1929417 (Refugee)
[2025] ARTA 1679
•2 July 2025
1929417 (REFUGEE) [2025] ARTA 1679 (2 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 1929417
Tribunal:General Member D. Gordon
Date:2 July 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 following orders:
(i)The first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)The second named applicant satisfies s 36(2)(b)(i) of the Migration Act on the basis of being a member of the same family unit as the first named applicant; and
(iii)The Tribunal has no jurisdiction with respect to the third named applicant due to the third named applicant acquiring Australian citizenship.
Statement made on 02 July 2025 at 9:27am
CATCHWORDS
REFUGEE – protection visa – India – particular social group – only male heir of land –dispute with uncle and another man – attacks and threats – other man imprisoned for serious assault of applicant’s grandfather and father, and now released – land occupied and mother forcibly removed – conflicting wills and protracted civil court proceedings – country information – land ownership and patriarchal inheritance rights – state protection not obtainable and relocation not reasonable – court proceedings and other man’s motivation to locate and harm – members of family unit wife and child – child now Australian citizen with no jurisdiction to review – child’s physical health – younger child not part of application – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (4), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth [1999] HCA 14
Chan Yee Kin v MIEA (1989) 169 CLR 379
Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3
MIEA v Guo (1997) 191 CLR 559
MIMIA v Lay Lat [2006] FCAFC 61
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 124 ALR 265
SZATV v MIAC (2007) 233 CLR 18
SZBEL v MIAC (2006) 228 CLR 152
Yao-Jing Li v MIMA (1997) 74 FCR 275Any 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
This is an application for review of a decision made by a delegate of the Minister on 2 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant is [the first applicant].
The second named applicant is [the second applicant]. She is the wife of the first named applicant.
The third named applicant is [the third applicant]. He is the son of the first and second named applicants. He is presently a minor.
The applicants who claim to be nationals of India, applied for the visas on 4 April 2018.
The delegate refused to grant the visas on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicants had a well-founded fear of persecution, in that there is not a real chance that, if the applicants returned to their country of nationality, the applicants would be persecuted on account of their race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicants were not persons 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 applicants being removed from Australia to their country of nationality, there is a real risk that the applicants will suffer significant harm.
Relevantly, the delegate whilst accepting that there was a family dispute over land back in India, found that the applicants would be able to relocate within India to avoid the harm feared.
The applicants were aggrieved by the decision and sought merits review before the Tribunal.
Jurisdictional issue -the third named applicant is now an Australian citizen
By written submissions, the first and second named applicants informed the Tribunal that their son the third named applicant was now an Australian citizen.
The Departmental Movement Records obtained by the Tribunal also show that the third named applicant has acquired Australian citizenship.
The Tribunal must now determine whether it has jurisdiction over the third named applicant.
The Tribunal refers to the High Court of Australia’s decision in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia.[1] The decision sets out important guiding principles with respect to citizenship and alienage discussed and applied below.
[1] [2020] HCA 3 at [12-14], [95], [236]-[240], [404], [406], [432].
Enumerated under s 51 of the Australian Constitution, the distribution of federal legislative heads of power relevantly includes the power to make laws with respect to aliens, foreign affairs and immigration thus providing authority to the Commonwealth Parliament to legislate with respect to non-citizens in the migration and refugee field. These legislative powers are codified in the Act and characterised as dealing with the entry, stay and departure of non-citizens including their applications for visas and where refused, their rights of review to this Tribunal.
Conversely, the third named applicant is now no longer a non-citizen. He is now an Australian citizen and a member of the Australian body politic. By such nationalising process, he is now removed from the jurisdiction and reach of the Act. As an Australian citizen, he can no longer make a valid application for nor hold a visa. He is a part of the Australian community. He requires no visa to authorise his lawful stay in Australia.
It now follows by operation of law that the third named applicant is no longer within the jurisdiction of the Tribunal whose statutory remit in the present context is to conduct merit reviews under the Act with respect to visa refusal decisions of non-citizens.
