1901878 (Refugee)

1901878 (Refugee) [2024] AATA 3329 (14 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mohammed Ullah (MARN: 0321608)
CASE NUMBER:  1901878
COUNTRY OF REFERENCE:                   India
MEMBER:Rachelle Johnston
DATE:14 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 August 2024 at 9:26am
CATCHWORDS
REFUGEE – protection visa – India – religion – Muslim – employment discrimination, public abuse and attacks, government’s pro-Hindu/anti-minority laws, policies and statements and extremist hate-speech – country information – incidents not serious or significant harm – member of family unit wife – Australian-born child not an applicant – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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 dependants.
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 Home Affairs on 18 January 2019 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 19 August 2017. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
On 19 August 2017, the first named applicant (the applicant) lodged an application for a protection visa. His wife, the second-named applicant, was included in the application as a member of the same family unit. She did not put forward her own claims for protection before the Department and sought to rely on the applicant’s claims.
The applicant, in his protection visa application, provided the following:
·     He was born in [Year] in [Telangana], India.
·     Between [Birth] and July 2005 he resided in [Andhra] Pradesh.
·     In July 2005 he commenced working in [Country 1] in [occupation task]. He worked there until April 2017.
·     From April 2017 until July 2017 he lived in [Telangana].
·     He married [in] 2012.
·     He speaks, reads, and writes English, Hindi, and Telugu. He speaks and reads Urdu.
·     He is a Sunni Muslim.
·     He completed his Bachelor of [Subject 1] in [Year] in Telangana and completed Junior College, High School, and Primary School between [Year] and [Year] in India.
In a statement attached to his protection visa application the applicant makes the following claims:
·     He is an Indian Muslim and was born and brought up in India. [In] July 2005 he moved to [Country 1] to work and live there. He spent almost twelve years there. Apart from working and living in [Country 1] he enjoyed his spiritual life too.
·     He became a practising Muslim and came back to India [in] April 2017 when his contract for work ended.
·     After arriving in his native birthplace of Warangal, India, he started looking for a job in Hyderabad in the fields of [occupation tasks].
·     He went through a few interviews. In those interviews he came to understand that those positions which he was looking for were fully women oriented and he was ignored for those positions he applied for. He kept trying to get a job in India in his field of expertise.
·     He was abused twice and horrified on two different instances when he was travelling looking for a job. On 20 April 2017 in a general compartment of a train in Hyderabad a group of six to seven non-Muslim youths who looked to be about twenty to twenty-five years of age and of the Hindu religious faith started to insult him in the name of his religion without any reason.
·     One of the guys indicated his finger to him and said these guys eat beef and when asked to stop consuming beef, they refuse and still consume it and grow a beard, we should trim it.
·     One of them started yelling straight at his face “you Muslims are intruders” not the real Indians whose forefathers are not of “Indian origin but Mongols and Arabs”. The same guy tried to grab hold on his beard, and they had a scuffle. The guy threatened to shave off his beard and warned him to never use public transport in the future with his beard and religious attire.
·     Most people on the train also supported the perpetrators in the name of nationalism and Hindu religious sentiment saying cows are our mother and we should punish him. After lots of words and the scuffle he took off from the train at the very next stop without going to his destination.
·     He started to look for the Railway Police guard to inform them about the incident, but the goons started chasing him and he left the station in a horrified scene as they watched him leave the station and they went back to catch their train. From there he hired a car and came back to his home city Warangal. He took the car instead of public transport as he was so tensed and scared that he felt it’s the safe way to go back as he found a car driver who is a Muslim, and he explained the scenario about what happened in the train.
·     After coming back home, he narrated the whole incident to his family and they were so terrified because so far he, his family, relatives and friends were just watching these incidents in TV channels and reading it in newspapers in India against Muslims, but when this happened with him they were in utter shock.
·     His friends and relatives suggested he complain to the state police and when he went to the police station to complain, the police officer who was in charge was reluctant to file his complaint. People were saying that its common the people who are doing this are powerful and they belong to the ruling party, so he can’t do anything and be thankful to God that he escaped and is alive.
·     The second incident happened to him in his own city two kilometres away from his home. He was going on his motorbike with his father in Muslim religious attire for Friday prayer and suddenly from behind a scooter overtook him from the wrong side and abused him in the local Telugu language saying you thief radical Muslim, can’t you go from the other side. Then he went close to him and told him to mind his language and speaking and he started saying what can you do to me, you know who I am?
·     The man pointed out his scooter’s rear side where it was written VHP Warangal. His father told him to leave that idiot as they were getting late for prayer, and they left the place. They are trying to instigate fear in Muslims’ minds now in India.
·     Since 2014 the new government, which is ruled by the Indian BJP party, is filled with communal hatred, anti-secularism and Hindutva ideology who want to impose Hindu law and culture on a nation whose ethos is unity and diversity.
·     The ruling BJP’s main aim is to terrorise the minorities of the nation, suppress them and to win the hearts of the majority who are Hindus to stay in power. They are not playing democratic politics but communal politics, which is hurting not only millions of Muslim minorities of India but also the seculars who have been living and enjoying their life since long before the BJP’s government formation in 2014.
·     After the above two incidents, he started feeling very insecure in his life in his own country where he was born and lived for [Number] years and has been the cause of its GDP development by working overseas for twelve years staying away from family, friends, and relatives.
·     Upon return to his nation, what he has found is a pack of bullying, intimidation, and vilifications, surprises like a tag of intruder, anti-national and at last warnings and death threats which made him insecure in his own land.
·     He is lucky that he was not killed by the radical Hindu boys that attacked him on the train. These sorts of Indian radical Hindu mobs attack Indian Muslims by the tacit approval from current BJP lead Modi Government.
·     On 27 June a group of radical Hindus of Haryana have killed a young Muslim boy who is only 16 years of age and seriously injured four other Muslim boys on board of a Mathura bound train. Before the Hindu goons attacked the Muslim, they told them they were “anti-nationals” and “beef eaters” and threw their skull cap on the floor, caught their beards and taunted them with terms such as “mullah”.
·     Attacking Muslims in India increased dramatically after Narendra Modi became prime minister of India and formed the BJP Government. Muslims have been detained and killed in the name of cow trading and consuming beef by Hindu mobs frequently, but the BJP government is not taking any action against those Hindu attackers to save Indian Muslims.
·     When radical Hindus attacked the Muslims on the Haryana train, the surrounding passengers encouraged the attackers to kill the Muslims.
·     He was really in fear for his life in India while he was being attacked by the radical young Hindus. He decided to escape from India to save his life. He applied for an Australian tourist visa on 29 May 2017 for himself and his wife. On 28 June 2017 he and his wife got an Australian tourist visa and escaped from India [in] July 2017.
·     He has a real fear of his life in India by the radical Hindu goons who have been killing young Muslims eating beef, and who have a beard on their face.
·     If he goes back to India, he will be physically harmed or even killed by radical Hindus as he is a practising Muslim and has a beard on his face. He is seeking protection from the Australian federal government according to the United Nation Refugee Convention 1951 and Optional Protocol of 1967 to save his life from BHP lead Hindu terrorists in his country India.
The applicant provided the following supporting documents to the Department:
·     Copies of his former and current passport.
·     Copies of the current passport and National ID card for the second-named applicant.
·     Police Clearance Certificate dated [January] 2018 from the Consulate General of India.
· Marriage Certificate between the applicant and the second-named applicant dated [2012].
The applicant provided the Department with the following news articles and reports in support of his protection visa application:
·     ‘Telangana will be 29^th state, Hyderabad to be common capital for 10 years’, Times of India, 30 July 2013.
·     ‘Constitutional and Legal Challenges Faced by Religious Minorities in India’, US Commission on International Religious Freedom, February 2017.
·     ‘Hindu seer banished from Hyderabad over anti-Muslim comments’, Hindustan Times, 11 July 2018.
·     ‘India’s Police has a diversity problem too few Muslims’, Asia Times, 30 May 2018.
·     ‘We Have No Orders to Save You: State Participation and Complicity in Communal Violence in Gujarat’, Human Rights Watch, 2002.
·     ‘Are beards obligatory for devout Muslim men’, BBC News, 27 June 2020.
·     ‘Unani medicine is emerging as a popular choice for students’, Times of India, 11 November 2013.
