1930026 (Refugee) - [2025] ARTA 1823

1930026 (REFUGEE) [2025] ARTA 1823 (16 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 1930026
Tribunal:General Member D. Gordon
Date:16 July 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 16 July 2025 at 4:11pm
CATCHWORDS
REFUGEE – protection visa – India – fear of harm from drug group/gang – approached to become courier – harassed, assaulted and threatened – police inaction and corruption – vague claims and evidence and no supporting statements or documentation – consent to decision without hearing – country information – drug use prevalence, and police capacity and reputation low – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
Migration Regulations 1994 (Cth), Schedule 2
CASES
ADJ20 v MICMSMA [2021] FCCA 2024
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
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
Yao-Jing Li v MIMA (1997) 74 FCR 275
2010120 (Refugee) [2025] ARTA 550
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 26 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of India, applied for the visa on 31 January 2018.
The delegate refused to grant the 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 applicant had a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant 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 applicant was 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 applicant being removed from Australia to their country of nationality, there is a real risk that the applicant will suffer significant harm.
APPLICANT’S REQUEST FOR A DECISION WITHOUT A HEARING
Initially this matter was set down for a hearing to be held on 2 July 2025 at 9.30am.
On 28 June 2025, the applicant wrote to the Tribunal advising that they elected not to attend their review hearing and requested that the Tribunal decide their case without holding a hearing.
Accordingly, Tribunal is required to determine whether a hearing can be dispensed with.
Section 106(3) of the Administrative Review Tribunal Act 2024 (Cth) relevantly permits the Tribunal to decide a case without holding a hearing where the only parties to the proceeding are the review applicant and a non-participating party, the applicant requests the Tribunal to make a decision without holding a hearing, and it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.
The Tribunal accepts that the applicant has requested a decision without a hearing and upon perusal of the review application materials is satisfied that the issues for determination can be adequately determined in the absence of the parties.
The Tribunal is also mindful of not insisting on attendance at a hearing and summarily dismissing the matter in the case of non-attendance as this would deprive the applicant of a substantive decision on the merits which the applicant has not agreed to forgo and detracts from the Tribunal’s core statutory function of conducting a review on the merits.[1]
[1] BXFHJ v Minister of Immigration and Multicultural Affairs 2010120 (Refugee) [2025] ARTA 550 (13 May 2025) at [66].
The Tribunal is satisfied it can decide the matter without holding a hearing and proceeds to do so.
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 applicant is a person 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 should be affirmed.
COUNTRY OF NATIONALITY
The Tribunal finds the applicant’s identity and nationality are confirmed by their passport and recorded personal particulars.
The Tribunal finds that the applicant is a citizen 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 applicant does 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 applicant.
The applicant, in their protection visa application form states they would be persecuted if returned to India as he would be targeted by the drug mafia in their village for his refusal to work for them. He fears being harmed, tortured, killed or being forced to work for the drug mafia including using and selling drugs for them.
THE MERITS REVIEW APPLICATION BEFORE THE TRIBUNAL
The Tribunal has examined the applicant’s merits review application and the supporting documents on the file.
These materials did not contain new claims but added that he was asked to be a courier.
The applicant filed written submissions which are addressed below.
COUNTRY INFORMATION
The Tribunal refers to relevant parts of the DFAT Country Information for India which provides relevantly as follows.[2]
[2] 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.
[5.19] 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.
[5.22] In general, internal relocation is a practical option for most people seeking escape from violence related to marriage choices but this would be limited by the factors discussed above.
The DFAT Thematic Report for Punjab provides as follows.[3]
[3] DFAT Thematic Report for Punjab – 7 December 2016.
[2.18] Illicit drug use is a major issue in Punjab, reportedly more so than in most other parts of the country. Regular use of small amounts of unprocessed opium is a common traditional practice in Punjab, particularly among the state’s rural population, and is akin to the use of coffee in western society. Over the last couple of decades, however, more processed narcotics such as heroin and methamphetamine are being used, and addiction has risen. For example, at one government-run de-addiction centre in Punjab, nearly 60 per cent of the centre’s clients are users of opiates, including around 36 per cent heroin users, 11 per cent users of unprocessed opium and 10 per cent users of prescription opiates. Ninety-nine per cent of this centre’s patients are male and only 1 per cent female. Drug addiction experts in Punjab told DFAT that women are somewhat less likely to be addicts (although reliable data on female addiction rates are not available), but also that women are far less likely to seek (or to be able to seek) help.
