1915296 (Refugee)
[2025] ARTA 1178
•12 March 2025
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 2CASES
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 332Any 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 evidence.
The Tribunal also received oral evidence from [Daughter A] (her daughter), [Brother A] (her brother), and [Brother B] (her brother).
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The Tribunal is grateful to the interpreters assisting in this matter.
The applicant was represented in relation to the review by Mr G. Singh. The representative attended all the Tribunal hearings and made legal submissions addressing the issues, concerns, evidence and protection claims including making closing arguments.
REFUSAL BEFORE THE DEPARTMENT
The reasoning of the Delegate forming the refusal to grant the protection visa is reproduced below:[1]
The applicant has been consistent in her claims about the land/family dispute in her interactions with the department and I accept that this occurred. However, of significance is that the applicant has advised that the land is now under her brother-in-law’s control. In addition, the applicant left India in 2013, some eight years after the claimed harm and has returned on three occasions. She has not reported any further conflict with her brother-in-law or his family. In addition her husband (who had filed the court case) is deceased. In my mind, the cause of any land dispute has no (sic) ceased.
[1] Page 3 of Decision Record of Department - [File number].
The Tribunal discerns three core rationales for the refusal.
Firstly, the land in dispute is now under her brother-in-law’s control.
Secondly, the applicant left India in 2013, and has returned on three occasions without further harm to her from her brother-in-law.
Thirdly, the applicant’s husband who had filed the court case is now deceased.
Importantly, the Department cannot be faulted as the Delegate was left to make the protection assessment on written materials as the applicant was unable due to medical illness to attend the invitations for interviews on 4 February 2019 and 28 March 2019.
This essentially left the Department in an unenviable position of having to conduct the protection assessment ex-parte without all the requisite probative material.
Had the applicant been well enough to attend her protection claims interview with the Department, the concerns of the Delegate could have been better addressed.
ACCEPTANCE BY DEPARTMENT OF LAND/FAMILY DISPUTE
The delegate after summarising the claims and evidence, states relevantly:[2]
The applicant has been consistent in her claims about the land/family dispute in her interactions with the department and I accept that this occurred.
[2] Ibid.
The applicant is entitled to the evidential benefit of these factual findings. See VTAO v Minister for Immigration and Multicultural and Indigenous Affairs.[3]
[3] [2004] FCA 927; (2004) 81 ALD 332 at [53] (Merkel J).
Furthermore, the applicant is entitled to proceed on the review before the Tribunal on the basis that the issues in dispute in the decision below will be the matters dealt with at the Tribunal. See SZBEL v MIAC.[4]
[4] (2006) 228 CLR 152 at [36], [44], [47].
It is not for the Tribunal to reopen or dispute the findings of fact in their favour in the decision below unless there are logical reasons for doing so. The corroborative material and overall narrative of evidence presented to the Tribunal did not suggest otherwise.
The applicant further provided corroborative material in the form of medical reports as to injuries received from assault alleged to have been occasioned by her brother-in-law, an Indian Penal Code ‘First Incident Report’ alleged to have been fabricated by her brother-in-law, and a notarised affidavit from her daughter deposing as to the animosity of the applicant’s brother-in-law. These three documents date from 2004 being the year when the violence towards to the applicant and her husband is claimed to have escalated by her brother-in-law due to the land/family dispute.
Therefore, the starting point of this review is that the land/family dispute claim is not in issue. It was accepted by the Department below. It is not a live issue before the Tribunal.
The dispositive issues on review centre around the three central reasons for the Delegate refusing the protection visa, which consisted of the land being under the brother-in-law’s control, the applicant’s return trips to India, and the applicant’s husband prosecuting his land claim passing away.
CRITERIA FOR A PROTECTION VISA
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.
COUNTRY OF NATIONALITY
The Tribunal finds all the applicant’s identity and nationality are confirmed by her passport and recorded personal particulars.
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
The applicant submitted to the Tribunal that she no longer wished to proceed with that part of her claim that dealt with her fear of harm from moneylenders.