·     ‘Muslims hold key to 40% assembly seats in Telangana’, Hindustan Times, 1 November 2018.
·     ‘No temporary beards in Islam Fired cop rejects SC’s advice to shave for re-joining force’, Hindustan Times, 14 April 2017.
·     Unemployment Rate in India, CMIE, 16 January 2019.
·     ‘Telangana at 9^th place in jobs availability’, The Hans India, 10 November 2017.
·     ‘Muslims on India train assaulted ‘because they ate beef’’, BBC News, 24 June 2017.
·     ‘Unani Medicine’, Encyclopedia Britannica.
·     ‘Three Muslim Clerics Beaten on train in UP, were asked why wear Rumaal’, NDTV, 23 November 2017.
·     ‘Three Muslim clerics assaulted on train in Uttar Pradesh’, Hindustan Times, 23 November 2017.
·     ‘Muslim Family attacked on Train’, The Hindu, 14 July 2017.
·     ‘Can a Muslim policeman sport a beard Supreme Court gets involved’, NDTV, 22 January 2013.
·     ‘Telangana assembly elections 2018 State stands 3^rd in youth unemployment rate, says MV Rajeev Gowda’, Times of India, 27 November 2018.
·     ‘Muslim couple attacked at Rvm railway station allege police refused to take complaint’, The News Minute, 3 April 2018.
·     Report on the Commission of Inquiry on Socioeconomic and Educational Conditions of Muslims, Government of Telangana, August 2016.
·     United Kingdom Home Office, Country Police and Information Note: India Religious Minorities, May 2018.
Interview with the delegate
The applicant attended an interview with a delegate of the Department on 20 December 2018. The second-named applicant did not attend the interview. The interview was conducted in English. The applicant’s representative attended the interview with him. In the interview, the applicant responded to questions and elaborated on his claims. The Tribunal has listened to a recording of the interview. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.
The delegate’s decision
On 18 January 2019, a delegate of the Minister refused the applicant’s protection visa application. The delegate accepted the applicant is an actively practising Muslim and identifiable as a Muslim by his name and visual appearance. They accepted he was subject to increased harassment and discrimination in day-to-day life after 2014 because of his religion and that he experienced a level of employment discrimination due to his Muslim faith and having a beard. The delegate also accepted the second-named applicant faced a level of employment discrimination due to her Muslim religion. They accepted the applicant was opportunistically targeted and subjected to name calling, vilification, intimidation, and physical harassment from imputed Hindu nationalists due to his religion on a train journey in April 2017 and that he may have faced a level of discrimination from the police but did not find the police failed to assist the applicant on the basis of his religion alone.
The delegate did not accept the applicant was targeted on his bike due to his religion. They did not accept the harm the applicants experienced in India amounted to serious harm or that the level of discrimination or harassment the applicants may face in India would amount to serious harm.
The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to India, there is a real risk that he will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations, and nor is his wife.
Evidence before the Tribunal
Review application
On 18 January 2019, the applicants applied for a review of the delegate’s decision. The applicants provided the Tribunal with a copy of the delegate’s decision.
Pre-hearing submissions
Prior to the hearing, the applicant provided the Tribunal with a written statement dated 27 May 2024. That statement included the following claims/submissions:
·     India’s Muslim communities have faced decades of discrimination, which experts say has worsened under the Hindu nationalist BJP’s government. Two hundred million Muslims live in India, making up the predominantly Hindu country’s largest minority group.
·     For decades Muslim communities have faced discrimination in employment and education and encountered barriers to achieving wealth and political power. They are disproportionately the victims of communal violence.
·     Prime Minister Nerendra Modi and the ruling BJP party have moved to further limit Muslims’ rights under the controversial citizenship law, which has the power to render millions of Muslims in India stateless.
·     Anti-Muslim sentiments have heightened under the leadership of Prime Minister Narendra Modi and the ruling BJP which has pursued a Hindu nationalist agenda since elected to power in 2014. Since Modi’s re-election in 2019 the government has pushed controversial policies that critics say explicitly ignore Muslims’ rights, restrict religious freedoms, and are intended to disenfranchise millions of Muslims. Under Modi, violence against Muslims has become more common.
·     A 2019 report by India-based nongovernmental organisation Common Cause found that half of police surveyed showed anti-Muslim bias, making them less likely to intervene to stop crimes against Muslims. Analysts have noted widespread impunity for those that attack Muslims and national courts and government bodies have sometimes overturned convictions or withdrawn cases that accused Hindus of involvement in violence against Muslims.
·     States have increasingly passed laws restricting Muslims’ religious freedoms, including anti-conversion laws and bans on wearing headscarves in school.
·     In 2022 authorities in several states bulldozed homes alleging the bulldozed building lacked proper permits, with critics saying they primarily targeted Muslims, some of whom had recently participated in protests.
·     There has been a rise in the number of incidents of cow vigilantism since the election of the BJP majority in 2014.
·     Many Muslim youth in India are still under imprisonment and suffer the humiliation of terrorist tag. Muslim youth are at the forefront of violent conflicts in India and are often being used as subjects of all kinds of allegations and false charges.
·     The U.S. Commission on International Religious Freedom has classified India as a ‘country of particular concern’.
The applicant’s 27 May 2024 submission refers to various news articles, protests, mobs, and clashes across India that are religiously and ethnically motivated and scholastic material regarding religious, racial and political issues in India. The Tribunal has considered these.
The applicant’s submission mentions the President of BSP Telangana and Dr RS Praveen Kumar, a former IPS officer, accused Chief Minister K Chanddrashekhar Rao of adopting a ‘bulldozer policy’ similar to that of the Uttar Pradesh government and alleges the government has been demolishing houses belonging to the poor Muslim community in Rekurthi in Karimnagar town.
The hearing
The applicant appeared before the Tribunal on 7 June 2024 to give evidence and present arguments. The applicant confirmed with the Tribunal at the commencement of the hearing that the second-named applicant was present in the Tribunal building with his child but that she did not intend to give evidence and that she did not have any claims of her own to progress before the Tribunal. The Tribunal explained to the applicant the second-named applicant and his child did not need to remain on site if the second-named applicant was not giving evidence and did not wish to advance any claims of her own and provided the applicant with a brief adjournment within which he could converse with the second-named applicant. After that brief adjournment the applicant confirmed the second-named applicant did not wish to give evidence.
No witnesses were called to give evidence in support of the applicant’s claims. The applicant was represented in relation to the review. The representative did not attend the Tribunal hearing.
The hearing was conducted in English. The applicant was able to answer questions without hesitation and his answers demonstrated an understanding of the questions being put to him.
The Tribunal is satisfied that the applicant had a meaningful and genuine opportunity to be heard, present their case, and participate fully in the hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.
Post-hearing submissions and evidence

At the hearing the Tribunal advised the applicant it would provide him with a period until 21 June 2024 to provide the Tribunal with any further material he wished to in support of his claims.
On 21 June 2024, the applicant provided a further submission to the Tribunal. In that in submission he made the following statements, which the Tribunal has summarised in parts:
·     Only two days into India’s six-week-long general elections, Prime Minister Narendra Modi unleashed yet another tirade against the country’s most significant religious minority: Addressing a rally in the western state of Rajasthan, Modi called India’s 200 million Muslims ‘infiltrators’. The remarks drew widespread anger. Thousands of enraged civil society members wrote to the Election Commission, seeking action against the PM for his ‘dangerous speech’, calling it a ‘direct attack’ on Indian Muslims.
·     As a member of the marginalised community, he faced such attacks of racial slander, defamation, and abuse daily, even though it was low level. Nowadays slander, beating, and abusing Muslim men and women have become part of Indian culture for the BJP leaders and government.
·     Since Modi and his Bhartiya Janata Party (BJP) came to power in 2014, all aspects of civil society have been increasingly attacked by the marginalised society and it is a matter of some concern with Modi poised to assume a third term.
·     Over his ten years at the helm, Modi has already shown that he and his BJP are capable of a brazen populist push for more significant disenfranchisement of non-Hindus and attempts to tighten their grip on power through whatever means necessary. As he rose to power a decade ago, Modi was still dogged by accusations that he did not do enough to stop a bloody program against Muslims in Gujarat. Still, his victory was praised as a story of triumph – the humble chaiwala’s son who became Prime Minister.