[2.19] Drugs are readily available in Punjab, with opiates typically sourced from Afghanistan via Pakistan. Several credible interlocutors suggested that corruption, including within the border and Punjab police forces, facilitates the availability of drugs across the state. Other interlocutors suggested that connections with the drug trade extend to senior political figures, including in the current government. While this is possible, DFAT has no independent evidence that this is the case. Widespread drug use is an increasingly sensitive political issue in Punjab. In May 2016, the Central Board of Film Certification refused to clear a film, Udta Punjab, which depicts the narcotics problem in the state, unless references to Punjab, elections and political parties were deleted. The film was ultimately cleared for release by the Bombay High Court, but saw an aggressive campaign by the government in Punjab against what it viewed as a defamatory representation of the problem. The government runs five de-addiction centres, and several other rehabilitation facilities, in addition to the large number of privately-run facilities that are available. Drug use is endemic in the prison system, where there is easy access to drugs and few treatment facilities available.
[5.1] The Punjab police force is a state-run force with around 76,000 personnel. Multiple credible sources—including from civil society representatives, journalists, lawyers and members of the diplomatic corps—told DFAT that Punjabi police capacity is very low, particularly in investigative capacity, and the police have a poor reputation, with high levels of corruption. These sources reported that police are involved in the drug trade, as well as extortion of suspected LGBTI people and incidents of extra-judicial killings, known as ‘fake encounters’ (see ‘Arbitrary Deprivation of Life’, above). There are also perceptions of political interference in policing, with reports of large scale movement of senior officers following changes in government.
The Tribunal turns to assessing the claim for protection.
APPLICABLE LEGAL PRINCIPLES IN PROTECTION ASSESSMENT
The Tribunal sets out the applicable legal principles in assessing protection claims.
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].
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].
APPLICANT’S WRITTEN SUBMISSIONS
Along with their request for a decision without a hearing, the applicant submitted written submissions for the Tribunal to consider. These were not dated but were sent by email on 28 June 2025.
The Tribunal has reviewed the applicant’s written submissions as follows.
The applicant explains that he came to Australia on 22 November 2017 on a subclass 408 visa. He decided to apply for a protection visa so that he would not have to return to India where he feared threats from the drug mafia groups in his area.
The Tribunal notes that the applicant uses the term ‘group’ and ‘gang’ interchangeably and nothing adverse turns on this. The Tribunal shall use the term ‘group’ for consistency.
That in his village in Punjab, drug smuggling and criminal activities were very common and he was approached by a drug mafia group to become a courier. The applicant refused the drug mafia group’s offer and attempted to avoid them.
The drug mafia group did not accept his refusal to be a courier and began targeting and harassing the applicant, including on an occasion assaulting him where he was also threatened if he further refused their offer, he would be killed.
The applicant states he went to the local police, but no action was taken. That everyone knows the police are either afraid or connected to the drug mafia. The applicant had no one to trust or any support so he decided to leave India.
The applicant further explains his lack of providing further information to the Delegate at the Department, notably that he had recently arrived in Australia, did not have proper legal help, and his English was not strong. He was trying to survive in a new country without support.
The applicant explains his fears including that the drug mafia group still control his area and if he returns, he will be harmed, tortured or killed. He cannot relocate within India as the drug mafia group have connections in other cities and would be able to locate him. He cannot rely on state protection due to the lack of assistance from the police and legal system.
The applicant’s written submissions advance their claim for protection as stated in their protection visa application before the Department.
The Tribunal understands the applicant’s fears to include being harmed, tortured, killed, being forced into using drugs, being forced into selling drugs including working for the drug mafia, and being forced into becoming a drug courier.
The applicant made a statement in his written submissions that was contradictory. He stated in his written submissions that: “I am now prepared to fully explain my experience at the hearing and provide any further evidence needed”. The contradiction here is this statement is made as part of his election not to attend a hearing and request for a decision without a hearing and furthermore the applicant provides no further evidence as part of his request for a decision without holding a hearing.
It cannot be that the applicant is unaware of the importance of providing further information or evidence as he dealt with a similar request from the Delegate below during his protection visa application assessment before the Department. This is discussed further below.
The Tribunal has had regard to these written submissions which are further analysed below.
CREDIBILITY OF CLAIM ANALYSIS
Upon review of the matter and material before the Tribunal, the Tribunal is concerned about the credibility of the applicant’s claim.
These credibility concerns are discussed and analysed below.
The Tribunal before embarking on a credibility assessment also acknowledges that credibility findings are serious and should not be made lightly and consideration ought to be given of the difficulties faced by asylum-seekers in their personal circumstances, journey and ability to gather evidence.
Addressing the decision below
The applicant addresses through his written submissions his lack of response to the Delegate’s request for more information. The applicant submits: “At that time, I did not have proper legal help, and I didn’t understand the importance of that letter or how to respond to it. My English was not strong, and I was trying to survive in a new country without family, money, or support. I was scared and confused. I now realise that I should have explained everything better, and I am truly sorry if my earlier application seemed incomplete. I was never trying to hide anything or mislead anyone – I was simply struggling.”

