1929928 (Refugee)
[2025] ARTA 2202
•4 August 2025
1929928 (REFUGEE) [2025] ARTA 2202 (4 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 1929928
Tribunal:General Member D. Gordon
Date:4 August 2025
Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)that the [first named applicant] meets s 36(2)(a) of the Migration Act; and
(ii)that the [second named applicant] satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 04 August 2025 at 11:16am
CATCHWORDS
REFUGEE – protection visa – India – imputed political opinion – family affiliation with the Khalistan movement – police corruption – alleged involvement in criminal matters – poisoning of the applicant’s father– internal relocation – third country protection in Nepal – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v Commonwealth [1999] HCA 14
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 124 ALR 265
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
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 27 September 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of India, applied for the visas on 8 December 2016.
The delegate refused to grant the protection visa 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 a person 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.
The applicants were aggrieved by the decision of the delegate and sought merits review before the Tribunal.
The applicants appeared before the Tribunal on 25 July 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 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.
THE PROTECTION VISA APPLICATION BEFORE THE DEPARTMENT
The Tribunal has before it the protection visa application form lodged by the first named applicant. The second named applicant is listed and included within that application.
The first named applicant, in their protection visa application form states:
a.That the first named applicant fears serious harm from the local police on account of their framing cases against him alleging his involvement in criminal matters including his and his late father’s political affiliations.
b.The first applicant’s harassment by the local police included allegations of him being a terrorist and of him having possession of firearms none of which were established by a court.
c.That the local police have engaged in various arrests and cases against him, and despite him being found not guilty and acquitted, the local police continue to harass him and seek to further frame up charges against him.
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 continual serious harassment from the local police in India.
HEARING BEFORE THE TRIBUNAL
The applicants gave their evidence as follows. This was done primarily by the second named applicant due to her English-speaking proficiency with the assistance of the first named applicant and the interpreter.
The applicants stated they were both born in Punjab, India.
The first named applicant is [age] years, and the second named applicant is [age] years of age as at the time of the hearing.
The applicants have two daughters, one in India and one here in Australia.
Their daughter [name] is presently [age] years of age, she is born in India and presently in India.
Their daughter [name] is [age] years of age, born in Australia and presently here with the applicants.
The first named applicant’s mother is alive, but his father has passed away. He has [specified siblings]. [One sibling] is in [Country 1] and [details deleted].
The second named applicant’s parents are not alive. She has [specified siblings]. [One] is in [Country 2] and [details deleted].
The applicants came to Australia [in] August 2016.
The first named applicant has been a farmer since completing high school.
The second named applicant has been working as [an occupation 1] since 2018.
The Tribunal raised with the applicants that the delegate below had concerns which the Tribunal wished to discuss and understand.
The Tribunal explained that the delegate was concerned the FIR (First Incident Report) was from 2011, but they left India in 2016. The applicants explained that the first named applicant went to [Country 3] and could not get work or refugee status grounds in 2012. They attempted to look for other options to leave India. They were married in 2009, and their first daughter was born in [year], and 2011 was when the first police case was filed against the first named applicant, and they wanted to leave. Even when the first named applicant was not home, the police would come and harass the second named applicant and the other women at their home.
The applicants explained that despite the various FIRs, the first named applicant was never found guilty. That the police could not prove the FIR matters in court, and he was acquitted. That the police kept trying to raise cases against him.
The Tribunal questioned why these details of the harassment, the FIRs and their court acquittals were not properly explained to the delegate through the request for further information correspondence sent to them. The applicants explained they never received any such request from the delegate and only received the refusal decision.
The first named applicant explained that he was taken in for questioning by the police and showed a [body] as evidence of where he was assaulted. This scar was from 2011 when the police pushed him towards a wall and the glass cut him.
The applicants explained they used a third party to assist with their protection visa application and were not aware of the details and lack of information that was missing from the written application.
The Tribunal asked why the applicants have waited so close to the hearing to provide all the relevant FIR and court documents. The applicants explained they thought they would state their case during the hearing and discuss these documents during the hearing.
The Tribunal asked why they could not obtain a medical report for the scar on the first named applicant’s [body]. The applicants explained that doctors in Punjab did not give medical reports for injuries in police custody due to bribery and corruption.
The Tribunal sought clarification on the Acquittal Judgment dated [in] July 2007. This concerned a 2004 robbery during the first named applicant’s previous marriage where the local police allege that he committed serious violent crimes against his first wife. However, he said witnesses gave assistive evidence of him helping his first wife and taking his first wife to hospital and the court acquitted him. The police were only trying to harass him.