·     Modi has been praised by leaders internationally. What received less international attention is the fact that the BJP is an extension of Sangh Parivar, a collective of militant Hindutva organisations spearheaded by the Rashtriya Swayamsevak Sangh (RSS) — who want to see India as a Hindu Rashtra, or nation.
·     The emergence of an explicitly Hindu country would transform the Indian state into the antithesis of what is envisaged in its constitution: a pure secular India. As someone who has followed Modi’s and his BJP’s ascent closely, he knows that it would endanger tens of millions of Indians as it would mean the suspension of core institutions, principles, and instruments characterising secularism and democracy. This Hindu nationalist mentality, which has gained in popularity over the last ten years, is even more dangerous now that Modi has secured a third-term prime ministership that puts him on equal standing with the nation’s first post-independence leader, Jawaharlal Nehru.
·     He believes the danger extends well beyond anti-minority and Islamophobic rhetoric. For example, Modi and the BJP’s desire to consolidate power has also taken a massive toll on India’s humanitarian and aid sector. Since its rise to power, the BJP government has clipped the wings of thousands of aid agencies and NGOs that were often the only ones reaching out to marginalised and downtrodden communities. When the government declines to renew their five-year licences, it typically includes an unsubstantiated claim of “misuse or diversion of foreign funds.” In a nation where 60% of the population still lives on less than $3.10 a day, suspensions and restrictions of aid organisations can significantly impact tens of millions of lives. Civil society organisations have come to see the weaponisation of the FCRA as a calculated tool of suppression.
·     In February 2024, the Centre for Equity Studies offices, an advocacy organisation run by notable human rights activist Harsh Mander, were raided. The Central Bureau of Investigation, or CBI, filed a First Information Report (FIR) against Mander for FCRA violations. The CBI alleges that the organisation transferred hundreds of thousands of rupees to personal accounts or in a manner that seems to go against regulations.
·     Indian Prime Minister Narendra Modi’s ruling party and affiliated groups were behind most hate speech events against Muslims during the first half of the year, according to a US-based research group that tracks hate speech. 80 per cent of the 255 documented incidents of “hate speech gatherings targeting Muslims” occurred in Bhartiya Janata Party-ruled states and union territories.
·     Researchers wrote that India has seen an “escalating trend” of anti-Muslim speech since Modi rose to power in 2014. The report found that more than half of the documented incidents this year were orchestrated by the ruling BJP and affiliates, including the Bajrang Dal, Vishwa Hindu Parishad and Sakal Hindu Samaj. Those groups have ties to the Rashtriya Swayamsevak Sangh, or RSS, the ideological parent of the BJP.
·     The report is the first of its kind to document hate speech against Muslims after India’s crime bureau stopped collecting data on hate crimes in 2017. Hindutva Watch also reported that about 64 per cent of the events propagated anti-Muslim conspiracy theories. Inflicting violence against Muslims was a rallying call in 33 per cent of the events and 11 per cent included appeals for Hindus to boycott Muslims. The remaining gatherings featured “hate-filled and sexist speech” targeting Muslim women, according to the report. It is reported some of the purveyors of hate speech include chief ministers, legislators, and senior leaders from the ruling BJP.
·     A rising tide of discrimination against India’s ethnic and religious minorities, especially Muslims, has triggered warnings that the government is “playing with the fire of sectarian hatred”. India’s Supreme Court was forced to intervene last month after “several Hindu religious leaders” were accused of calling for a “genocide” of India’s Muslims, Al Jazeera reported. Hindu monks have also repeatedly called for “an ethnic cleansing of the kind that targeted Rohingya Muslims in Myanmar”, said The New York Times (NYT).
·     These groups of “extremists” were “once considered fringe”, said the paper, but are “increasingly taking their militant message into the mainstream, stirring up communal hate in a push to reshape India’s constitutionally protected secular republic into a Hindu state”. According to The Economist, Narendra Modi’s “government is ignoring and sometimes even encouraging” the “concerted and wide-ranging offensive” against minorities. NDTV reported in January that BJP politicians had been responsible for 297 of a total of 348 incidents of hate speech by “high-ranking political functionaries” since 2014, when Modi’s party first came to power. The frequency of such outbursts of so-called “VIP hate” had jumped by 160% over the past three-and-a-half months, the analysis by the New Delhi-based news channel found.
·     The recent spike may be down to the approach of elections in five states this month, with BJP nationalists “turning up the heat”, The Economist said. Modi’s party is “anxious to retain its hold on Uttar Pradesh, India’s most populous state, in advance of the next general election in 2024”, and BJP campaign material has included “blunt sectarian content, such as images of Muslims as terrorists, or of opposition politicians dressed in ‘Muslim’ garb”. Analysts and activists have warned that Hindu extremists are being “enabled, even normalised, by political leaders and law enforcement officials”, said the NYT. The ruling regime is accused of offering “tacit endorsements by not directly addressing such divisive issues”.
·     Modi “and his top leaders remained silent” after footage of a recent call to arms by monks in the holy city of Haridwar went viral. The Supreme Court launched an investigation. A recently retired Supreme Court judge has commented the higher echelons of the ruling party are almost endorsing hate speech.
·     Hindu nationalists that “incite violence openly boast that politicians and police will not touch them”, The Economist said. Modi’s BJP “has pushed government prosecutors to pursue cases against Muslims accused of sectarian troublemaking, but has rarely shown any zeal with Hindus”, according to the paper. This alleged state “endorsement”, as former judge Nariman described it, is “stoking communal tensions in a country where small triggers have incited mass-death tragedies”, said the NYT. The increasing hate speech “resonates with increasingly emboldened vigilante groups”, triggering attacks in which mobs have “beaten people accused of disrespecting cows”, “dragged couples out of trains, cafes and homes”, and “barged into religious gatherings where they suspect people are being converted”.
·     Article 1 of the 1951 Convention defines a refugee as someone who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [their] nationality and is unable or, owing to such fear, is unwilling to avail [themself] of the protection of that country; or who, not having a nationality and being outside the country of [their] former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
·     Indian Muslims face bullying and discrimination from the state of India led by Modi, and they are unable to move freely in most of the states with their identity. The BJP Government marked Indian Muslims as invaders and that they had no right to live in India. They also cannot perform their religious works and duties freely due to fear of attack by Hindus. Muslims in India are unable to get their national identity card due to a lack of birth certificates.
·     He has a real fear for his life in India, and he is unable to return to his country due to the increasing hatred and violence from the BJP Government towards Muslims in India.
The applicant also provided the Tribunal with a copy of his son’s birth certificate [in] June 2024, confirming the birth of his son in Australia in [Year].
CRITERIA FOR A PROTECTION VISA
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Nationality
The applicant claims to be a citizen of India and presented his Indian passport to the Department at his protection visa interview. The delegate was satisfied that the applicant is using his own identity and that he is a citizen of India. He also presented his passport to the Tribunal at his hearing on 7 June 2024.
The second-named applicant claims to be a citizen of India and provided the Department with her Indian passport and a photograph of her National ID Card. The delegate was satisfied that the second-named applicant is using her own identity and that she is a citizen of India.
In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicants are citizens of India and India is their receiving country for the purposes of assessing their claims for protection.
The Tribunal is satisfied that the applicant and second-named applicant married [in] 2012 and that they remain married. The Tribunal is satisfied that the second-named applicant is a member of the same family unit of the applicant as defined in s 5(1) of the Act.
Analysis, reasons and findings
The Tribunal has considered the applicant’s written and oral evidence throughout the process and has found his evidence to be consistent and him to be a credible witness who has provided detail in support of his claims without apparent embellishment.
In the hearing, the applicant was asked about his protection visa application, and he confirmed the details of that form were true and correct. He did not wish to update any details or correct any information. He confirmed he was assisted to complete that form by a lawyer. The Tribunal discussed the applicant’s protection claims, what he claims occurred in India, why he fears returning to India, and his work, family, education, travel, and residential history. The Tribunal also discussed with the applicant the second-named applicant’s employment history in India, [Country 1], and Australia and her attempts to find work.