The Tribunal therefore finds that it has no jurisdiction with respect to the third named applicant as the third named applicant has acquired Australian citizenship.
The remaining applicants, namely the first and second named applicants who still are non-citizens have a valid reviewable matter with respect to their visa refusals, appeared before the Tribunal on 30 May 2025 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue before the Tribunal is whether the first and second named 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.
For the following reasons, the Tribunal has concluded that the decision under review ought to be set aside and remitted for reconsideration on the basis that the first and second named applicants respectively satisfy the refugee criterion in ss 36(2)(a) and 36(2)(b)(i) of the Act.
The Tribunal has also concluded that it has no jurisdiction with respect to the third named applicant as the third named applicant has acquired Australian citizenship.
The Tribunal proceeds to give detailed reasons for its conclusions as follows.
COUNTRY OF NATIONALITY
The Tribunal finds the first and second named applicants’ identity and nationality are confirmed by their passports and recorded personal particulars.
The Tribunal finds that the first and second named applicants are citizens of India, which is also their receiving country for the purpose of their protection claims and assessments.
In the absence of any contrary evidence before it, the Tribunal finds the first and second named applicants do not have a right to reside in a country other than India, and therefore s 36(3) of the Act is not applicable.
THE PROTECTION VISA APPLICATION BEFORE THE DEPARTMENT
The Tribunal has before it the protection visa application form lodged by the first named applicant. The remaining applicants are listed and included within that application.
The first named applicant, in their protection visa application form states:
a.That the first named applicant and his family fear serious harm from [Mr A] and his family who have taken control of their inherited land; and
b.That [Mr A] along with others are threatening them with serious harm if they return to India. That his father and grandfather were also harmed.
THE MERITS REVIEW APPLICATION BEFORE THE TRIBUNAL
The Tribunal has examined the merits review application form and the supporting documents on the file.
The Tribunal notes that the applicants have not raised any new claims before the Tribunal as to their protection claims.
The applicants have consistently maintained the claim of fearing serious harm on account of their family land dispute in India.
FAVOURABLE FINDINGS OF THE DELEGATE BELOW
The Delegate in the decision below has made findings in favour of the first named applicant.
On page 4 of the Decision Record, the Delegate stated:
I accept that the applicant’s family have been involved in a land dispute with [Mr A] as detailed above.
It is not for the Tribunal in exercising its merits review jurisdiction to disturb finds in favour of the applicants’ case unless there are cogent reasons for doing so and putting the applicants on notice and providing an opportunity to respond. See also SZBEL v MIAC.[2]
[2] (2006) 228 CLR 152 at [36], [44], [47].
The Tribunal adopts the Delegate’s finding below that the first named applicant’s family have been involved in a land dispute with [Mr A].
The issue before the Tribunal is whether the first and second named applicant’s fear of serious harm arising from the family land dispute would not amount to a well-founded fear of persecution due to the exceptions found in relevant parts of the Act which set out the test for protection.
The Tribunal notes that the only extant issue for the Delegate was whether the applicants could relocate within India to avoid the harm claimed.
The Delegate stated at page 5 of the Decision Record:
There is no credible information before me to suggest the applicant will not be able to safely access Delhi. I therefore find the applicant can legally and safely access Delhi.
Therefore, a central issue before the Tribunal which the applicants need to satisfy the Tribunal on is relocation within India to avoid the harm feared.
HEARING BEFORE THE TRIBUNAL
The applicants gave their evidence as follows. This was done primarily by the first named applicant with the assistance of the second named applicant.
Both the first and second named applicants were born in Punjab, India.
The first named applicant is presently [Age] years old. The second named applicant is presently [Age] years old.
The applicants have two sons, both born in Australia. Their ages are presently [Age] years and [Age] years. Their [Age]-year-old son is an Australian citizen.
The first named applicant explained that [Mr B] is his grandfather. That [Mr C] is his father. That his father’s brother is [Mr D], his uncle.
