1915296 (Refugee) - [2025] ARTA 1178

1915296 (REFUGEE) [2025] ARTA 1178 (12 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1915296

Tribunal:General Member D. Gordon
Date:12 March 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 12 March 2025 at 9:34am
CATCHWORDS
REFUGEE – protection visa – India – particular social group – elderly frail widow – family land dispute – return visits to India – alleged family murders – physical assault – fear of killing – state protection – delay in applying for protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Briginshaw v Briginshaw (1938) 60 CLR 336
Chan Yee Kin v MIEA (1989) 169 CLR 379
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Mabo v Queensland (No 2) [199] HCA 23
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
Randhawa v MIEA (1994) 124 ALR 265
SZBEL v MIAC (2006) 228 CLR 152
VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927; (2004) 81 ALD 332
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of India, applied for the visa on 31 May 2017.
This was a factually complex matter that required three hearings. The applicant appeared before the Tribunal on 11 October 2024, 23 October 2024, and 22 January 2025 to give evidence and present arguments. Significant documents were admitted into…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 1178
Decision Date: 12 March 2025

CaseChat Overview and Summary

The matter in 1915296 (Refugee) concerned a claim for a protection visa by a woman from India who alleged that she would face persecution if returned to her country. The dispute centred on her fear of being killed by her brother-in-law, with whom she had a longstanding family dispute over inheritance of family land, as well as other family members. The applicant also claimed that she had been physically assaulted by her brother-in-law during an altercation over the land and feared further harm. The case was heard and determined by the Australian Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the definition of a refugee as set out in the Migration Act 1958 (Cth). This required the Tribunal to assess whether the applicant had a well-founded fear of persecution for a Convention reason if she were to return to India. The Tribunal also needed to consider the applicant’s credibility and the reliability of her claims, particularly in light of her multiple visits to India since arriving in Australia.

In reaching its decision, the Tribunal noted that the applicant had a genuine fear of being killed by her brother-in-law and other family members due to the ongoing family dispute over the inheritance of family land. The Tribunal accepted that the applicant had been physically assaulted by her brother-in-law during a violent altercation and that this incident had heightened her fear of further harm. The Tribunal also considered the broader context of violence against women in India, including the inadequacy of state protection mechanisms. The Tribunal found that the applicant’s fear of persecution was well-founded and that she met the definition of a refugee.

The Tribunal remitted the decision under review to the Department of Home Affairs for reconsideration, noting that the decision had not properly taken into account the applicant’s particular social group and the specific circumstances of her case. The Tribunal emphasised the importance of a thorough and nuanced assessment of the applicant’s claims, taking into account all relevant factors and evidence.

In conclusion, the Tribunal determined that the applicant was a refugee and remitted the decision under review for reconsideration. The Tribunal's decision underscored the need for a careful and comprehensive evaluation of protection claims, particularly in cases involving family disputes and violence against women.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

No further evidence or assessment was undertaken of the moneylender claims. EVIDENCE OF THE APPLICANT The applicant told of her birth in a village in Punjab, India. She was now [age] years of age. She has a sister in India, [and specified siblings in named countries]. Another brother had passed away. She has completed partial studies in a Punjabi medium school, up to [grade]. Importantly to the thrust of her claim, she confirmed she only has one child, a daughter, who was also present to give evidence at the Tribunal. The applicant explained that her late father-in-law [Father-in-law A] had two sons, namely [Husband A] and [Brother-in-law A]. The applicant married [Husband A] [in] April 1983. The other son [Brother-in-law A] married [Sister-in-law A] some 8 to 10 years later in the mid-1990s. Her late father-in-law [Father-in-law A] owned approximately 8 acres of land. There was a traditional expectation that each son, namely [Husband A] and [Brother-in-law A] would ultimate each inherit 4 acres being a half-share each. However, [Brother-in-law A] was opposed to his brother [Husband A] inheriting 4 acres as [Husband A] and the applicant only had one child, namely a girl child. The position of [Brother-in-law A] was that as [Husband A] and the applicant only had a girl child, the land would be removed from the male inheritance line as their daughter would marry and the land ultimately go to her husband and his family line. Furthermore, [Brother-in-law A] was of the view that he should keep the whole 8 acres, and the whole 8 acres should go to his [sons]. If need be, [Husband A] and the applicant could have their daughter marry one of his sons as part of accessing and using the land and keeping the whole of the land within the family bloodline. This dispute about each brother inheriting the land culminated into violent altercations by 2004. In December of 2004 the applicant, her husband [Husband A], [Brother-in-law A] and his wife [Sister-in-law A] all were involved in a violent assault on the land which saw the applicant [suffer a specified injury], receive hospital treatment and police complaints issue. The applicant stated that [Brother-in-law A] attempted to run her over with the tractor which caused her [injury]. She showed the Tribunal her [injury] which presented with scars consistent with [an] injury in the manner she claimed. The December 2004 family feud over the 8 acres of land led to the applicant’s hospitalization for treatment of her [specified injury], a police complaint by [Brother-in-law A] and a village panchayat about resolving the feud between the two brothers. It seems [Father-in-law A] as the father wanted to placate both sons about their inheritance of the land. The panchayat resulted in an agreement where the applicant and her husband [Husband A] would obtain their 4 acres in piecemeal allotments over time. The applicant stated that their 4 acres was given in broken shares as her father-in-law [Father-in-law A] was threatened by and feared his son [Brother-in-law A].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal finds that the applicant is a citizen of India, which is also her receiving country for the purpose of her protection claims and assessments.MANDATORY CONSIDERATIONS In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In the context of the applicant’s claims, the DFAT Country Report for India relevantly states as follows.[5][5] DFAT Country Report – India – September 2023. 2.11 India ranked 85th out of 180 countries in Transparency International’s 2021 Corruption Perceptions Index, which measures public perceptions of corruption. GAN Integrity notes ‘high corruption risks’ with ‘widespread’ bribery and ‘especially prevalent’ corruption in judiciary, police and public services. 2.38 Social welfare is traditionally provided within the family and many Indians rely on family for support in times of need. It is common for Indian families, even in poor and remote areas, to save what they can in physical cash or jewellery, which might be for the payment of future dowries or family emergencies. 3.114 Significant parts of Indian society remain conservative and patriarchal, intersecting with rural/urban divide, caste, religion and socioeconomic status. 3.122 Violence against women is a cultural phenomenon on which views are not necessarily divided along gender lines. 3.123 Traditional social practices and the low status of women in many parts of India are linked to domestic and gender-based violence. 3.131 Violence against women is a significant problem in India and state protection is often inadequate. Sources told DFAT that police commonly refuse to register cases or investigate claims of violence, including violence that results in grievous bodily harm or death. DFAT assesses violence against women is common, and depends on several factors, including the family of the woman. Violence against women affects women of all socio-economic, caste and language distinctions. DFAT assesses that women experience a moderate risk of sexual harassment and assault in their day-to-day lives. 5.11 According to Freedom House and other sources, the upper levels of the judiciary display more autonomy, however the lower levels can suffer from corruption and politicisation. Bribes may be taken at different stages of the process and might be paid to speed things up rather than change an outcome. 5.12 Some rural communities have village courts (sometimes called nyaya panchayat) which some Indians prefer to the formal legal system. Decisions are quicker, community-based, and often less subject to corruption. However, sources told DFAT that the decisions can be unpredictable and tend to disadvantage minorities and women because individual needs of diverse people may not be considered, as they would be when using formal laws and procedures. WITHDRAWAL OF FEAR OF HARM FROM MONEYLENDER CLAIM