At hearing the applicant advanced largely the same claims as set out in his protection visa application and his pre-hearing submissions. He claimed although he did not have a threat from a particular person, he fears harm from members of the Hindu community who target minority groups like Muslims in India and claim they are not real Indians. He stated he fears harm on account of his Muslim religion, religious practices, and religious appearance. He also raised concerns related to employment discrimination on account of his Muslim religion and religious appearance and discussed the impact of the Citizenship Amendment Act 2019 and National Register of Citizens on him. These claims are each addressed below.
Background information
The applicant provided the Tribunal with a detailed outline of his personal circumstances in India and [Country 1] and his employment and residential history.
The Tribunal accepts the applicant was born in [Telangana], India, and that his mother, [sisters], and a brother remain living in Warangal. The Tribunal accepts he has [other sisters] living in a different village in India and a further sister living in [Country 1]. The Tribunal accepts the applicant lived with his mother and father in Warangal before coming to Australia, along with the second-named applicant, and that his father has since passed away.
The Tribunal accepts the applicant lived in [Country 1] between 2005 and 2017 on a work visa, working in [occupation tasks], and that he had to leave [Country 1] once or twice every two years for visa purposes. The Tribunal accepts he returned to live with his family in Warangal in April 2017 at the end of his work contract.
The Tribunal accepts the applicant graduated from University in India with a Bachelor of [Subject 1] and that he obtained some additional certifications in [Country 1]. The Tribunal accepts the applicant worked before 2005 in Hyderabad for a few months as [an occupation 1] before commencing his work in [Country 1].
The Tribunal accepts before coming to Australia, the applicant tried to look for work in India and after a few months he found one job as [an occupation 2] in Hyderabad, but before commencing that role he travelled to Australia.
The Tribunal accepts whilst in Australia the applicant has worked in [work sectors and tasks].
In discussing the second-named applicant’s work history, the applicant explained, and the Tribunal accepts, she has not worked in India, [Country 1], or Australia. When asked if she had tried to look for work in 2017 in India the applicant stated she tried a couple of times.
Claims related to religious beliefs, religious practices, and religious appearance
The applicant has provided the Department and the Tribunal with a number of articles, reports, and written submissions in support of his claim if he returns to India he will be harmed on account of his Sunni Muslim religion, religious practices, and his religious appearance, including his clothing and beard. The Tribunal has considered this information. Central to the applicant’s claimed harm on return to India, as discussed with him at hearing and as detailed in his submissions of 27 May 2024 and 21 June 2024, is that the situation for minority groups like Muslims in India has been getting progressively worse since the BJP came into power, the system is not in the favour of religious minorities and is not just, and he is at risk of harm in India from Hindu nationalists.
The Tribunal explored with the applicant at hearing what his religious practices are and what his experiences of harm were in India. The Tribunal accepts the applicant is a Sunni Muslim and that his religious practices involve prayer five times a day, and Friday and weekend attendance at the mosque. When asked if he was able to express his religious practices in India before coming to Australia he stated yes.
In discussing why he fears returning to India and what will happen to him if he returns there, the applicant outlined he doesn’t have a threat from a particular person as he never feared harm from a similar person and instead he faced harm twice from two different people.
The Tribunal discussed the past harm the applicant experienced in India and accepts the applicant was harmed once in April 2017 on the train in Hyderabad when a group of six or seven boys bullied and harassed him, referring to him as a Muslim, a beef eater, and pointing out his religious clothing and beard. The Tribunal accepts he was seated on the train, the assailants came at him and tried to push him, threatened him, tried to grab his beard but he pushed them back, and that he moved towards the door and got off the train as soon as it stopped at the next station, hiring a taxi to get home.

In reflecting on that situation, the applicant explained he felt lucky he survived, but if his legs had been broken or his hand amputated, he may become disabled and that would ruin his whole life and that created stress and fear within him.
The applicant described a second incident that occurred in India in the months before he departed for Australia. The Tribunal accepts at this time the applicant was riding on his scooter with his father to Friday prayers when he had a disagreement with another person on a different scooter who tried to hit his scooter and argued with him about which side of the road he was on and why he was driving so rash. The Tribunal accepts the other scooter rider reversed his scooter backwards towards the applicant, showing him a sticker on his scooter of the Rashtriya Swayamsevak Sangh (RSS), saying he belonged to that group and to the applicant ‘you are Muslim, you are not Indian’.
Of this incident, the applicant explained he had been driving smoothly as his father was an old man and he was on the slowest road on the left side and everyone on the right was overtaking him. In these circumstances the Tribunal is prepared to accept the other scooter rider deliberately stopped the applicant and harassed him, pointing out his RSS sign, on account of the applicant’s religious dress, and not as a result of a road incident, as found by the Departmental delegate.
In discussing why the applicant believes he was targeted on these occasions, he explained once he started growing a beard and practising his Muslim religion with enthusiasm and passion he was viewed as being a Muslim, very fundamentalist, and not one among everyone else. As to his appearance, he would wear a skull cap when going for prayer, being a clear sign he is a Muslim, and explained with his beard and Urdu language it was clearly understood he was a Muslim. The Tribunal accepts the applicant was and would be identifiable in India as a Muslim owing to his physical appearance and dress and due to his name.
Both instances of harm, the applicant described, were distressing as they involved occasions where people demonstrated they had higher authority than him and could do whatever they liked, threatening him, and saying, ‘you are not a real Indian, you are from the outside’. The applicant explained they made him feel insecure, devastated, not able to do things to his ability and confidence, stressed and fearful, and that he was being put down in a country where he was born, studied, and had graduated.
Of particular difficulty, the applicant explained, is that he cannot face the person with whom he has a problem in India. Rather, he has a problem with people he doesn’t know, whom he can’t interact with, and that he can’t negotiate with as each time it’s a different person coming and bullying or harassing him. He stated he can’t say it is the whole community in India that he has a problem with, but it is the group in India claiming to be real Hindus. He expressed concern that if he returns to India, he may not get a third chance, having been lucky to get out of these two situations, and something may happen to him.
The applicant also explained his broader concern at the shifting treatment of Muslim people within the Hindu community, as detailed in his written submissions to the Tribunal. He reflected on his ability to study with Hindu friends at university, yet he had read recently about students at school on birthdays not sharing food for discriminatory religious reasons. He also spoke of his mother’s Hindu neighbours being good friends, but the potential for disagreements to occur and the system not being in her favour if things turned. The applicant conveyed visible sadness in providing his perspective on the situation in India and the Tribunal accepts the applicant finds the events he experienced in India and the rise of Hindu nationalism distressing.
The applicant explained the authorities and police are part of the systemic issue, they all get trained from the RSS, and the government doesn’t stop the radical Hindu people from doing things, so he has no security of life. He stated when he went to file his police complaint about the train incident, the police said it was nothing and there was no harm on him, and they were not ready to take his complaint. The Tribunal explored the police complaint with the applicant further, upon which he explained he was told there is not much the police could do about the people who the applicant didn’t know. He stated he thought the police should have at least taken his complaint and done a basic investigation. The applicant confirmed he did not make a complaint about the incident on his scooter.
The Tribunal queried with the applicant if it was because he didn’t know the individuals on the train that the complaint wasn’t progressed, or a different reason. In response he stated it was a different reason, and if a complaint is made about a Hindu they hardly look after you, unless it becomes a wider story, and the media gets attention on it and then the authorities come into action. The Tribunal considered the articles and submissions supplied by the applicant throughout the process. It discussed country information with the applicant at hearing that whilst there are reports of police mistreatment of members of religious minorities, the country information suggests there is no generalised risk of inaction facing all members of these groups[1]. The applicant explained there is discrimination within the police and if the case is between a majority group and a minority group, they will always favour the majority group. He provided an example of noise issues outside mosques versus at Hindu festivals.
[1] United Kingdom Home Office, Country Policy and Information Note India: Political parties and affiliation, Version 1.0, December 2023, 14-15.
Whilst the Tribunal is prepared to accept, and the country information supports, the practice of the police depends on individual police officers and can be arbitrary[2], and there have been instances of police brutality against Muslims in India[3], on the evidence before it, where the police commented on the limitations of their role where the assailants were unknown to the applicant, the Tribunal does not accept the police did not assist the applicant in his report of the train incident owing to his religious beliefs, Muslim appearance, or lack of Hindu faith.
[2] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 5.6, 48.
[3] ‘Nupur Sharma protests: The police brutality video that shocked India’, BBC, 17 June 2022.