The first named applicant’s father bought four acres of land from another party named [Mr A] in 2001.
At some point [Mr D] and [Mr A] were against each other but then joined forces to deprive [Mr B] and [Mr C] of their lands.
That his uncle [Mr D] and the other party [Mr A] are both seeking to harm him due to his land ownership claims. That [Mr D] and [Mr A] have joined forces and acting in concert jointly with a plan to harm him and his family.
The first named applicant inherited 16 acres of land through his father, and his father also purchased another 4 acres of land from [Mr A].
That in total, the first named applicant through inheritance from his father now owns [number] acres of land including his house.
However, both [Mr D] and [Mr A] have acted together and taken the [number] acres of land from him unlawfully and by force.
[Mr A] had been threatening the first named applicant since 2008. Even though he sold the 4 acres of land to the first named applicant’s father, he refused to hand over possession. Court proceedings were issued but have not resolved till to date.
In 2008 [Mr A] attacked the first named applicant, and he decided to flee to Australia. Whilst he was in Australia, in 2010 [Mr A] attacked his father, grandfather and uncle. His father passed away in 2015. Then allegedly his uncle made a false will from his grandfather giving his uncle the land. [Mr A] then joined forces with [Mr D]. This was part of the plan between his uncle [Mr D] and [Mr A] to take all the first applicant’s land.
The first named applicant was again threatened by [Mr A] in 2016.
The first named applicant’s mother was attacked by [Mr A] in 2018.
[Mr A] was also found guilty in a serious criminal assault case due to the land dispute.
[Mr A] also was sentenced to prison and served time in jail in India for the assault.
The Tribunal inquired about whether a civil land recovery case was made against [Mr A]. The first named applicant explained that a case was lodged in the [City 1] Court but was now transferred to [City 2] Court. However, the case has only been repeatedly adjourned and delayed without any formal outcome.
The first named applicant explained he is the only son in his side of the family. He only has [sisters] and his mother. [His sisters] have married and moved away. His mother lives and moves between his [sisters].
The first named applicant explained that he had no access to his land, the whole [number] acres was being occupied by [Mr D] and [Mr A].
In 2016 when he went to visit India, the village people told him he was in danger as [Mr A] was soon to be released from prison and he would seek to harm the first named applicant.
The first named applicant explained that he only went to India in 2015 for his father’s funeral and in 2016 as his mother was sick and in hospital.
That he did not return to India after [Mr A] was released from jail from 2017 onwards.
Importantly that he did not return for his grandfather’s funeral or for the wedding of his [sisters] in India as he was fearful of being harmed by [Mr A].
The Tribunal turned to discussing the possibility of the applicants relocating within India to avoid harm.
The Tribunal asked the applicants to explain why relocation to a place such as Delhi would not be possible for them.
The applicant explained their concerns about relocation as follows.
The applicants explained that they have two boys. These two boys are the male heirs to the land in dispute. The second named applicant as the mother would not inherit. That the two boys stood to inherit the claim to the [number] acres of land.
That [Mr A] and [Mr D] would want to harm the first named applicant and specifically harm their two boys as they are the male heirs to the [number] acres of land.
The applicants feared the first named applicant would be killed including their two boys as this would extinguish their right to any claim over the 20 [number] acres of land.
The applicants explained that leaving their elder son and returning to India would be emotionally harmful, especially to their elder son who would remain back in Australia.
The applicants also explained that their elder son suffers from asthma and has not been born or used to the air quality and pollution in India and such relocation would be unreasonable for them based upon their son’s health.
They explained that their elder son was very emotionally stressed at the thought of his whole family returning to India without him. That the elder son is now an Australian citizen.
The hearing ended with the Tribunal granting the applicants time to file further supporting material with respect to their elder son’s medical condition.
DOCUMENTS IN SUPPORT OF CLAIM
The applicants submitted the following documents in support of their claim.
Death certificate of the first named applicant’s father [Mr C].