She explained that the debt in issue had been fully repaid by the time her case had reached the Tribunal and she did not fear harm from the moneylenders.
This was an entirely appropriate concession. It saved the Tribunal time and allowed all parties to focus on the core extant claim which arose out of the land/family dispute issues.
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].
However, [Brother-in-law A] was still opposed to his brother [Husband A] inheriting any part or portion of the 8 acres.
By the end of 2005, [Father-in-law A] had arranged for and transferred 2.5 acres of the land to [Husband A] and the applicant.
However, before [Father-in-law A] could arrange to transfer the balance 1.5 acres to the [Husband A] and the applicant, he died [in] December 2005.
The applicant and her daughter both were firmly of the view that [Brother-in-law A] had murdered his own father [Father-in-law A]. They described the body of [Father-in-law A] as being already wrapped and tied and shrouded by the time they rushed over to view the body upon being told [Father-in-law A] has passed away.
The effect of [Father-in-law A] passing away in late 2005 was that only 2.5 acres of land was transferred to the applicant and her husband. The balance 1.5 acres was not transferred.
The applicant stated that till to date, that balance 1.5 acres is in the control of [Brother-in-law A]. That he has his own 4 acres of land, plus the applicant’s 1.5 acres that did not get transferred due to the death of [Father-in-law A], and he is asserting control of the 2.5 acres of land that is formally in the applicant and her husband’s name.
That in 2009 the applicant’s husband [Husband A] suspiciously died in a hit-and-run car accident. The applicant claims that [Brother-in-law A] orchestrated this accident.
The applicant says that she sent her only child, her daughter to Australia in 2009 as she feared for her daughter’s life after both her husband and father-in-law passed away in such suspicious circumstances along with the threats over the land by [Brother-in-law A].
The applicant stated she came to Australia in 2013. The trips she made back to India were when her brothers were still in India, and she was under the care and protection of her two brothers. Now both her brothers had migrated to [Country 1] and [Country 2] respectively, she did not have any protection in India.
The applicant stated she was [age] years old and frail, that it would not be possible for an old widowed woman with no support in India to relocate and avoid her brother-in-law [Brother-in-law A]. The Tribunal observed she was visibly elderly and frail.
The applicant stated she could not rely on state protection in the form of the police or local courts in Punjab due to corruption, delays and bribery. That [Brother-in-law A] was friendly with the local authorities and no action would be taken against him. Furthermore, that such court matters take many years.
The applicant stated she feared that if she returned to India to her home, that [Brother-in-law A] would seriously harm her or kill her so as to solidify his claims and control over the land.
EVIDENTIAL PRINCIPLES IN EVALUATING PROTECTION CLAIMS
A minor contradiction or some exaggeration can be expected and tolerated as part of assessing a protection claim. See Gummow and Hayne JJ in Abebe v Commonwealth of Australia.[6]
[6] [1999] HCA 14; (1999) 197 CLR 510 at 191.
It is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts, per Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat.[7]
[7] [2006] FCAFC 61 at [76].
It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out, per MIEA v Guo & Anor.[8] The Tribunal is not required to accept uncritically any and all claims made by an applicant, per Randhawa v MIEA.[9]
[8] (1997) 191 CLR 559 at 596.
[9] (1994) 124 ALR 265 at [278].
EVALUATING THE APPLICANT’S CLAIMS AND EVIDENCE
The Tribunal questioned the applicant as to why she went back to India on return trips if she had such strong fears about her brother-in-law [Brother-in-law A] harming her over the land? The applicant stated she was forced to return to India as she had no adequate arrangements for her to stay in Australia. The applicant explained that whenever she went back to India, she would stay with her two brothers. She did not go back to her family home after 2009, being when her husband was killed in the hit-and-run car accident.