Given the applicant’s family remain in India, the Tribunal asked him if they had experienced any harm, problems, or issues whilst he has been in Australia. He explained his brother has faced some verbal exchanges with Hindu communities in his role as a taxi driver, but it was everyday life for him to face that situation.
The Tribunal asked the applicant directly if his family had been impacted by any bulldozer policies or housing demolition, including related to the Muslim community of Rejurthi, Karimnagar town, as referred to in his submission. In response he stated they were not impacted but the situation is making everyone fearful as Muslim people are being suppressed. Given the nature of the applicant’s submissions, the Tribunal also asked him if he was a member of a political party. He explained he has never been into politics. The Tribunal accepts neither the applicant nor his family have experienced any issues related to housing demolition or the forced acquisition or bulldozing of their land and that the applicant is not a member of any political party and that he is not interested in politics. The Tribunal accepts the applicant’s family have not been harmed in India, other than his brother who has experienced verbal exchanges with members of the Hindu community.
The applicant explained, and the Tribunal accepts, if he were to return to India, he would return to Hyderabad. He stated he did not believe there was anywhere safe he could return to in India.
The Tribunal considered the articles the applicant provided in support of his claims as well as his oral evidence and written submission of 27 May 2024 and 21 June 2024. The Tribunal accepts since the election in 2014 of the BJP government, a political wing of the RSS, there has been sustained media attention on the issue of Hindu nationalism and a key aim of Hindu nationalism is to restore the pre-eminence of Hindu culture in India. DFAT report there have been high-profile attacks by Hindu nationalists against minority religious communities and some analysts have claimed that the national government has created a permissive environment for Hindu nationalist groups to intimidate members of minority religions through violence, hate speech and otherwise[4].
[4] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.19, 20.
At hearing the Tribunal discussed with the applicant that although many media sources and human rights commentators claim that anti-Muslim sentiment is rising in India amid growing polarisation, it is reported small scale incidents such as lynchings, and reports of gangs beating Muslim men for their religion or for having beef in their houses receive significant media coverage but are not common experiences for most Muslims[5]. It explained DFAT report that in practice the general day-to-day experience of Muslims is generally not blighted by official discrimination, there are no explicitly discriminatory laws against Muslims, putting aside the changes to the country’s citizenship laws (discussed further below), and there have not been large-scale demolitions of Muslim neighbourhoods in India. In addition, the Tribunal explained the country information indicates Muslims can access government services in the same way as any other Indians[6].
[5] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.33-7, 22.
[6] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.40, 22.
The Tribunal outlined DFAT assesses Muslims face a low risk of official discrimination and a low risk of societal violence. Where societal violence does occur, DFAT note there can be serious or fatal consequences, with poorer and lower-caste Muslims at greater risk of violence[7]. The Tribunal explained the country information indicates there have been politically inflammatory anti-Muslim statements made in India, although the reports suggest they were not accompanied by widespread or systemic incidents of violence[8]. Whilst there are incidents of societal discrimination against Muslims, hate speech is common, and discriminatory language is sometimes made by high profile people in public contexts, the Tribunal explained it is reported the majority of Muslims, especially those living in majority Muslim communities, do not experience significant day-to-day discrimination[9].
[7] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.41, 23.
[8] United Kingdom Home Office, Country Police and Information Note, India: Religious minorities and Scheduled Castes and Tribes, Version 4.0, April 2024, 3.3.4-3.3.5, 8.
[9] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.42, 23.
As to the recent election results in India and the situation in Telangana, the Tribunal explained the recent election results indicate the BJP and Prime Minister Modi were successful in securing a third term, although with less power than expected[10]. In Telangana, eight seats went to the BJP, eight to the Indian National Congress, and one to AIMIM[11].
[10] ‘Narendra Modi Secured a Third Term as India’s Prime Minister – But With Less Power Than Expected’, TIME, 4 June 2024.
[11] ‘Telangana Election Results 2024 Lok Sabha Highlights: BJP, Congress win 8 seats each, AIMIM secures 1’, Financial Express, 5 June 2024.
The Tribunal acknowledged the country information indicates that with the BJP in power there has been a rise in Hindu secularism, discrimination against Muslims, and a narrative of Hindu nationalism. It explained it’s concern to the applicant that although the media contains heightened discussion on this issue, the country information appears to suggest on a day-to-day basis there is not a real chance or a real risk of harm for most Muslims in India. The Tribunal outlined given the country information, what he had explained at hearing, and his specific circumstances and education, it may find he and the second-named applicant do not face a real chance of serious or significant harm on return to India in the reasonably foreseeable future, including if he returned to Hyderabad.
In response to the country information and the Tribunal’s concerns the applicant stated India is secular, democratic, there is freedom of religion, and it was good up until 2014. He explained once the BJP came into power their main agenda was to target minority groups and they use religious politics. He stated the ideology of the BJP, as seen in the last three elections, has been successful, is wide-spread, and everyone is brainwashed. He provided examples of the forced demolition of Muslim mosques for Hindu temples, stating although India is a secular nation and he’s never had any disagreements with anyone in the past, hate about minorities is spreading.
He explained he has been through two situations in his life and that he didn’t want to take a third chance in his life. He stated he may be attacked seriously and be injured throughout his life, and that he may not be killed straight away but that they can do anything. The applicant referred to lynchings and how the police won’t act as there are usually hundreds of people involved, and the situation can arise out of anything. He reflected on his son, wife, and mother who are dependent on him and his desire to live in a world with freedom. The Tribunal considered the applicant’s response and whilst it accepts that incidents such as lynchings and societal violence have occurred in India, as discussed with the applicant and outlined above, it found the applicant’s response did not address its concern as to whether he specifically faces a real chance of serious or significant harm on return to India in the reasonably foreseeable future in the context of the independent country information.
The Tribunal also raised with the applicant at hearing that it may not find conduct like the type of harm the applicant previously experienced in India, including verbal insults about his religion, verbal threats, negative comments, references to the RSS, discrimination in employment, and disagreements in friendships involving an element of religion, amounts to serious or significant harm in accordance with the Act. It explained it may find the group of youths on the train did not have any intention of seriously harming him or carrying out their threats given he was able to depart the train even though he was significantly outnumbered, and that the incident on the motorbike similarly was not directed at causing him serious or significant harm. The Tribunal outlined the instances of serious harm in s 5J(5) and the exhaustive definition of significant harm in s 36(2A).
In response the applicant stated if the police had taken his report, he would not have moved out of his country. He stated if he goes back, the system is not there to stand behind him and give him security and safety and it would be choosing life or death. He explained people will have a problem with his dress or skull cap or beard and it will trigger them, and he will be attacked or bullied and that can lead to death or serious injury. He explained he has a son now, a good life, safety and security and he believes a third situation may happen to him in India and people’s mentality is dangerous. The Tribunal considered the applicant’s response and found it to be speculative considering the available independent country information. The Tribunal did not find his response addressed its broader concerns as to whether conduct such as that which he experienced in India amounts to serious or significant harm in accordance with the Act.
Employment discrimination owing to Muslim religion, religious practices, and religious appearance
In his protection visa application the applicant explained in India, before his departure to Australia, he had a few interviews and was ignored for the positions he applied for in his field of expertise, with the positions being women orientated. In his pre-hearing submission of 27 May 2024 he claimed for decades Muslims in India have faced discrimination in employment and education and encountered barriers to achieving wealth and political power.
At hearing the applicant explained when looking for jobs in India he was told the roles were for women, although he was aware men could also be in the [occupation task] department. He believed employers didn’t like his appearance and didn’t think he could be in [occupation tasks]. In discussing how many jobs he applied for, he explained he got an opportunity for seven or eight interviews but only got one job offer. He stated he had good qualifications, experience, and language skills so he believes he failed the job interviews because of his religious appearance. When asked if he obtained feedback from his interviews he said no, and that he was told they would get back to him. He explained a few places told him they were looking for women, although he stated they would have known he was a man before the interview.
At his Departmental interview, as recorded in the delegate’s decision record the applicant provided to the Tribunal, the applicant indicated the second-named applicant was discriminated against and was not able to secure work in her field because she is a practising Muslim and wears a burqa. The applicant has provided news articles with his protection visa application pertaining to the second-named applicant’s studies in Unani medicine. In the applicant’s protection visa application it is stated the second-named applicant has not worked and was a housewife since her marriage in [2012]. In discussing the second-named applicant’s employment history at hearing, the applicant stated she tried a couple of times to find work in 2017, but otherwise she had no employment history in India, [Country 1], or Australia.