Letters of support from the first named applicant’s mother and sister.
Birth Certificate of [Master E] (younger son of applicants) born on [Date].
First named applicant’s written statement of 11 December 2024.
[City 1] Court – criminal division judgment against [Mr A] (the claimed co-persecutor) dated [January 2017] stating a sentence of concurrency for a prison term of 2 years. Importantly the decision states that [in] December 2010 in assaulting [Mr B] (the first named applicant’s grandfather), the accused [Mr A] acted with intent to kill, see page 2 of the judgment. [Mr A] also on the same occasion assaulted [Mr C] (the first named applicant’s father). The decision states that [Mr A]’s criminal motive was due to the civil dispute between the parties over land matters.
[City 1] Court - civil division court document instituted [October] 2002 between [Mr C] (first named applicant’s father) and others including [Mr A] seeking injunctive restraints over the property. Notably the plaintiff was successful.
[City 1] Court - summons by the Plaintiff [Mr D] (the claimed co-persecutor) against [Ms F] and [the first named applicant] for a declaration that the plaintiff is co-owner of the property of [Mr B]. The court documents set out a claim to dispute the first named applicant’s grandfather’s last will and testament dated 15 May 2002 and another purported last will and testament dated 5 March 2016.
Various summons to attend addressed to the first named applicant from [City 1] Court suggesting multiple hearing dates and adjournments with respect to [Mr D]’s claim on the land and the contested and disputed wills of the first named applicant’s grandfather. Notably the various summons to attend are all addressed to his Australian address.
Translated Last Will of [Mr B] (first named applicant’s grandfather) dated 5 March 2016.
Translated Last Will of [Mr B] dated 15 May 2002.
Translated Newspaper Article from [News Source] of [August] 2022 titled: [Title]. Notably this newspaper article discussed the land dispute and [Mr D] claiming the land and forcefully removing the first named applicant’s mother.
Medical letter dated 2 June 2025 from [Dr G] of [Medical Centre] in Victoria that the third named applicant was treated for asthma in 2020. The letter suggests that the third named applicant has asthma and eczema.
Letter of referral by [Dr G] to [Hospital] dated 12 November 2017 for specialist referral with respect to the third named applicant’s asthma.
Ultrasound for the third named applicant suggesting small kidneys dated 22 September 2018.
FINDINGS ON THE EVIDENCE
The Tribunal makes the following findings of fact on the material and evidence before it.
The applicants are from Punjab, India.
The applicants are a family unit and all members of the same family unit.
The third named applicant has acquired Australian citizenship.
The third named applicant has documented medical conditions indicative of asthma, eczema and small kidneys. The Tribunal accepts these medical conditions would be chronic and require long term care and management to keep under control for a child of their age.
The first named applicant and his family are involved in a protracted and contested land dispute with [Mr A] and [Mr D].
100. There is also a contested last will dispute over the first named applicant’s grandfather’s estate also issued by [Mr D].
101. That [Mr D] has issued proceedings against the first named applicant and his family to claim the land and contest the last will of his grandfather.
102. [Mr A] served time in prison and has been released.
103. [Mr A] has previously committed serious violent assaults with weapons and has previously been found by a court in India to have the intention to kill the first named applicant’s family.
COUNTRY INFORMATION
104. The Tribunal refers to the DFAT Country Information for India which provides relevantly as follows.[3]
[3] DFAT Country Report for India 29 September 2023.
105. [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.
106. [3.138] Forms of possible family harassment can vary.
107. [5.4] The Constitution of India devolves responsibilities for police and public order to the states. According to sources, many Indians will choose not to contact the police, even if they are victims of crime. The 2019 Status of Policing in India Report found that two in five police officers surveyed said that people were hesitant to rely on them. The 2018 version of the same report found that only one in five of more than 15,000 people surveyed had recent contact with the police, and those that did were more likely to be male and wealthy. Those who contacted police may well have paid a bribe for the police to take action.