The Tribunal sought clarification on FIR [A] dated [in] December 2011. This concerned the police taking the first named applicant to another town and attempting to set up another case against him for which he was acquitted due to a duplication of charges.
The Tribunal sought clarification on the Acquittal Judgment dated [in] June 2016. The first named applicant was acquitted but the police brought him into another matter.
The Tribunal asked about the significance of the first named applicant’s father’s death certificate from [a date in] April 1998. The first named applicant explained that his father passed away at the young age of [age] years as he was poisoned and killed due to his political affiliations to the Khalistan movement.
That the FIR [B] from [July] 2014 was where the applicants had enough of the police harassing them. They were drained emotionally and had lost everything. They sold their land, and life was becoming difficult and were always worried about the first named applicant being taken in for questioning and jail. They were worried the police would set up a framed killing.
The Tribunal asked how they managed to leave India if the police was so intent on framing the first applicant. The applicants explained that they hid and quickly escaped, they left so quickly that they did not even have time to arrange a passport for their daughter and that they had no choice but to leave their daughter and urgently depart India. Their daughter in India stays with relatives and whenever the police did come, they would be told that the applicants were not around.
The Tribunal asked how the first named applicant came to the initial attention of the local police. The first named applicant explained that initially his father had anti-government political views and supported the Khalistan movement, and this alerted the police to his family. His father was killed by poisoning at the age of [age]. That when his father died, the local police began to focus on him.
The Tribunal asked about the matter of the first named applicant being alleged to having possession of illegal firearms. The first named applicant explained that the police framed him and that he was accused of the illegal firearms in FIR nos. [A] and [B].
That in in 2016 when the legal matters were finalised, they were trying get back on their feet when the police came again to their house and made a false claim that the first named applicant stole [a product] but the evidence on their property could not prove this and they paid a bribe to escape further harassment.
The applicants explained again that in their rush to get out of India, they left their daughter back in India and this has been a terrible burden on them, and they miss their daughter as they have never returned and fear returning.
The Tribunal discussed whether the applicants could relocate to a larger city such as Delhi or Mumbai and if not, whether they could relocate to Nepal. The applicants stated that the police would try and locate them to frame the first named applicant and that they would not be safe in Nepal.
In summary, the applicants stated they feared the police harassing them and lodging framed cases against the first named applicant and fear for the lives of their two daughters.
DOCUMENTS IN SUPPORT OF CLAIM
The applicants submitted the following documents in support of their claim.
Acquittal Judgment of [July] 2007.The first accused is the first named applicant. He was acquitted relating to the alleged robbery and serious violent crimes against his first wife.
Acquittal Judgment [in] June 2016. The third accused is the first named applicant, and he was previously acquitted. The remaining accused person was also acquitted.
FIR [A] dated [in] December 2011. This concerns allegations of highway robbery and possession of a revolver firearm. It names the first named applicant.
FIR [B] dated from [July] 2014. This concerns alleged unlawful possession of various firearms and ammunitions. It names the first named applicant.
FIR [C] dated from [September] 2004 with respect to the alleged robbery and serious violent crimes committed on the first named applicant’s ex-wife.
The first applicant’s father’s death certificate dated [in] April 1998.
COUNTRY INFORMATION
The Tribunal refers to the DFAT Country Information for India which provides relevantly as follows.[1]
[1] DFAT Country Report for India 29 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.
[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.
[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.
[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.
[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.
[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.
The Tribunal has also taken into account the DFAT Thematic Report for the State of Punjab as follows.[2]
[2] DFAT Thematic Report for the State of Punjab – 7 December 2016.
[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.
[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.
[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.
[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.
[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.
[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.
The following information is relevant with respect to the Treaty Of Peace And Friendship Between The Government Of India And The Government Of Nepal.[3]
[3] DFAT Report for Nepal.
[5.22] There is a long history of free and unregulated movement of people between India and Nepal, which dates back to the peace treaty signed after the 1814 Anglo-Nepal war. India and Nepal agreed their Treaty of Peace and Friendship in 1950 (the Treaty), which remains in force.
ANALYSIS
The Tribunal has considered the applicants explanation at their lack of response to the delegate and accepts that either they were not aware, or they did not receive the request for more information. It is unlikely they would ignore such a request and opportunity when they were in possession of various official Indian local police FIR and judicially stamped Indian court decisions that positively assist their claim for protection.