The Tribunal is prepared to accept given the applicant’s skills, qualifications, and work history and the number of interviews he attended in India that he experienced some employment discrimination because of his Muslim religion and religious appearance in India. The Tribunal does not accept the applicant was denied employment in India on account of his Muslim religion, religious appearance, or religious practices in circumstances where he returned from [Country 1] to India in April 2017 and had secured employment before his departure to Australia in July 2017. Nor does the Tribunal accept the second-named applicant was denied employment in India before her departure to Australia on account of her Muslim religion or religious appearance and dress in circumstances where the applicant explained she had no prior work history in [Country 1] or India, and where he described her attempts in 2017 to find employment as trying a couple of times to find work. The Tribunal finds the second-named applicant’s lack of work history of any kind would have been a significant factor in her difficulty finding work from her few job search attempts in 2017.
The Tribunal discussed country information with the applicant at hearing about India’s economy and employment market. It explained country information before it indicates markets had recovered in India and although the nature and quality of jobs varies, jobs are widely available. It outlined the Telangana state portal provides it is a booming place for people looking for work in fields such as IT, the public sector, innovation, pharma and life sciences, among others, and as of April 2023 it was the only major state in the country to record a labour participate rate of more than 52.43 per cent, and unemployment is on a declining trajectory[12].
[12] Telangana State portal, ‘Working in Telangana’, accessed on 5 June 2024.

The Tribunal explained country information indicates Muslims have a 4% reservation in education and government employment in Telangana[13]. It outlined DFAT assesses Muslims face a low risk of official discrimination in India and the level of societal discrimination Muslims face across India varies from low to medium depending on the majority religion in the region, with the risk higher for Dalit converts and Muslims considered to be of a low caste given their intersectional identities[14].
[13] ‘Quota for Muslims in Telangana and Andhra back in focus’, Hindustan Times, 24 April 2024.
[14] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.40-3.43, 23.
The Tribunal also discussed with the applicant that Telangana has a significant Muslim population comparative to the rest of India[15]. It acknowledged the applicants may be subject to a level of employment discrimination based on their religion and raised its concern with the applicant that it may not find this conduct would in and of itself amount to serious harm or significant harm in accordance with s 5J(4)(b) or s 36(2A). The Tribunal explained it may find a degree of employment discrimination does not result in significant economic hardship threatening subsistence, the denial of basic services threatening subsistence, the denial to earn a livelihood of any kind threatening subsistence or come within the exhaustive definition of significant harm in s 36(2A).
[15] Along with Uttar Pradesh, Bihar, Maharashtra, West Bengal, Karnataka, Kerala, Assam, and the Union territories of Lakshadweep and Jammu and Kashmir. United States Department of State, 2022 Report on International Religious Freedom: India.
In response the applicant stated he doesn’t have an issue with employment and his issue is with the mentality of the people conducting interviews, where they claim to be looking for a female after the interview but knew him to be a male from his name at application. He explained this hurts him. He stated the employment goes up and down in India and whilst he can get employment, he has identity discrimination. He explained two incidents happened to him outside his house and these things can happen any time. He queried what if a third incident happened in his home. The applicant stated it is common to attack a person’s home in India, where radicals attack for no reason, for example claiming someone is cooking beef. He stated most Muslims work outside the area as although you may secure a job, you don’t have growth in your area. The Tribunal considered the applicant’s response and whilst it accepts isolated incidents of violence against Muslims occur in India, as discussed with the applicant at hearing and outlined above[16], the Tribunal found the applicant’s overall response to its concerns to be speculative and that it did not alleviate them.
Citizenship Amendment Act 2019 and National Register of Citizens (National Register)
[16] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.28, 21.
In his 27 May 2024 submissions to the Tribunal the applicant claimed the citizenship law amendments in India have the power to render millions of Muslims in India stateless.
At hearing the applicant stated the situation in India has become worse and there is so much fear in the minority communities as the government is bringing in the Citizenship Amendment Act 2019. He raised concerns about Muslims becoming stateless.
The applicant explained he was born in [Year] and at that time there was not a focus on proper documentation and even with his passport he could not say he’s an Indian citizen. He explained in terms of the Citizenship Amendment Act 2019, the Indian government has made a checklist of applicable documents and a passport doesn’t count as proof of ID. He claimed he could prove his citizenship in India only through a Birth Certificate and his parent’s date of birth and he doesn’t have that documentation.
Discussing this in more detail with the applicant, he stated two million people in Assam are now stateless as a result of the National Register. He explained everyone will need to show they are Indian under that program and because he doesn’t have a Birth Certificate and is a Muslim he is at risk.
The Tribunal raised country information with the applicant at hearing that indicates the Citizenship Amendment Bill 2019 was passed in the upper house of parliament on 11 December 2019 and cleared the lower house two days earlier. It explained the Citizenship Amendment Act 2019 amended the 64-year-old Indian Citizenship law, which currently prohibits illegal migrants from becoming Indian citizens, defining illegal immigrants as foreigners who enter India without a valid passport or travel document, or stay beyond the permitted time[17]. It acknowledged at hearing the law provides for an expedited path to citizenship for Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians coming from Afghanistan, Bangladesh, and Pakistan who entered India before 31 December 2014, making religion a criterion for citizenship for the first time in India’s history[18].
[17] ‘CAA: India’s new citizenship law explained’, BBC, 12 March 2024.
[18] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.47-49, 23-4.
The Tribunal explained the country information before it may lead it to find the applicant is not impacted by the Citizenship Amendment Act 2019 personally, given he holds an Indian passport, and that he does not face any specific risk of harm in relation to the implementation of that legislation.
In relation to the National Register, the Tribunal explained country information before it suggests the register has only been implemented in Assam, to identify illegal residents of Assam, including Muslim migrants from bordering Bangladesh and all other illegal migrants[19]. The Tribunal explained it appears the citizenship amendments are linked to the National Register, in that the Citizenship Amendment Act 2019 will help protect non-Muslims who are excluded from the register and face the threat of deportation by providing a citizenship pathway.
[19] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.46, 23.
The Tribunal outlined that in relation to the register in Assam itself, there appears to be no country information before it which indicates a person must have a Birth Certificate to obtain registration for the National Register. It explained the information before it suggests a wide variety of documents from a person’s ancestors, such as the applicant’s mother, plus a wide variety of documents from himself, would be sufficient[20]. It also explained the National Register has not been implemented in Telangana, which the applicant has indicated he would return to if he had to return to India, and it is not clear what documentation may be required if it were implemented there.
[20] Government of Assam, Office of the State Coordinator of National Registration, ‘What are the admissible documents’, accessed at on 7 June 2024.
The Tribunal explained the information before it may lead it to find he does not face a real chance of becoming stateless in India, or a real chance of harm if he had to return to India in the reasonably foreseeable future, as a result of either the National Register or the Citizenship Amendment Act 2019.
At hearing, after discussing this country information, the applicant acknowledged the Citizenship Amendment Act 2019 may not impact him directly at the moment and confirmed he was not stating he is not an Indian Citizen. He explained his concern is the people who attacked him and bullied him, and that it is an anti-minority act, India is a secular nation, and the Prime Minister is giving hate speeches conveying anti-Muslim sentiment, so what support do minorities of the nation have. He stated he has a child now and doesn’t want anyone to experience the situation he has experienced.
Given the complexity of the matter, the Tribunal provided the applicant with a period until 21 June 2024 to give the Tribunal any additional materials or submissions he wished to in relation to the Citizenship Amendment Act 2019 or the National Register. The applicant’s submission of 21 June 2024 did not address the Tribunal’s concerns in relation to whether he is impacted in any direct way by the Citizenship Amendment Act 2019 or National Register as discussed with the applicant at hearing.