The Tribunal questioned the applicant and suggested there might not be a real chance of serious harm, that the applicant should have stayed in Australia and urgently lodged a protection visa. The applicant explained that her daughter was in Australia on a student visa and temporary living arrangements were in place, that she was not aware of the process of making a protection visa application as she was quite old and uneducated. That even now, she did not easily want protection but was forced to seek protection due to her fears.
The Tribunal suggested to the applicant that if she really feared serious harm, she would have somehow stayed back in Australia, for example even by sleeping on a couch or sleeping in her daughter’s room. The applicant replied she was not aware of her right to seek a protection visa and whenever she went back to India, she would hide and stay with her two brothers and avoid the land and [Brother-in-law A].
The Tribunal asked the applicant’s daughter to explain why she also went back to India if there wad such a serious threat of harm from her uncle [Brother-in-law A]. The applicant’s daughter replied that she only made short trips to support the applicant in India and that they stayed with the applicant’s two brothers who were able to keep them safe and protected.
The applicant further explained that both her brothers left India in 2016, after which period she did not return to India. The Department Movement Record corroborated this timeline.
The Tribunal suggested that her claims were not suitable for protection and more akin to a civil land dispute best dealt with by the local courts and engaging lawyers in India. The applicant agreed that there was a land dispute but that arising out of the land dispute were the serious threats being made against her and the suspicious deaths of her father-in-law who initially owned the land and her husband who was to inherit the land. That if she returns to India, she would be seriously harmed or killed by [Brother-in-law A].
The Tribunal suggested to the applicant that the land was given in piecemeal as there might be a contest as to who would be the true inheritor. The applicant explained that her father-in-law [Father-in-law A] was harassed and threatened by [Brother-in-law A] so to placate him, the land was broken up into piecemeal transfers.
The Tribunal suggested to the applicant it did not make sense for the initial 2.5 acres to be given to the applicant and her husband [Husband A]. The applicant explained that this was the decision of the panchayat, but that [Brother-in-law A] was never happy. The panchayat was of the view that a son should inherit his fair share and so decreed that 4 acres should be given to her husband.
The Tribunal asked the applicant why the local courts or panchayat could not mediate this matter of the land and threats by [Brother-in-law A]. The applicant stated that the local authorities were slow, subject to bribery and would not protect her share of the land.
The Tribunal asked the applicant why she could not return to India and seek help from the local police. The applicant explained that she was an elderly widow and would not be able to pursue this matter with the police. That women such as herself did not have much sway with the authorities compared to a well-resourced land-owning man such as [Brother-in-law A]. That when her husband [Husband A] was alive, he did try the legal avenue, but nothing happened and then he suspiciously passed away in the hit-and-run car accident.
The Tribunal suggested to the applicant as the whole issue centred around the land, perhaps she could relocate far away from the land and the threats would dissipate. The applicant replied that at her frail age of [age] and ill-health, and without support or funds, that it would be impossible for her to relocate. She was a widow. That even if she gave up the 1.5 acres, [Brother-in-law A] would come after her for her separate marriage home also.
The Tribunal challenged the applicant about her suspicions regarding the death of her father-in-law in 2005 and her husband in 2009.
The applicant stated [Brother-in-law A] supressed any police involvement or forensic autopsy of her father-in-law in 2005. That her husband [Husband A] went to see his father’s body but upon arriving at [Brother-in-law A’s] house saw that the body was already shrouded and bound and tied which did not permit any inquiry. Furthermore, that her husband had seen his father the night before and he appeared fine and healthy. Her husband suspected his brother [Brother-in-law A] of murdering their father.
The Tribunal asked about the views of the local village regarding the deaths of the applicant’s father-in-law and husband. The applicant explained that the villagers were too afraid of [Brother-in-law A] and would not speak out.
The applicant explained that once her brothers left India, she did not return to India for fear of serious harm from [Brother-in-law A].
The Tribunal also heard from the applicant’s daughter [Daughter A] who explained the culture locally of women and girls being treated unfairly, especially in their case of inheritance as she was the only child and female.