The applicant’s protection visa application states that he has completed high school. His written submissions also state that: “That is when I made the difficult decision to leave India.” This suggests to the Tribunal that the applicant formed the intention to seek protection whilst in India.
Importantly the Delegate’s request for further information of 8 July 2019 makes it clear that the failure to reply could result in a decision being made after the time for response had expired. This is not crouched in complex legal language but plain and simple language.
Importantly, on 6 August 2019, the applicant wrote back to the Delegate as follows:
Dear sir or madam
I am replying to your request for more information.
Please be advised that I am trying to obtain information and documents from India to support my claim for protection in Australia.
At the moment, it is taking a bit longer to gather the information and obtain relevant documents. Please allow me two more weeks to submit my reply to department's s56 request for more information.
Kind regards
[The applicant]
The applicant’s own email of 6 August 2019 clearly shows he knew the importance of the Delegate’s request for further information and that he sought further time to obtain and supply information and documents from India to support his protection visa application.
Notably the applicant was granted a further two-week extension by the Delegate, however no further information or evidence was provided by the applicant.
The Tribunal finds that the applicant was well-aware of the concept of seeking protection and he had the education level to properly answer and provide further information and evidence with respect to his protection visa application and further requests from the Delegate. This is shown by the applicant’s own email of 6 August 2019 acknowledging the request for more information and his request for further time to supply evidence and information.
The applicant claims he did not have proper legal help when dealing with the Delegate, however there is no information before the Tribunal to suggest he has taken legal help now or engaged legal representation. This is not essential as an applicant may attend to their matters personally, however it is a matter to note as the applicant does raise this.
The Tribunal does not accept that the applicant’s submissions before the Tribunal concerning his lack of response to the Delegate’s request for more information.
Furthermore, the applicant’s request for more time to supply information and evidence coupled with the lack of any such material being submitted in the further time granted suggest that no such further information or evidence existed as the claim was not credible.
Now at the Tribunal stage of the matter, the applicant has had over 5 years to supply evidence or information but has not done so. This further suggests to the Tribunal that no such information or evidence exists as the claim is not credible.
Lack of detail in protection claim
The Tribunal refers to the written protection claim in the protection visa application and as further stated in the written submissions provided to the Tribunal.
The applicant has only provided generic statements as to his claim that he would be targeted by the drug mafia group in their village for his refusal to work and be their courier.
The applicant does not say who this drug mafia group is. No name or other description is given despite the applicant claiming that the drug mafia group is well known. No approximation of time or year is given as to when the harassment or offer to be a courier or work began. The applicant in his submissions says: “One such group approached me” which indicates a particular identifiable group or people. Yet the applicant does not provide any information as to who this group or who these people are.
The applicant in his submissions says the drug mafia: “asked me to become a courier to transport drugs”. However, the applicant does not describe what types of drugs, or courier to where or any other details of such a request.
The applicant says in his submissions that: “I was physically attacked by two men associated with the group.” However, the applicant does not describe or provide more information such as how he was beaten, where he was beaten, whether there were any witnesses, what part of his body was beaten or suffered injury, or if any medical treatment was sought or provided. Notably the applicant does not say in his initial written protection visa application that it was two men who beat him. However, over 5 years later, at the Tribunal the applicant now says it was two men who beat him but provides no further information or details.
The Tribunal does not accept that a drug mafia group approached the applicant to work or be their courier or that upon his refusal, the applicant was harassed and beaten by two men.
Lack of corroboration or support of claim
The Tribunal reminds itself that corroboration or support of a claim is not essential. However, the claims and contextual facts may suggest of corroboration or support.
The applicant claims that the drug mafia group in his local village is well-known. He says that the drug activities “were very common” and that “everyone in the area knows” of the police involvement.
Whilst accepting that neighbours and friends and other people in his village would be hesitant to speak out against or give evidence about a drug mafia group, this does not adequately explain the lack of any supporting evidence from his parents and siblings.
The applicant’s protection visa application confirms the applicant has three adult siblings and both parents back home.
The applicant also confirms in his protection visa application he does communicate with his parents and adult siblings.
Notably, the applicant in his written submission says “My family is also scared...” which indicates to the Tribunal that the applicant is stating that his family has knowledge about the applicant’s claims and could have given evidence.
The Tribunal accepts that his parents and siblings would fear openly speaking out or protecting him against a drug group mafia. However, this does not explain why confidential protected evidence could not be provided to the Tribunal for the sole and limited purpose of this review.
The applicant provides no supporting evidence whether by way of a sworn statements or making available his family to give evidence through audio-visual means to corroborate or support his claim.
The lack of corroboration or support from his three adult siblings and parents suggest to the Tribunal that the applicant’s claim is not credible.
Evidential concerns
The applicant says he left India in 2017. He is born in [Year]. His age would have been approximately [Age] years.
The applicant says in his written submissions: “These mafia groups targeted young men like me, especially those who were active in the local music scene or often performed at weddings and parties.”
He gives no account of any threat or harassment or how he managed to avoid or deal with the drug mafia group for the balance of his prior youth in India. For example, from his late teens till he decided to leave India. This is a lengthy unexplained period, especially as the applicant says he attended high school locally and then started playing music at wedding and social events where youths like him would be targeted.
It is unexplained why at the age approaching [Age] years he decides to leave India.
As noted above, the applicant has three adult siblings. However, there is no submissions, information or evidence of whether his three adult siblings have also been approached to become couriers or have been threatened or harmed on account of the applicant leaving India.
The Tribunal turns to the departure process for leaving India.
The applicant claims after he turned down the offer to work or be a courier, the drug mafia group harassed him and if he continued to reject them he would be harmed, tortured or killed. That he would be forced into using or selling drugs. He also claims the drug mafia group can easily identify people, are connected and can locate people all over India.
Yet the applicant was able in early 2017 to attend at the passport office in Jalandhar and obtain a passport, and he was able to go to Delhi in November 2017 and depart the airport for his journey to Australia.
It does not seem credible that the applicant could turn down the offer to work or be a courier, be threatened and assaulted for such a refusal, and yet without hindrance or tracking be able to obtain his passport in Jalandhar and then head to Delhi months later to depart India.
As a hypothetical scenario, if the applicant was travelling to Jalandhar, Delhi or planning on going abroad to Australia for a music event, it stands to reason that the drug mafia of the sort described by the applicant would seek to approach the applicant to courier or sell drugs in Jalandhar, Delhi or courier drugs overseas through his departure or transit towards Australia. The applicant gives no information or evidence as to how he was able to make such trips and depart the airport at Delhi when he claims the drug mafia would be able to locate him, are connected, and wanted him to be their worker and courier.
The applicant has been in Australia since late 2017. Whilst allowing for a reasonable period to settle in and some language barrier, it has now been over 5 years, and he has had the benefit of a primary decision of the Delegate wherein the reasons for the refusal decision which clearly put the lack of information and credibility in issue. However, in the ensuing timeframe of being in Australia, the applicant does not provide any further details or evidence in support of his claim other than the written submissions which have been addressed above.
Credibility findings
The Tribunal does accept on the country information that drugs are a problem in Punjab.
However, the Tribunal does not accept the applicant’s claim with respect to drugs or the drug mafia group. The applicant’s claim is not credible.
The Tribunal does not accept that the applicant would be targeted by the drug mafia group in their village for his refusal to be their worker or courier.