The Tribunal considered the applicant’s responses, and his oral and written evidence throughout the process, and accepts the Citizenship Amendment Act 2019 broadly disadvantages Muslims and other minority groups by including religion as a criterion for citizenship eligibility. The Tribunal accepts the applicant is an Indian citizen and the Citizenship Amendment Act 2019 does not impact him directly. The Tribunal accepts India’s Prime Minister Modi has been accused of using anti-Muslim hate speech at a rally[21]. The Tribunal does not accept, given the applicant holds an Indian passport and considering the information before it, that he will be rendered stateless if he returns to India in the reasonably foreseeable future for any reason.
[21] ‘Indian Prime Minister Narendra Modi accused of using anti-Muslim ‘hate speech’ at election rally’, ABC News, 24 April 2024; ‘India’s opposition criticises Modi for ‘hate speech’, BBC, 22 April 2024.
Do the applicants meet the refugee criterion?
The applicant claims if he returns to India he will be discriminated against, threatened, and physically harmed by Indian nationalists who want to persecute him for being a practising and identifiable Muslim and not a true Indian, to the extent he may be killed. He also raised concerns about employment discrimination in respect of himself and the second-named applicant.
The Tribunal, for the reasons set out above, has accepted the applicant lived in [Country 1] between 2005 and 2017 and returned to live with his family in Warangal in April 2017. The Tribunal has accepted the applicants are practising Sunni Muslims and are identifiable as a Muslims through dress, physical appearance, and name. The Tribunal has accepted the applicant prays five times a day and attends the mosque on Fridays and weekends and that he was able to express his religious beliefs in India before departing for Australia. The Tribunal has accepted before coming to Australia the applicant attended seven or eight interviews and found one job as [an occupation 2] in Hyderabad. The Tribunal has accepted the second-named applicant has not worked in India, [Country 1], or Australia and that she tried a couple of times to look for work in 2017 in India.
The Tribunal has accepted the applicant experienced some employment discrimination in India because of his Muslim religion and religious appearance. The Tribunal does not accept the applicant was denied employment in India on account of his Muslim religion, religious appearance, or religious practices. Nor has the Tribunal accepted the second-named applicant was denied employment in India on account of her Muslim religion or religious appearance.
The Tribunal has accepted the applicant was threatened, harassed, and physically harmed once in April 2017 on a train owing to his Muslim religion and religious appearance, where a group of six or seven boys verbally harassed and threatened him, pushed him, and grabbed at his beard. The Tribunal has also accepted the applicant was threatened once on his scooter in 2017 in India by a member of the RSS, who verbally harassed and antagonised him owing to his Muslim religion and religious appearance. The Tribunal has accepted the applicant tried to report the train incident to the police. It has not accepted the police did not assist the applicant in his report of the train incident owing to his Muslim religious beliefs or religious appearance or lack of Hindu faith.
The Tribunal has accepted that neither the applicant nor his family have experienced any issues related to housing demolition or the forced acquisition or bulldozing of their land and that the applicant is not a member of any political party and that the is not interested in politics. The Tribunal has accepted the applicant’s family have not been harmed in India, other than his brother who has experienced verbal exchanges with members of the Hindu community.
The Tribunal has accepted the applicant finds the events he experienced in India and the rise of Hindu nationalism distressing. The Tribunal has accepted since the election in 2014 of the BJP government there has been sustained media attention on the issue of Hindu nationalism, a rise in Hindu secularism, discrimination against Muslims, and a narrative of Hindu nationalism, and that a key aim of Hindu nationalism is to restore the pre-eminence of Hindu culture in India.
The Tribunal has accepted the Citizenship Amendment Act 2019 broadly disadvantages Muslims and other minority groups by including religion as a criterion for citizenship eligibility. The Tribunal has accepted the applicant is an Indian citizen and the Citizenship Amendment Act 2019 does not impact him directly. The Tribunal has accepted India’s Prime Minister Modi has been accused of using anti-Muslim hate speech at a rally. The Tribunal has not accepted the applicant will be rendered stateless for any reason on return to India.
For the following reasons, and having regard to the findings above, the Tribunal is not satisfied there is a real chance that the applicants will suffer serious harm upon return to India in the reasonably foreseeable future.
To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, whilst s 5J(1)(b) imposes an objective standard, that there must be a real chance of that fear being realised and the person being persecuted.

100. The Tribunal accepts the applicant is concerned about rising Hindu nationalism in India and acknowledges his distress in relation to the incidents of harm he experienced in India in 2017 and changing attitudes amongst some members of the Indian community towards Muslims and other religious minorities. The Tribunal accepts, as supported by the country information outlined above, that the applicant will face a degree of community discrimination and verbal harassment on return to India, including Hyderabad, due to his Muslim religion and religious appearance.
101. The Tribunal considered the applicant’s claim he will be physically harmed and potentially killed on return to India because of his Muslim religion and by being identifiable as a Muslim. In his oral and written evidence, the applicant stated he had experienced two incidents of harm in India, and he did not want to experience a third and potentially be disabled for the remainder of his life or killed. At hearing the Tribunal raised with the applicant, as outlined above, that the country information provides Muslims face a low risk of societal violence, and whilst societal violence does occur in India, and can have serious or fatal consequences, it is poorer and lower-caste Muslims who are assessed as being at greater risk of violence. In response to the Tribunal’s concern about whether he faces a real chance of serious harm on return to India, he referred to lynchings, the possibility that people could do anything, and his desire to live in a world with freedom. He also broadly referred to concerns about increasing Hindu nationalism, as evidenced in the ideology of the BJP, and the impact on the Muslim community, such as the forced demolition of some Muslim mosques in place of Hindu temples.
102. The applicant’s response to the Tribunal’s concerns, in addition to his written submissions of 27 May 2024 and 21 June 2024, present a general overview of the broad issues facing Muslims and minority groups in India and that have been heavily discussed in the media. The Tribunal finds the applicant was unable to provide a persuasive account of why he specifically would face serious harm on return to India owing to his religious beliefs, his religious practices, and his religious appearance. Whilst the Tribunal appreciates the applicant would prefer not to return to India and that he found the incidents of 2017 distressing, it finds his evidence throughout the process as to the harm he may encounter on return to India was speculative in the context of the country information and lacking details as to what in his circumstances would place him at a heightened risk of physical harm or genuine threats on his life from Hindu nationalists or anyone else.
103. The Tribunal has accepted the applicant was involved in the two incidents of harm in 2017 in India in which he was targeted because of his Muslim religion and religious appearance. As raised with the applicant at hearing, the Tribunal finds these incidents are not indicative of a targeted attack on the applicant’s life or that he is at risk of continued harm on return to India. They were isolated and disconnected incidents and on both occasions the applicant was able to depart the situation without further incident. The applicant explained at hearing that his family who remain in Warangal have not experienced harm, other than his brother who has similarly experienced verbal altercations with Hindu nationalists. The applicant is well-educated, with a University degree and a comprehensive working history. He is not involved in any political parties and has no interest in politics. His religious practices involve prayer and attendance at the mosque, which the Tribunal has accepted he was able to undertake in India without issue. The Tribunal finds there is nothing in the applicant’s profile that puts him at particular risk of serious harm amongst the Muslim community from Hindu nationalists or that would make him, specifically, a target of physical harm or result in attempts on his life. Given the above, the Tribunal finds there is no real chance the applicant will be subject to serious physical harm, assaults, significant physical ill-treatment, significant physical harassment, or that he will be genuinely threatened with his life or killed by Hindu nationalists or anyone else on return to India in the reasonably foreseeable future.
104. The Tribunal accepts there is a real chance the applicant will be subject to verbal harassment, taunts, and negative comments on return to India due to his Muslim religion, religious practices, and religious appearance. As discussed with the applicant at hearing, it finds such conduct, or a combination of taunts, verbal harassment, or negative comments, does not amount to serious harm in accordance with s 5J(4)(b) of the Act. Whilst distressing to the applicant, it finds negative comments, taunts, harassment and negative community attitudes are not a threat to the applicant’s life, significant physical harassment of the applicant, significant physical ill-treatment of the applicant, or any other type of harm that would equate to serious harm as contemplated by s 5J(5).