108. [5.9] The judiciary in India is separate from the legislature and executive. The Indian judicial system, like Australia’s, is inherited from British Common Law, and senior courts in particular are known for considered judgements in a similar style to Australian courts. Judgements may be written in English.
109. [5.13] Judicial action is unaffordable to most Indians. Even criminal defendants who are entitled to a lawyer often get poor representation, according to sources. Sources told DFAT that clients who are unable to pay lawyers for better representation are unlikely to receive good quality legal advice and some might refuse legal advice, seeing it as just another debt they cannot pay.
110. [5.19] There are no legal barriers to internal relocation and India has a long history of internal migration. In practice, relocation is mostly intra-state rather than interstate. This probably reflects the way in which languages and cultures tend to be divided in India along state-lines; people in the same state will speak the same language as the internal migrant. However, in the northern (not north-eastern) states generally all people speak Hindi, giving greater scope for internal migration.
111. [5.21] According to the World Bank, factors that may limit interstate relocation include non-portability of welfare entitlements (some social welfare programs are only available within a state or require an established residence), preferential treatment of former students from local educational institutions, and domicile requirements for state government jobs. A 2014 article from the Migration Policy Institute lists lack of education, access to financial services and the predominance of the agricultural sector as other factors.
112. The Tribunal has also taken into account the DFAT Thematic Report for the State of Punjab as follows.[4]
[4] DFAT Thematic Report for the State of Punjab – 7 December 2016.
113. [2.10] India as a whole experiences high rates of external migration, and has the highest remittances in the world. According to the World Bank, non-resident Indians remitted around $69 billion in 2015, around 12 per cent of total global remittances. Punjab has the second-highest rate of emigrants as a proportion of state population in India, with around 16.2 emigrants per 1,000 head of population. Many emigrants from Punjab reportedly travel for the purposes of study and economic opportunities. According to a paper from the Mumbai-based International Institute for Population Sciences, the bulk of migrants from India, including from Punjab, are males of prime working age who migrate for economic purposes and come from relatively wealthy households. More than one-third of total emigrants come from households in the top quintile in terms of monthly per capita consumer expenditure, a proxy for socio-economic status. Interlocutors in Punjab with whom DFAT spoke in preparation for this report unanimously cited employment and education opportunities as the overwhelming motivation for migration from Punjab to other parts of India and to other countries around the world, including Australia. DFAT agrees with this assessment.
114. [3.9] Many Sikhs have held high office in India, and particularly in Punjab. The Sikh-based Shiromani Akali Dal political party is currently the senior coalition partner in government in Punjab. The Chief Minister, Parkash Singh Badal, is Sikh (as is his son, the Deputy Chief Minister) and is currently serving his fifth term as Punjab’s Chief Minister. Former Prime Minister Manmohan Singh is a Sikh, and several Sikhs have held high positions in the central government.
115. [5.3] Progress on police reform has been slow. The Punjab Police Act 2007 has reportedly had little impact in changing police culture or implementing structural reforms. Secondary legislation in the form of a guide to policing has been developed but not yet introduced. Police service delivery has improved in some areas, including by the introduction of community policing programs. Some police investigative training has also been conducted, including training run by the UK, but overall capacity remains low, as does public confidence in the police.
116. [5.6] As in other parts of the country, the Punjab courts system is inefficient and heavily overburdened, and cases can take several years to be brought to trial and concluded. These inefficiencies tend to affect the poor disproportionately, as they are unable afford good quality counsel, bail or other legal costs, and can be held for long periods of time pending trial. As of October 2015, Punjab reportedly had one of the highest rates of ‘under trial’ prisoners.