On the one hand, consideration is given to the ordinary criminal process and that these FIRs and court cases are simply the orderly investigation and prosecution of matters which formed a reasonable evidential basis of involving the first named applicant, and that the local police were simply engaging in their duty to detect, investigate and lay charges.
On the other hand, consideration is given to the police not being successful on three FIRs and two resultant court acquittals. A reading of the court decisions shows significant failures of evidence and procedure.
The first named applicant also claims his late father passed away at the age of [age] from poisoning and was the initial target of the police due to his anti-government political beliefs.
Added to that is the applicants leaving their only daughter at that time and departing to Australia. Their daughter is presently [age] years of age and would have been approximately [age range] years of age at the time of their departure. It is difficult to comprehend parents leaving a child of such tender age when the child could have been brought to Australia with them.
Neither have the applicants returned to India or made efforts during their initial stay in Australia to go back or arrange to bring their daughter.
The totality of these matters suggests the applicants’ claim is credible.
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 have two young daughters, one in Punjab and one here in Australia.
The applicants are a family unit and all members of the same family unit.
The Tribunal accepts that in the urgency of escaping further police harassment, the applicants left their daughter behind in India as there was not enough time to await obtaining her passport and arranging to bring her with them to Australia.
The first named applicant has been the subject of a series of FIR cases, however the material placed before the Tribunal does not show that he has been convicted of any of these matters.
The first named applicant has been the subject of two court decisions, one alleging serious violent crime to have been committed against his first wife and another alleging robbery and firearms, however the material placed before the Tribunal does not show that he has been convicted of any of these matters. He was acquitted in both judicial cases.
Country information from India contained in the DFAT reports do suggest corruption and bribery within the local police force.
The Tribunal accepts as a norm that all persons ought to be free from arbitrary arrest, detention and malicious prosecution by state organs. Personal liberty and freedom are sacrosanct.
The Tribunal accepts on the materials placed before it and country information, namely the three FIR cases and the two acquittal decisions that the first named applicant has been subjected to a pattern of police investigation and charges which have not been proven and reasonably show a tendency of seeking to harass and intimidate and frame up cases against the first named applicant which amounts to the first named applicant facing a real chance of serious harm.
GENERAL LEGAL PRINCIPLES IN PROTECTION ASSESSMENT
The Tribunal sets out the applicable legal principles in assessing protection claims.
Section 5AAA of the Act states that it is the responsibility of an applicant to specify all particulars of their claim and to provide sufficient evidence to establish their claim.
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.[4]
[4] (1997) 191 CLR 559 at 596.
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.[5]
[5] (1997) 74 FCR 275 at 288.
A decision maker is not required to make the applicant’s case for him or her, per Prasad v MIEA.[6]
[6] (1985) 6 FCR 155 at 169-70.
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].
100. The Tribunal is not required to accept uncritically any and all claims made by an applicant, per Randhawa v MIEA.[8]
[8] (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.
102. 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.[9]
[9] (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.
104. 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.
Refugee status nexus analysis
105. The first named applicant states he has been targeted by the local police since his late father’s and his anti-government political views including supporting the Khalistan movement.
106. The Tribunal accepts that this political nexus would bring the first named applicant into the political opinion refugee criteria by virtue of an actual and imputed political opinion from his late father transferred to him and his own personal political beliefs angering the local police.
Fear of harm arising from police harassment
107. The police have lodged three FIRs against the first named applicant which did not result in any criminal liability on the first named applicant.
108. Furthermore, two judicial cases were taken up against the first named applicant which did not result in any criminal liability on the first named applicant. He was formally acquitted on both matters.
109. The judicial cases exposed a lack of evidential proof to the criminal standard and the courts were critical of failures in evidence and procedure by the local police.
110. The applicants say they left in such a hurry they could not arrange for a passport for their daughter. The Tribunal accepts this. It is unlikely that the applicants would leave their only child at the time and depart unless seriously harmful events were unfolding before them.
111. Consideration is also to be given to the local police being inflamed by their repeated failures to convict the first named applicant and they would seek to exact revenge upon him if he were to return.
112. Past harm can be a relevant indicator of future harm. See Abebe v Commonwealth.[10]
[10] [1999] HCA 14 at [191]-[192].
113. 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 the local police seriously harassing him by setting up investigations, home visits, arbitrary arrests, charges and court cases against him that on past evidence were not proven and he was acquitted.