The applicant’s daughter confirmed that she also saw her grandfather’s body bound and tied and that the cremation was rushed without any inquiry. She said her grandfather had feared being harmed by his son [Brother-in-law A].
The applicant’s daughter confirmed that her father tried to take up a property case in court but she was not aware of much more.
The Tribunal proceeded to also hear evidence from the applicant’s two brothers by audio-visual link as each was respectfully resident in [Country 1] and [Country 2].
Notably both brothers, being [Brother B] and [Brother A] did not have the opportunity of hearing the evidence of the applicant or her daughter. However, their evidence confirmed the overall account of fear of serious harm given by the applicant.
Both [Brother B] and [Brother A] gave evidence that the applicant stayed with them and were protected by them when she made her visits to India. [Brother A] confirmed that he would pick the applicant up from the airport and she would stay with him and avoid [Brother-in-law A].
Both brothers reiterated the suspicious nature of the applicant’s father-in-law and husband passing away and their fears of the applicant’s safety if she returned home.
CORROBORATING DOCUMENTS IN SUPPORT
The applicant submitted the following material to corroborate her claims for protection.
Land Transfer instruments for the land in question.
100. Sketch of land in question.
101. Medical Report for 2004 assault on the applicant showing [her] injuries.
102. Indian penal provision – First Incident Report of 2004 alleging a case by [Brother-in-law A] and [Sister-in-law A] against the applicant and her husband.
103. Affidavit of the applicant’s daughter [Daughter A] from 2004 contesting the First Incident Report.
104. Affidavits of the applicant’s sister [named] and her husband [named] in India describing the land dispute and fears of harm to the applicant.
105. Affidavit of her brother [Brother B].
106. Affidavit of her brother [Brother A].
107. News report of [September] 2009 as to the applicant’s husband’s death and the hit-and-run road accident with the driver of the alleged other vehicle [driver’s name] taken in for police questioning and charges.
108. Death Certificate of the applicant’s father-in-law for [December] 2005.
IMPRESSION OF OVERALL EVIDENCE
109. The Tribunal gives consideration to the particular challenges facing asylum seekers in giving their evidence per AVQ15 v Minister for Immigration and Border Protection.[10]
[10] [2018] FCAFC 133 at [28].
110. The Tribunal is also mindful of the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status which states that ‘if the applicant’s account appears credible, he (or she) should, unless there are good reasons to the contrary, be given the benefit of the doubt’ and ‘the benefit of the doubt, should, however only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility . The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts’.[11]
[11] United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at [196] and [203], available at The applicant did not seek to embellish her claims or exaggerate her fears.
112. The applicant made appropriate concessions, including conceding that her claims about debts were no longer well-founded as the debt was paid off.
113. Both the applicant’s brothers were sincere in describing the fears they felt about their sister and their own needs to relocate from India to be with their own children overseas.
114. The applicant’s daughter came across as genuine and concerned about her mother’s welfare.
115. The Tribunal found all the parties to be credible witnesses and accepted their evidence.
116. Notably the above corroborating documents were contemporaneous from 2004, 2005 and 2009 and supported the testimony given by the applicant, her daughter and her brothers.
PARTICULAR SOCIAL GROUP ANALYSIS
117. For the applicant to come within the ambit of s 36(2)(a) of the Act, she must fear persecution due to her race, religion, nationality, membership of a particular social group or political opinion.
118. Membership of a particular social group is set out in ss 5K and 5L of the Act.
119. The applicant claims to fear persecution arising from her relationship with her brother-in-law and the land/family dispute. She is also an elderly frail widow with a sole female child.
120. These are not characteristics which can be unbolted from her persona or easily discarded.
121. The Tribunal accepts that applicant is a member of this particular social group.
CONSIDERATION OF CLAIMS AND EVIDENCE
122. The issue before the Tribunal is whether the applicants are persons in respect of whom Australia has protection obligations pursuant to:
a.The refugee criterion in s 36(2)(a) of the Act; or
b.The complementary protection criterion in s 36(2)(aa) of the Act; or
c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non‑citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant.
123. For the following reasons, the Tribunal has concluded that protection obligations are owing to the applicant and the decision under review should be remitted for reconsideration.
REFUGEE CRITERION ASSESSMENT
To satisfy the refugee criterion in the Act, the applicants must satisfy the Tribunal that they are a refugee pursuant to s 36(2)(a) of the Act. Relevantly this requires the applicants to come within the definition of s 5H(1)(a) of the Act which defines a refugee as a person who has a nationality and is outside their country of nationality and is unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of persecution. Section 5J(1) of the Act further provides that 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, and 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, pursuant to the requirements set out in ss 5J(2)–(6) and ss 5K–LA of the Act.
125. In Chan Yee Kin v MIEA the High Court held that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%.[12]
[12] (1989) 169 CLR 379.
126. The Tribunal accepts that there is a real chance that if the applicant returns to India now or in the reasonably foreseeable future, the applicant will be persecuted by her brother-in-law [Brother-in-law A] and suffer serious harm per s 5J(5) of the Act as follows:
a.Being seriously assaulted or killed by her brother-in-law or persons at his behest constituting serious physical harassment and loss of life.
b.Being forced or placed under duress to sign or execute or transfer over her land to her brother-in-law upon threats of serious harm or loss of life.
c.Being forcibly removed from her marital home and the land or living in constant fear of being attacked in her marital home or the land without support and alone.
d.Not having effective protection from the authorities, with country information suggesting that police and judicial services are hampered by corruption and delays.
e.Not being able to relocate to avoid her brother-in-law due to her age, ill-health and frailty. She is vulnerable and an easily identifiable and locatable target.
PROBATIVE VALUE OF SIGNIFICANT PAST SERIOUS HARM EVENTS
127. The Tribunal notes that while past harm is not an essential step in the applicant demonstrating a well-founded fear, it may ground an inference that a person’s fear is well-founded, per the High Court in Abebe v Commonwealth.[13]
[13] [1999] HCA 14 at [191]–[192].
128. The Tribunal accepts that the prior harm occasioned in 2004 during the tractor injury where the applicant’s [injury] was a significant past harm event. The Tribunal also accepts that the suspicious circumstances of the death of her husband in 2009 and father-in-law in 2005 would have caused her significant mental harm including making her a widow and is a significant past harm event. Rather than a blood feud, it suggests of unilateral persecution by [Brother-in-law A].
129. These past events go towards establishing the applicant’s subjective state of mind and that her fear of harm from her brother-in-law [Brother-in-law A] is well-founded.
ANALYSIS OF THE DEPARTMENT’S TRIPARTITE CONCERNS
130. As noted above, the Department accepted the applicant’s land/family dispute claim but refused the protection visa on three core grounds. The Tribunal turns to examine these tripartite grounds of refusal.
131. Firstly, the Department was of the view that the land in dispute is now under her brother-in-law’s control. To the Tribunal this suggests a real risk of significant harm. The applicant’s brother-in-law is controlling, perhaps as de-facto owner or occupier lands which rightly should belong to the applicant. Should the applicant return to the contested land, it is not a far-fetched or remote possibility that [Brother-in-law A] will seek to exclude the applicant and in doing so seek to seriously harm the applicant to ensure his control and occupation of the contested land is not further subject to legal challenge or factual occupation by the applicant.
132. Secondly the Department was of the view that the applicant left India in 2013 and has returned on three occasions without further harm to her from her brother-in-law. The applicant’s evidence was that she only returned to India whilst her two brothers were there. Her brother [Brother A] gave evidence that he would collect her from the airport and take her to his house and that she avoided [Brother-in-law A]. After both brothers left India, the applicant no longer returned as she feared [Brother-in-law A].