117. [5.8] Punjab has a long history of migration, both within India and overseas. There are no significant legal or administrative barriers to internal migration, and many Punjabis (particularly young people) move to other parts of the country for education and employment opportunities. Similar to the situation for international migration, sources in Punjab unanimously told DFAT that employment and education opportunities are the overwhelming motivation for internal relocation from Punjab to other parts of India. There are regular domestic flights and trains in and out of Punjab. While road safety is a problem right across India, the roads connecting Punjab with major city centres such as New Delhi do not face a significant risk of security incidents. The neighbouring state of Haryana has experienced short periods of violence in 2016, including road blockades, arising from an agitation by the Jat community for affirmative action entitlements.
118. [5.9] DFAT assesses that internal relocation may be a viable option for people in Punjab seeking to avoid certain types of mistreatment. New Delhi in particular is a popular destination for many people from Punjab seeking improved economic opportunities and relatively greater social freedoms. However, DFAT also notes that attempts to relocate internally to avoid harm may not be successful. For example, there are reports of honour killings of people who have relocated internally to avoid the consequences of having relationships against the wishes of their families. In some cases the families have convinced them to return by pretending to accept the relationship, before performing the honour killing; in other cases the families have followed the couple to their new city of residence before attacking them. Nonetheless, DFAT assesses that such cases are rare, and a couple willing to relocate to avoid possible harm is typically able to do so.
GENERAL LEGAL PRINCIPLES IN PROTECTION ASSESSMENT
119. The Tribunal sets out the applicable legal principles in assessing protection claims.
120. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out, per MIEA v Guo & Anor.[5]
[5] (1997) 191 CLR 559 at 596.
121. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision maker to establish the relevant facts, per Yao-Jing Li v MIMA.[6]
[6] (1997) 74 FCR 275 at 288.
122. A decision maker is not required to make the applicant’s case for him or her, per Prasad v MIEA.[7]
[7] (1985) 6 FCR 155 at 169-70.
123. 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.[8]
[8] [2006] FCAFC 61 at [76].
124. The Tribunal is not required to accept uncritically any and all claims made by an applicant, per Randhawa v MIEA.[9]
[9] (1994) 124 ALR 265 at [278].
REFUGEE CRITERION ASSESSMENT
To satisfy the refugee criterion in the Act, the applicant must satisfy the Tribunal that they are a refugee pursuant to s 36(2)(a) of the Act. Relevantly this requires the applicant 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 along with the requirements set out in ss 5J(2)–(6) and ss 5K–5LA of the Act.
126. 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 per cent.[10]
[10] (1989) 169 CLR 379.
The reasons in s 5J(1)(a) must be the essential and significant reasons for the persecution per s 5J(4)(a), and per ss 5J(4)(b)–(c) the persecution must involve serious harm and systemic and discriminatory conduct.
128. Section 5J(5) of the Act defines instances of serious harm as including a threat to a person’s life or liberty, significant physical harassment of the person, significant physical ill-treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist and denial of capacity to earn a living of any kind, where the denial threatens the person’s capacity to subsist.
Particular social group analysis
129. The applicants fear serious harm arising from the first named applicant’s family dispute over land with his uncle [Mr D] and another party [Mr A].
130. The first named applicant is the only male heir to his late father’s land in a patriarchal social context in Punjab. He furthermore has only two sons, and both would be male descendants with inheritance rights in the same patriarchal social system.
131. This presents a unique set of facts, a sole male heir with two male heir children. They are being persecuted because of this unique set of characteristics.
132. The Tribunal accepts that this would bring the first named applicant into a defined unique particular social group.
133. The Tribunal accepts that it is the first named applicant’s membership of this particular social group that would be the essential and significant reason for the first named applicant suffering serious harm amounting to persecution contrary to s 5J(4) of the Act.
Fear of harm arising from family dispute over land
134. The decision of the [City 1] local court in the criminal case against [Mr A] suggests [Mr A] is open to using serious harm and has the ability to form an intention to kill whilst engaging in such serious harm through assaults with weapons.
135. The material facts in the criminal case decision state that the first named applicant’s father and grandfather both suffered serious harm and attempts to kill them from [Mr A].
136. The civil suits pending in the same court also suggest that there is a protracted and bitter land dispute involving the first named applicant and [Mr D].