100. The Tribunal finds that the applicant’s claim on account of being targeted by the drug mafia group in their village for his refusal to be their worker or courier is not credible.
101. The Tribunal does not accept that the applicant would be harmed, tortured or killed by drug mafias whether on account of refusing to be their worker or courier or more generally.
102. The Tribunal does not accept that the applicant would be forced to take drugs or sell drugs by the drug mafia if returned as his claim is not credible.
103. On the evidence before the Tribunal, the Tribunal does not accept that the applicant will be harmed, tortured or killed or persecuted on his return to India as his claim is not credible.
104. It follows on that the safe third country provisions pursuant to s 36(3) of the Act between India and Nepal which may arise in such determinations have also not been engaged as the Tribunal does not accept the applicant’s claim to be credible.
FACTUAL FINDINGS
105. The Tribunal makes the followings finds of fact.
106. The applicant is from Punjab, India. He completed high school and was a musician by trade.
107. The applicant is [Age] years of age presently.
108. The applicant has three adult siblings and his parents in Punjab.
109. The applicant left India and came to Australia in late 2017.
110. The applicant’s claims for protection are not credible per the analysis above.
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.

112. 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.

114. 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.
115. The applicant’s claim includes his fears that he would be forced to take drugs, sell drugs, be a drug courier, or that he would be seriously harmed, tortured or killed upon his return to India.
116. The Tribunal refers to the above credibility analysis and finding that the applicant’s claim of fearing persecution on account of being targeted by the drug mafia group in their village for his refusal to be their worker or courier is not credible.
117. The Tribunal does not accept that the applicant would be targeted by the drug mafia group in their village for his refusal to be their worker or courier.
118. The Tribunal does not accept that the applicant would be forced to take drugs, sell drugs, to be a drug courier or be harmed, tortured or killed by the drug mafia as the claim is not credible.
119. The Tribunal does not accept that the applicant faces a real chance of serious harm from drug group mafias in India as claimed by him.
120. As the Tribunal has found that the applicant’s claim is not credible, no further analysis can be undertaken as to whether protection obligations are owed.
121. The Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed in India on account of being targeted by the drug mafia group in their village for his refusal to be their worker or courier as this claim is not credible.
122. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution due to fearing harm in India on account of being targeted by the drug mafia group in their village for his refusal to be their worker or courier as this claim is not credible.
123. The applicant has made no other protection claims.
124. The Tribunal is not satisfied that the applicant meets the refugee criterion in s 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CRITERION ASSESSMENT

As the applicant has not met the criterion to be considered a refugee under s 36(2)(a) of the Act, the Tribunal has proceeded to consider whether the applicant meets the complementary protection criterion under s 36(2)(aa) of the Act.

126. Section 36(2)(aa) of the Act requires the applicant to satisfy the Tribunal that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returning to his country of nationality, there is a real risk he will suffer significant harm.
127. Section 36(2A) of the Act exhaustively defines that a person will suffer significant harm if they are arbitrarily deprived of their life, or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
128. In MIAC v SZQRB it was held that the ‘real risk’ test under the complementary protection criterion imposed the same standard as the ‘real chance’ test under the refugee criterion.[10]
[10] [2013] FCAFC 33 at [246].
129. The Tribunal refers to the above factual findings in the assessment of the real chance of serious harm in the refugee criterion and relies on it.[11]
[11] The test for real risk of significant harm in assessing complementary protection is the same as the test for real chance of serious harm in assessing the refugee criterion per Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 [243]-[246].
130. In ADJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs the Court stated:
Prior factual findings by reference to the criterion in s 36(2)(a) (the refugee criterion) may be germane to an assessment of an applicant’s claims to fear persecution under s 36(2)(aa) (the complementary protection criterion). There is, in such scenario, no need for any separate consideration of these same factual matters in relation to the complementary protection criterion.[12]
[12] [2021] FCCA 2024 at [34].

131. For the same reasons as set out in the above credibility analysis, refugee criterion assessment and adopted here, the Tribunal finds that the applicant’s claim of fearing persecution in India on account of being targeted by the drug mafia group in their village for his refusal to be their worker or courier is not credible.
132. The Tribunal does not accept that the applicant would be targeted by the drug mafia group in their village for his refusal to be their worker or courier.
133. The Tribunal does not accept that the applicant would be forced to take drugs, sell drugs, to be a drug courier or be harmed, tortured or killed by the drug mafia as the claim is not credible.
134. The Tribunal does not accept that the applicant faces a real risk of significant harm from drug group mafias in India as claimed by him.
135. As the Tribunal has found that the applicant’s claim is not credible, no further analysis can be undertaken as to whether protection obligations are owed.
136. The Tribunal is not satisfied that there is a real risk the applicant will suffer significant harm in India on account of being targeted by the drug mafia group in their village for his refusal to be their courier as the claim is not credible.
137. The applicant has made no other protection claims.
138. No other claims arise on the materials before the Tribunal.
139. The Tribunal has also considered the applicant’s claim as specified (harm due to refusal to be a worker or courier) and more generally (from drug mafia groups) both in his village and India generally but is not able to find in favour of the applicant as the claim is not credible.
140. The Tribunal has also considered an integer of the applicant’s claim that if returned, he would be forced into using or selling drugs including being forced to become a courier against his will and under duress but is not able to find in favour of the applicant is the claim is not credible.
141. The Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.
CONCLUSION
142. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION

145. The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…