicates this was updated in 2018 and relates to the north-eastern state of Assam. The purpose was to identify so-called illegal citizens who were allegedly migrants from Bangladesh. The DFAT Report does not indicate that this initiative has been rolled out more broadly or there is an intention to do so.[37] The Tribunal put to the applicant that it might not accept this situation was relevant to him and his family at all. The applicant said people have been detained and they are trying to make it difficult for Muslims. The Tribunal does not accept this response as it does not explain why a law in the state of Assam about migrants from Bangladesh is relevant to the applicants. Accordingly, the Tribunal finds that the applicants would not face a real chance of serious harm arising from these circumstances if they returned to India in the reasonably foreseeable future.
[37] DFAT Report 2.74, 2.75
In relation to the CAA, as discussed with the applicant in the hearing, the DFAT Report indicates that this is legislation that makes religion a criterion for citizenship. It relates to migrants from other countries applying for Indian citizenship and it gives some non-Muslims a quicker pathway to citizenship. It is not relevant to people who are already Indian citizens. The DFAT Report indicates that this legislation has been controversial and some states have apparently announced they will not implement it.[38] The Tribunal put to the applicant that he is an Indian citizen and has an Indian passport and there was no evidence before it to suggest that his citizenship would be in doubt, or that of his family.[39] The applicant responded that the law says one thing and the authorities do something else. The Tribunal does not accept this response as it is not supported by the country information. There is no probative evidence before the Tribunal to suggest that the Indian citizenship of the applicant and his family (other than his daughter, who is an Australian citizen) is in doubt or in jeopardy and the Tribunal does not accept that this is the case. Accordingly, the Tribunal finds that the applicants would not face a real chance of serious harm arising from these circumstances if they returned to India in the reasonably foreseeable future.
[38] DFAT Report 2.76
[39] DFAT Report 2.76
Although the applicant did not raise this claim himself, the Tribunal has also considered whether the applicant would face a real chance of serious harm due to his medical condition. The Tribunal asked the applicant whether he had any concerns about access to medical treatment or medicine if he returned to India. He said he did not. The Tribunal accepts this. Accordingly, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to India in the reasonably foreseeable future.
Therefore, for the reasons set out above, the Tribunal finds that if the applicant returns to Karimnagar in the reasonably foreseeable future, he would face a real chance of serious harm from the people who harmed him in the past, for reason of his religion.[40] However, for the reasons set out above, the Tribunal has also found that the real chance of persecution is localised and does not relate to all areas of India[41] and the applicants could relocate to another place in India, such as Hyderabad, where they would not face a real chance of serious harm for any reason.
[40] Section 5J(1)(a) and (b)
[41] Section 5J(1)(c)
Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution as they do not meet the requirement in s 5J(1)(c). As the Tribunal is not satisfied the applicants have a well-founded fear of persecution, it is not satisfied that the applicants meet the definition of refugee in s 5H(1). As the applicants do not meet the definition in s 5H(1), the Tribunal is not satisfied they are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Do the applicants meet the complementary protection criterion?
As the Tribunal has found that the applicants do not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether they meet the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
The complementary protection criterion requires that the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm: s 36(2)(aa).
As set out above, the Tribunal has found that if the applicant returned to Karimnagar in the foreseeable future, he would face a real chance of serious harm from the people who harmed him in Karimnagar in the past. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[42] the Tribunal finds that this element of the complementary protection criterion is satisfied in respect of this claim.
[42] MIAC v SZQRB [2013] FCAFC 33
The next question for the Tribunal is whether these circumstances amount to ‘significant harm’ to the applicant. ‘Significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. Based on the Tribunal’s findings above, the Tribunal is satisfied that if he returns to Karimnagar, the applicant will be subjected to degrading treatment or punishment, which amounts to ‘significant harm’.
Section 36(2B)(a) states that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm. Therefore, the Tribunal must consider whether it would be reasonable for the applicant to relocate to another place in India.
For the reasons set out above, the Tribunal has found that the real chance, and therefore the real risk, of harm to the applicant is localised to the area of Karimnagar. In the Tribunal hearing, the Tribunal discussed with the applicant whether he could relocate to another city, such as Hyderabad. As referred to above, country information indicates that Hyderabad is a large, cosmopolitan city in the south of India with over 6 million people in its greater area. Hyderabad is estimated to have a Muslim population of around 43%.[43] The applicant stated that he cannot relocate because wherever he goes the people who made problems for him in the past would eventually find him and new trouble-makers will make problems for him. For the reasons set out in paragraph 66 above, the Tribunal does accept this response.
[43] (accessed 1 August 2022); (accessed 31 August 2022)
The Tribunal put to the applicant that he has an ongoing income (albeit modest, from his injury), language ability, experience establishing himself in a new country, experience running a successful business and a well-educated family. Hyderabad is in the same region of India as Karimnagar and has a large Muslim population and so language and culture would be familiar to him. The applicant reiterated his concern about trouble-makers finding him. As discussed above, the Tribunal does not accept this response. In considering whether relocation to a city such as Hyderabad would be reasonable for the applicant and his family in their particular circumstances, the Tribunal acknowledges that re-establishing a life a new city would not be easy, however the Tribunal does not accept that the challenges the applicant and his family would face, such as finding housing, schools and employment, given their background and resources would make relocation unreasonable in the sense that they would face a real risk of significant harm. Further, it is possible to travel by air from Sydney to Hyderabad without passing through or near Karimnagar, which means the applicant would not have to return to that place on his journey.[44]
[44] (accessed 1 September 2022)
The Tribunal has considered the applicant’s other claims about the difficulties he and his family would face if they returned to India. As set out in paragraph 59, these are that as Muslims, they will face persecution on the basis of their religion due to the rise of Hindu nationalism; the applicant will be discriminated against in employment; his children will face difficulty in school due to their religion; it will be difficult for his wife to undertake daily activities; he and his family do not have identity documents like an Aadhar card; their passports have expired and they cannot renew them because they would have to declare in the application form that they had not applied for asylum in any country; if they produce expired passports at the airport in India as identity documents they will be interrogated and this could be the end of them; and they cannot prove citizenship under the new Citizenship (Amendment) Act 2019 (CAA) and National Register of Citizens (NRC) laws in India.
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[45] for the same reasons as those set out above, the Tribunal finds that the applicants do not face a real risk of significant harm in respect of those remaining claims. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm in these circumstances. Therefore, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) for these reasons.
[45] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
Request for referral to the Minister
At the conclusion of the hearing, the applicant requested that the Tribunal refer his case to the Department for consideration by the Minister pursuant to s 417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if this Minister thinks it is in the public interest to do so. The applicant requests that in light of his personal circumstances and that of his family, the Minister intervene to permit the applicants to remain in Australia.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J)’ and has decided to refer the matter for consideration for the following reasons.
The Tribunal notes the exceptional circumstance:
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
The Tribunal notes that the applicant’s youngest child is an [age]-year-old Australian citizen and considers that she would suffer serious, ongoing and irreversible harm and continuing hardship if her family were broken up and her parents and siblings had to return to India.
The Tribunal also notes that the second applicant has provided a letter of support from her employer, [Employer 1], in [City 1], NSW, dated 8 June 2022. This letter explains that the second applicant has completed her [diploma] and is working towards her [degree] to enhance her qualifications as an [Occupation 1]. The centre has experienced difficulty filling qualified [Occupation 1] roles. The letter explains that the second applicant is a valued and vital member of their staff and if she left, it would have a critical impact on their daily [operations]. According to the letter, it is the only centre in [the area] that provides this service and without the second applicant, they would have to cancel [services] for up to eight families per week who rely on the service.
The Tribunal also notes that the applicant has provided evidence to the Tribunal, which it accepts, that he has purchased land in [Town 1], NSW, for investment and development purposes so that he can generate an income for his family and contribute to the community, despite his injury which limits his employment options. He proposes to build multiple dwellings on the land to help provide housing in the community.

100. The Tribunal notes that the applicants have lived in Australia since 2008. The Tribunal found the applicant and his wife to speak fluent English. They live in regional NSW. The applicant is developing his own business, investing in the local area and supporting his family. The applicant’s wife is a highly valued, qualified, staff member in [a business]. According to information contained in the applicant’s pre-hearing submissions, which the Tribunal accepts, his eldest son is in Year [level] and works part-time at [Employer 2]. His middle son is in Year [level] and his daughter is in Year [level]. Based on the evidence before it, the Tribunal considers that the applicants are well-integrated into the Australian community.
decision
101. The Tribunal affirms the decision not to grant the applicants protection visas.
Rachel Da Costa
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

(accessed 31 August 2022)

[2022] AATA 4543

12 September 2022

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