137. The [News Source] article suggests that [Mr D] has taken over the family land and forcefully removed the first named applicant’s mother. The article also suggests that the first named applicant’s family has been struggling to get justice in the matter.
138. [Mr A] is now out from jail. He may harbour ill-will against the first named applicant on the basis of the land dispute and his prior incarceration and he would want to ensure he has no obstruction to his share of the land claim.
139. As noted, the first named applicant is the sole male heir and he has two male heir sons. This is a reasonable and logical reason for [Mr D] and [Mr A] to seriously harm or kill the first named applicant and his two sons so as to obtain the land.
140. The serious assaults mentioned in the prior criminal case, [Mr A]’s time in prison, the dispute over the two wills of his grandfather, the delayed civil cases, the removal of his mother from the family home, the news article, the court documents from India, his fear and lack of returning for important family events and him being a sole male heir with two male heir sons all combine to suggest a real chance of serious harm to the first named applicant.
141. The Delegate in the decision below also accepted that the first named applicant fears harm from his family land dispute.
142. The Tribunal accepts that there would be a real chance of serious harm to the first named applicant if he were to return to India on account of his family land dispute.
State protection analysis
143. Many of the civil complaints concerning the land dispute and the two conflicting last wills have yet to be determined. This is an inordinately lengthy period for these civil complaints to sit adjourned and undisposed.
144. The Tribunal is also concerned that the first named applicant has been issued summons to attend court on these matters, and there would be a real chance he could be seriously harmed if he returned to India to attend court. He has not returned for his grandfather’s funeral or for the wedding of his [sisters] since 2017 on account of fearing he would be harmed by [Mr A].
145. The local court criminal decision showed that the first named applicant’s father and grandfather suffered serious harm by the violent assault by [Mr A].
146. The local newspaper article states that the first named applicant’s mother has been forcefully and unlawfully removed from the land by [Mr D].
147. Past harm can be a relevant indicator of future harm. See Abebe v Commonwealth.[11]
[11] [1999] HCA 14 at [191]-[192].
148. DFAT country information suggests that local police would be susceptible to influence and bribery.
149. There is scant evidence to suggest that the courts or the police are in a position to effectively deal with the criminal threats by [Mr A] or the civil suits lodged by [Mr D]. This is reflected in the newspaper article and also in the length of time the cases have been in court without an outcome.
150. The Tribunal accepts that the first named applicant would not be able to obtain effective state protection per s 5J(2) of the Act.
Internal relocation within India analysis
151. The Delegate in the decision below found that the applicants would be able to relocate internally within India and avoid harm. This is now the central issue for determination on this review.
152. At the hearing the Tribunal discussed with the applicants whether they could relocate to other states within India and avoid the harm claimed. Relocation information from DFAT country material regarding moving to New Delhi was discussed with the applicants.
153. The Tribunal has also had regard to the ‘reasonable in the sense practicable’ test for relocation in SZATV v Minister for Immigration and Citizenship.[12]
[12] (2007) 233 CLR 18, 27 [24] (Hayne, Gummow and Crennan JJ).
154. Country information from the DFAT Thematic Report for the State of Punjab at [5.22] also suggests that persons in India are able to relocate.
155. The DFAT Thematic Report for the State of Punjab at [5.9] also suggested that New Delhi is a popular location for persons from Punjab to relocate to due to education and employment opportunities.
156. The issue is two sided. Both require consideration and determination.
157. On one view, the applicants are educated, young and there was no information to suggest they are suffering from any form of a disability which would prevent their relocation within India. The Tribunal accepts that the applicants could relocate to places such as New Delhi and find suitable employment and rental accommodation. Their social skills and education are portable.
158. However, the opposing viewpoint requires two further considerations.
159. Firstly, whether [Mr D] and [Mr A] would be able to locate the first named applicant to wherever he decides to internally relocate to.