State protection analysis
114. DFAT country information suggests that local police would be susceptible to influence and bribery.
115. The harm feared is directed to the local police as the claimed persecutors. State protection is not possible as it is the state apparatus that is feared.
116. 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
117. 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 Mumbai and New Delhi was discussed with the applicants.
118. The Tribunal has also had regard to the ‘reasonable in the sense practicable’ test for relocation in SZATV v Minister for Immigration and Citizenship.[11]
[11] (2007) 233 CLR 18, 27 [24] (Hayne, Gummow and Crennan JJ).
119. 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.
120. 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.
121. The facts show a sustained effort by the local police to harass the first named applicant by taking up cases against him that cannot be proven in court. The efforts made by the local police show that they would be willing to go to great lengths to locate and harm the first named applicant, especially if he was nearby and within reach.
122. The ability and incentive of the local police to locate and harm the first named applicant outweigh the applicants’ ability to relocate within India. Such relocation would become impracticable on the facts and cannot be sustained.
123. The Tribunal 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 by the local police.
Third country - Nepal relocation analysis
124. Nepal has a treaty with India referred to as the Treaty Of Peace And Friendship Between The Government Of India And The Government Of Nepal entered into on 31 July 1950 (the treaty).
125. The full text of the treaty is available at the website for the Government of India, Ministry of External Affairs and a link is produced in the footnote here.[12]
[12]
126. Relevantly, Articles 6 and 7 of the treaty permit the entry of nationals from each country into the other and provide for enjoyment of reciprocal rights including residence and work.
127. This means nationals of India such as the applicants have a prima facie right to enter Nepal.
128. The Tribunal notes that the applicants do not speak Nepali.
129. The first named applicant has been the repeated target of FIR cases and two cases in court.
130. There can be a reasonable apprehension the local police could seek to locate him in Nepal.
131. The Tribunal also factors that the applicants have two young girls. One girl is [age range]. One is [age]. Moving to a foreign country such as Nepal where young girls may not be safe invite considerations of whether these two young girls would be safe if moved to Nepal with the applicants and whether such a move is practicable for the applicants as parents.
132. The DFAT report for Nepal provides as follows.[13]
[13] DFAT country report for Nepal.
133. [3.78] Gender-based violence (GBV) is a significant problem in Nepal. Research suggests around one in four Nepali women experience GBV in their lifetime. According to the UN, violence disproportionately affects women and girls in Nepal who face multiple forms of discrimination based on disability, caste or ethnicity, limiting their access to protection, treatment, and justice. Societal attitudes towards the acceptability of domestic violence vary by individual, family and community, and people with higher levels of education or socioeconomic status are not necessarily less tolerant of domestic violence.
134. 3.92 DFAT assesses that women in Nepal face a moderate risk of official and societal discrimination in the form of discriminatory laws and cultural practices. DFAT assesses that women face a moderate risk of GBV. DFAT assesses that widows, poor women, and women from lower-caste backgrounds, especially Dalits, face higher risks. State protection exists, but its effectiveness varies.
135. The Tribunal finds that the two young girls would be exposed to risks of harm in Nepal. This is a relevant consideration for the Tribunal in assessing relocation for the applicants.
136. It would not be practicable and furthermore it would place their two young girls at risk of harm to have the applicants relocate to Nepal. Country information for Nepal suggests that young girls can be exposed to gender-based violence.
137. In these circumstances, it would not be reasonable in the sense practicable to expect the applicants to relocate to Nepal to avoid the harms feared.
Conclusion on refugee criterion
138. 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 local police harassment 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 by the local police, and the real chance of persecution relates to all areas of India. The first named applicant’s fears of persecution are well-founded and objectively supported.
139. The Tribunal is satisfied that the first named applicant has a well-founded fear of persecution, in that there is a real chance that, if the first named applicant returns to India, the first named applicant would be persecuted on account of his political opinion per s 36(2)(a) of the Act.
140. It is through this political opinion that the first named applicant has come to the adverse attention of the local police and has been subjected to serious harassment through a past serious of unproven cases lodged against him, the pattern, content and frequency of which show a real chance of similar future harm to him if he returns to India.
141. Bearing in mind that the persecutors are the local police, and the applicants have two young daughters, relocation internally and in a third country is not reasonable in the sense practicable.
Protection findings
142. 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.
143. 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.
144. 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.
DECISION
145. The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that:
·(i) the [first named applicant] meets s 36(2)(a) of the Migration Act; and
·(ii) that the [second named applicant] satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Date of hearing: 25 July 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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
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(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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