133. Thirdly the Department was of the view that the applicant’s husband who had filed the court case is now deceased. The applicant is the lawful wife of her deceased husband. She would also be the lawful inheritor of the disputed land. She would be able to lay claim to the land through legal rights such as survivorship, joint tenancy, or testamentary rules. Axiomatic would be her right to seek substitution to any writ seeing relief over the land or to institute fresh proceedings over the land in rem or in personam against [Brother-in-law A]. She could file a motion to substitute herself as plaintiff due to her husband passing away, or she could institute fresh proceedings where there is a continuing breach of the law. These proceedings would seek to declare and transfer the land to her, and if need be, injunct, restrain or eject [Brother-in-law A]. She may also have rights in tortious wrongs and criminal harms.
134. The Tribunal is satisfied that the tripartite concerns of the Department do not pose an impediment to the applicant’s claim for protection.
135. It is however important to point out that if the applicant had attended with the Department for her interview, these concerns would have been properly canvassed and laid to rest.
136. Such situations amplify the importance of visa applicants having to attend a proper hearing or interview and presenting all their claims and evidence at first instance and on review.
137. The Department cannot be faulted for the view it took considering the applicant failing to attend her interview invitations due to her ill-health. Merits review permits a fresh examination.
INTEGER OF CLAIMS – THE STRANDS OF AN EVIDENTIAL CABLE
138. The Tribunal is required to consider the applicant’s claims and their component integers, per Htun v Minister for Immigration and Multicultural Affairs.[14]
[14] [2001] FCA 1802 at [42] per Allsop J.
139. The applicant’s claims if analysed in isolation or in a piecemeal manner may suggest there is not a real chance that she would suffer persecution. For example, only considering the passage of time or that the land is effectively controlled by her brother-in-law.
140. However, when examining each component of the applicants claims and viewing them cumulatively analogous to the strands of an evidential cable, the Tribunal is satisfied that there is a real chance the applicant will suffer serious harm if she returns to India either now or in the reasonably foreseeable future at the hands of [Brother-in-law A].
141. The following maters were crucial strands of evidence that when pieced together and considered cumulatively, elevated the applicant’s claim to a real chance of serious harm.
142. The applicant is a frail [age]-year-old widow. Her husband was killed in a suspicious hit and run.
143. In a patriarchal system, especially in a village setting in Punjab India, she had only one child, a daughter. Country information suggests that girl children and women suffer discrimination in India. Notably the applicant only has a daughter. She has no sons. She has no male support.
144. The deaths of the applicant’s husband in 2009 and father-in-law in 2005, although not proven to a high standard such as that required in criminal law or general Briginshaw civil standards, do cast a not insubstantial suspicion that the applicant would be harmed that cannot be ignored.[15]
[15] Briginshaw v Briginshaw (1938) 60 CLR 336 – standards of proof in civil matters.
145. The applicant did not return to India after her two brothers left for [Country 1] and [Country 2].
146. The applicant presented contemporaneously dated documents, especially from 2004, 2005 and 2009 that paralleled the oral evidence. The circumstantial evidence also satisfied the Tribunal.
147. The applicant remained steadfast in her claims when challenged by the Tribunal on numerous matters in issue. Her evidence was tested and unscathed. Her narrative had a logical quality.
UNDERSTANDING LAND DISPUTES
148. In Gone With The Wind, land was described as the only thing in the world worth working for, worth fighting for, worth dying for, because it’s the only thing that matters and lasts.[16]
[16] Margaret Mitchell, Gone With The Wind (1936).
149. Literature and law are not dissimilar, often imitating one another. In Australia the complexity and importance of land and connection to it are underscored by our colonial past and seminal cases such as Mabo v Queensland (No 2).[17] Land rights ought to be construed as human rights.
[17] [199] HCA 23.
150. It is not a remote, insubstantial, or far-fetched possibility that siblings and in-laws will fight over land, inheritance to land and securing their claim to land. Violence cannot be discounted.
151. This has been shown in our colonial past or through the many court cases that regularly happen over competing land rights. Especially with the rising value and scarcity of arable land.
152. The Tribunal accepts that land disputes can be the foundation of protracted conflict and serious harm between opposing parties that claim ownership, whether de jure or de facto.
153. Land claims with its visceral and perpetual quality do not admit of easy resolution or dissipation.
ANALYSIS OF REAL CHANCE OF SERIOUS HARM TEST
154. The acceptance of the land/family dispute by the delegate below in the first instance decision combined with the testimony and corroborating evidence given at the Tribunal provide a reasonably satisfactory basis for the Tribunal to accept that there is a real chance the applicant will suffer serious harm from her brother-in-law [Brother-in-law A] if she returns to India.
155. In the circumstances, it is not a remote or far-fetched possibility that a person such as the applicant’s brother-in-law would seek to harm her on account of the land/family dispute.
156. It is reasonable to infer that a person such as the applicant’s brother-in-law would bear ill-will and animosity to the applicant as she would be able to make claims on the land. His brother and father have both passed away, he already has 4 out of the 8 acres of land, and the only true impediment to the balance land is the applicant who is a widow with a sole daughter.
157. It is not a remote or far-fetched possibility that the authorities and local police involved would delay, dismiss, or fail to take any proper action against the applicant’s brother-in-law. The evidence of the First Incident Report, the counter-case by [Brother-in-law A], the progression of the judicial land complaint, and the arrest of the driver who hit and killed the applicant’s husband all suggest that the applicant would not achieve effective state protection.
158. The applicant is an elderly frail woman. She is [age] years of age and a widow. To return her back to India to fend for her herself would make her an easy target for her brother-in-law. Her right to the land and her familial ties would be the reason for harm. Eliminating the applicant makes controlling all the land much easier for [Brother-in-law A].
159. The Tribunal accepts that it is the applicant’s membership of a particular social group, her relationship to her brother-in-law and of being an elderly frail widow with a sole female child that would be the essential and significant reason for the applicant suffering systemic and discriminatory conduct amounting to persecution contrary to s 5J(4) of the Act.
160. The Tribunal accepts that the applicant would not be able to obtain effective state protection per s 5J(2) of the Act as country information suggests corruption, delays and a lack of effective police and judicial services in the local community and lower court levels. This is heightened by the applicant’s past dealings with the authorities with respect to her subjective fears due to her husband’s death, the tractor injury, FIR report and counter-case.
161. The Tribunal accepts per s 5J(1)(c) of the Act that the applicant due to her old age frailty and being alone would not be able to practically relocate in Punjab or greater India and avoid the serious harm posed by her brother-in-law. She is [age] years old, a widow and frail.
162. Behaviour modification is not applicable in the circumstances per s 5J(3) of the Act. The applicant cannot change her familial relationship to her brother-in-law or to her daughter.
163. The contemporaneous documents from 2004, 2005, and 2009 such as the medical report, FIR report, death certificate, and judicial affidavit reasonably satisfy the Tribunal of a serious land/family dispute between the applicant, her now deceased husband and her brother-in-law [Brother-in-law A] that is deserving of engaging Australia’s non-refoulment obligations.
CONCLUSION – PROTECTION OBLIGATIONS OWING TO THE APPLICANT
164. On the material before it and as set out above, the Tribunal is satisfied that the applicant has a well-founded fear of being persecuted by her brother-in-law and there is a real chance that if the applicant returns to India now or in the reasonably foreseeable future, the applicant would be persecuted by her brother-in-law; and the real chance of persecution relates to all areas of India as the applicant due to her age and frailty cannot relocate, and there is ineffective state protection due to delays in the court system and ineffective local police.
165. The Tribunal acknowledges the assistance of the interpreters and the applicant’s representative during the multiple hearings with complex facts, issues, and materials.
166. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
167. As the Tribunal has found in favour of the applicant under s 36(2)a) of the Act, the Tribunal has not gone on to consider any other protection criteria.
DECISION
168. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Dates of hearing: 11 October 2024, 23 October 2024, and 22 January 2025
Representative: Mr Gurbinder Singh (MARN: 0956761)
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.
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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.
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