160. If the first named applicant were in India, the court summons to attend the judicial process could be used to require the first named applicant to attend court where he could be seriously harmed by [Mr D] and [Mr A]. If he refused to attend, the summons process could be used to enter default judgment against him and deprive him of his land.
161. The first named applicant is also the sole male heir on his father and grandfather’s side of descent for the land claim. He and his two sons being alive are an impediment to [Mr D] and [Mr A] acquiring the land for themselves.
162. There is a high incentive to locate him and seriously harm him if he is in India.
163. Land is a valuable commodity, as shown in this matter with the criminal case and civil cases in [City 1] court and the news article about the family land dispute.
164. The [City 1] criminal court record in the matter shows that [Mr A] is capable of using weapons violently with an intention to kill and tracking down the male members of the first named applicant’s family such as his grandfather and father.
165. Notably as [Mr A] has already served time in jail for a violent assault with an intention to kill, there is nothing stopping him taking the risk to commit a serious violent assault or attempting to kill again. He is capable of this as shown in the criminal court decision from [City 1] court.
166. There is a real chance the first named applicant could be tracked and harmed by either or both of [Mr D] and [Mr A].
167. Secondly, the Tribunal has also had regard to the third named applicant who wishes to remain in Australia. His medical notes suggest he is prone to asthma and eczema.
168. For the applicants to leave him in Australia, and return to India although possible, it is difficult to accept that the applicants as parents can go about their daily lives in a new location such as New Delhi whilst having the constant worry about such a young child left back in Australia.
169. It is not so much that the third named applicant will remain back in Australia. This in not directly relevant to the ability of the parents to relocate within India. However, leaving behind a young child in Australia and one with medical conditions and care needs would place significant emotional and financial burdens on the parents that would make any attempt at relocating unreasonable. The Act does not limit considerations to matters only within the country.
170. It is difficult to accept that they would look for employment, work and attend to their daily lives in New Delhi or elsewhere in India and constantly be worrying about their young child and his care, residence, schooling and welfare needs in Australia. Some relevant consideration must be given to this mental and financial effect on the applicants’ ability to reasonably relocate.
171. There was no evidence to suggest that the parents have the financial ability and resources to ensure their child was well taken of and provided for whilst they departed and left Australia.
172. The ability and incentive of the persecutors to locate and harm the first named applicant and the third named applicant’s relevant considerations outweigh the applicants’ ability to relocate within India. Such relocation would become impracticable on the facts and cannot be sustained.
173. The Tribunal refers to SZATV v Minister for Immigration and Citizenship[13] and accepts that it would not be reasonable in the sense practicable to require the applicants to relocate within India to avoid the real chance of serious harm.
[13] (2007) 233 CLR 18, 27 [24] (Hayne, Gummow and Crennan JJ).
Conclusion on refugee criterion
174. On the material before it and as set out above, the Tribunal is satisfied that the first named applicant fears being persecuted on account of their family land dispute and there is a real chance that if the first named applicant is returned to India either now or in the reasonably foreseeable future, the first named applicant would be persecuted and seriously harmed, and the real chance of persecution relates to all areas of India.
175. Firstly, for the reasons given above, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
176. As the Tribunal has found in favour of the first named applicant under s 36(2)(a) of the Act, the Tribunal has not gone on to consider any other protection criteria.
177. Secondly, it follows consequentially that the second named applicant as the wife and member of the same family unit as the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(b)(i) of the Act.
178. Thirdly, as the third named applicant has acquired Australian citizenship, the Tribunal finds that it has no jurisdiction with respect to the third named applicant.
DECISION
179. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the following orders:
a.The first named applicant satisfies s 36(2)(a) of the Migration Act; and
b.The second named applicant satisfies s 36(2)(b)(i) of the Migration Act on the basis of being a member of the same family unit as the first named applicant; and
c.The Tribunal has no jurisdiction with respect to the third named applicant due to the third named applicant acquiring Australian citizenship.
Date of hearing: 30 May 2025
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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