105. The Tribunal accepts the applicant, as well as the second-named applicant, face a real chance of employment discrimination on return to India. The Tribunal has not accepted the applicant, or the second-named applicant, were denied employment in India on account of their Muslim religion, religious practices, or religious appearance. When the Tribunal raised with the applicant that it may not find the employment discrimination he or the second-named applicant may face in India amounts to serious harm, he confirmed he did not have an issue with employment, and rather his issue was with identity discrimination, and lack of growth in employment. Whilst the Tribunal accepts the applicant may not have the same economic growth opportunities across all industries as other members of the Indian community, including Hindus, and that he will face a level of identity discrimination owing to his Muslim appearance and religious beliefs, it finds these concerns do not amount to serious harm in accordance with the Act.

106. The Tribunal finds the employment and identity discrimination and lack of promotion or economic growth that the applicants may experience on return to India will not result in significant economic hardship that threatens their capacity to subsist, the denial of basic services that threatens their capacity to subsist, or the denial of capacity to earn a livelihood of any kind that threatens their capacity to subsist. The applicant was able to secure work in Hyderabad before his departure to Australia. Whilst the second-named applicant did not secure employment, the applicant explained she applied for jobs only a few times, and stated at hearing that she has never worked in India, [Country 1], or Australia. The country information raised with the applicant at hearing as outlined above indicates Muslims have a 4% reservation in education and government employment in Telangana. The Tribunal finds the second-named applicant has a high level of education and tertiary qualifications and the ability to seek work in India if she wishes. Considering these factors individually and cumulatively, the Tribunal finds the applicants’ concerns about employment discrimination and reduced economic growth in India do not amount to serious harm in accordance with s 5J(4)(b).
107. The applicant raised a number of concerns at hearing and in his written submissions relating to the demolition of land within Muslim communities, the implementation of the Citizenship Amendment Act 2019 and the National Register and general concerns about restrictions on Muslim religious freedom. At hearing he explained he and his family were not directly impacted in any way by any demolition of land. When the Tribunal raised with the applicant at hearing country information that indicated he would not personally be impacted by the Citizenship Amendment Act 2019, or the National Register if it were implemented in Telangana, or rendered stateless in India as a Muslim he confirmed he was not stating he was not an Indian Citizen, and his concerns were that the legislation is anti-minority. Given this, and the country information as outlined above as discussed with the applicant at hearing, the Tribunal finds there is no real chance the applicants will face serious harm in relation to land demolition in India on account of their Muslim religion or for any other reason, or in relation to the Citizenship Amendment Act 2019 or the National Register.
108. At hearing the applicant stated he was able to practice his Muslim religion before departing India. He described attending the mosque in India. Whilst he explained some mosques had been demolished in India to make way for Hindu temples and that he was harassed in relation to his religious dress, he was still able to attend mosques in India without issue and dress in religious attire without restriction. There is no evidence before the Tribunal that the second-named applicant was prevented from practising her religion or from dressing in accordance with her religious beliefs. In these circumstances the Tribunal finds the applicants do not face a real chance of serious harm relating to their ability to practice or express their Muslim religious beliefs in India in the reasonably foreseeable future.
109. The applicants did not claim, and there is nothing in the material to suggest, that they fear persecution for any other reason in India.
110. For the reasons given above, and having considered the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that if the applicants return to India now or in the reasonably foreseeable future that they face a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicants have a well-founded fear of persecution, the applicants do not meet the definition of refugee in s 5H(1) and do not satisfy the criterion set out in s 36(2)(a).
Do the applicants meet the complementary protection criterion?
111. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa).
112. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.
113. For the reasons set out above, the Tribunal has found that there is not a real chance that the applicants will experience harm in relation to land demolition in connection to their Muslim religion or any other reason or on account of the Citizenship Amendment Act 2019 or the National Register if they return to India. The Tribunal has also found that there is not a real chance the applicants will experience harm relating to their ability to practice or express their Muslim religious beliefs in India. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[22]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows the Tribunal finds that the applicants do not face a real risk of significant harm in relation to those claims.
[22] MIAC v SZQRB [2013] FCAFC 33.
114. The Tribunal considered the applicant’s claim he will be subject to verbal harassment, threats, physical harm and potentially killed on return to India owing to his Muslim religion. The Tribunal finds, given the country information referred to above and discussed with the applicant at hearing, and considering his specific circumstances, level of education, employment history, and political profile, that he does not face a real risk of serious threats on his life, of being tortured, or being arbitrarily deprived of his life, of being physically harmed, or of having his life taken on return to India.
115. The Tribunal finds the applicant does face a real risk of being subject to verbal harassment, taunts, and negative comments on return to India due to his Muslim religion, religious practices, and religious appearance. Whilst the Tribunal acknowledges the applicant found his circumstances in India distressing and that he is distressed at the changing Hindu nationalist sentiment taking place in India since the BJP came into power, as raised with the applicant at hearing it finds the verbal harassment, taunts, and negative community comments the applicant has a real risk of facing in India do not amount to significant harm within the exhaustive definition contained in s 36(2A). The Tribunal finds such conduct, or the cumulative effect of negative comments and community attitudes or taunts, does not result in the applicant being arbitrarily deprived of his life, the death penalty being carried out on him, or him being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
116. Cruel or inhuman treatment or punishment and degrading treatment or punishment are both defined in s 5(1) of the Act. To amount to cruel or inhuman treatment or punishment, an act or omission must cause either ‘pain or suffering’ or ‘severe pain or suffering’, intentionally inflicted on a person, which can be either physical or mental. The definition of degrading treatment or punishment in s 5(1) is specific as to the level of humiliation which must be evoked by the particular act or omission and requires extreme humiliation which is unreasonable.
117. The Tribunal considered the applicant’s specific circumstances, including the nature of the verbal harassment, negative comments, and taunts that the applicant has a real risk of facing on return to India in the reasonably foreseeable future, the applicant’s educational and work background, his resilience and capacity to face challenges within uncertain circumstances and unfamiliar environments, the level of family support the applicants have in India, and the limited frequency with which the country information, outlined above and discussed with the applicant at hearing, indicates Muslims in India experience significant day-to-day discrimination. Considering these factors individually and cumulatively, although the Tribunal accepts the applicant will experience some insecurity, distress, and an impact on his confidence from negative comments, verbal harassment and taunts, as he explained he had experienced after the 2017 incidents, it finds such conduct or the cumulative effect of such conduct over time on the applicant does not meet the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment or any of the other instances of significant harm in s 36(2A).
118. The Tribunal has accepted there is a real chance, and thus a real risk, that the applicants will face a level of employment discrimination on return to India in the reasonably foreseeable future owing to their Muslim religion and religious appearance. When the Tribunal raised with the applicant at hearing it may not find such conduct amounts to significant harm, he expressed concerns about limited economic prospects and identity discrimination.
119. The applicant has a strong work history in [Country 1] and was able to secure employment in India before departing to Australia. Although the second-named applicant has not worked in India, the applicant explained at hearing that she has similarly not worked in [Country 1] or in Australia. The Tribunal finds in circumstances where there is 4% reservation in education and government employment in Telangana for Muslims, unemployment is on a declining trajectory in Telangana, and there are work opportunities across multiple fields, as discussed with the applicant at hearing and outlined above, the applicants will not be denied employment in India and will have work available to them if they wanted to seek it out on return to India.
120. Whilst the applicants may have some limitations in their economic prospects across all positions and industries in India on account of a level of religious discrimination, and they may face some identity discrimination on account of their Muslim religion and appearance, the Tribunal finds they will not be subjected to cruel or inhuman treatment or punishment, or degrading treatment or punishment, or any of the other instances of significant harm set out in the exhaustive definition in s 36(2A). Considering the country information referred to above and discussed with the applicant at hearing, and the applicants’ specific circumstances, including their educational backgrounds and University education, the Tribunal finds the applicants’ concerns about employment discrimination due to their Muslim religion and religious appearance and dress do not amount to significant harm in accordance with s 36(2A). Nor does the Tribunal find the cumulative effect of employment discrimination in combination with negative comments, taunts, or verbal harassment in relation to the applicants’ Muslim religion, religious practices, or religious appearance amounts to significant harm in accordance with s 36(2A).
121. On the evidence before it, whilst the Tribunal is sympathetic to the applicants’ circumstances, 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. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to India that they will be arbitrarily deprived of their lives or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
122. The Tribunal is therefore not satisfied the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
123. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
124. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
125. 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.
DECISION
126. The Tribunal affirms the decision not to grant the applicants protection visas.
Rachelle Johnston
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.
…

[2024] AATA 3329

14 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal