1932626 (Refugee) - [2025] ARTA 1840

1932626 (REFUGEE) [2025] ARTA 1840 (29 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 1932626
Tribunal:General Member D. Gordon
Date:29 August 2025

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

Statement made on 29 August 2025 at 12:12pm
CATCHWORDS
REFUGEE – protection visa – India – first applicant husband’s property dispute with aunt and her husband – harassment and threats by aunt, uncle and gangsters – late claim of second applicant wife’s property dispute with cousin – cousin imprisoned after killing his father and mother separately – cousin now released and threats to wife’s father – applicants’ parents’ relocations – family members’ political or gangster connections – no supporting evidence initially – procedural fairness, time granted and documents and legal submissions provided – claim for complementary protection – no application for protection while studying in third country – no harm to parents after relocating or to siblings – cousin imprisoned for life and no documentation of release provided – country information – disputes and fears accepted, political and gangster connections not accepted – relocation reasonable – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (4), (5), 36(2)(a), (aa), (2A), (2B)(a), 65
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
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 24 October 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 7 June 2018.
The delegate refused to grant the visas on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicants had a well-founded fear of persecution, in that there is not a real chance that, if the applicants returned to their country of nationality, the applicants would be persecuted on account of their race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicants were not persons in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their country of nationality, there is a real risk that the applicants will suffer significant harm.
Relevantly, the Delegate’s decision states that protection obligations were not owing as the applicants could relocate within India and avoid the harms claimed. See pages 6 and 8 of the Decision Record dated 24 October 2019.
The applicants were aggrieved by the decision of the Delegate and sought merits review before the Tribunal.
The first and second named applicants appeared before the Tribunal on 27 June 2025 and 15 August 2025 to give evidence and present arguments.
The third named applicant is a child and did not have protection claims of their own. They were not present at the hearings. Nothing adverse turns on this.
The Tribunal also received oral evidence from the applicants’ parents on 27 June 2025.
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicants were represented by Mr. Dwarampudi.
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 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 should be affirmed.
COUNTRY OF NATIONALITY
The Tribunal finds the applicants’ identity and nationality are confirmed by their passport and recorded personal particulars.
The Tribunal finds that the applicants are nationals 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 applicants.
The applicants, in their protection visa application form claim that the first named applicant has a property dispute with his family members, and he would be seriously harmed or killed if he returns to India.
THE MERITS REVIEW APPLICATION BEFORE THE TRIBUNAL
The Tribunal has examined the applicants’ merits review application form and the supporting documents on the file.
At the Tribunal during the first hearing, the applicants added a further protection claim, that the second named applicant also had a property dispute with her cousin, and that she would be seriously harmed or killed if she returns to India.
FIRST HEARING ON 27 JUNE 2025
Preliminary matters and overview
The matter was initially listed for a single day hearing on 27 June 2025.
However, based on the initial documents on the file and the evidence given, the Tribunal was concerned that the applicants have a proper and full opportunity to present their claims.
In the circumstances, the hearing on 27 June 2025 was treated as a preliminary hearing to identify the claims and evidence and outline what matters needed further examination and evidence and for a second hearing to be set down after further evidence and submissions were filed to ensure procedural fairness and a fair hearing on the next date.
The evidence given
The following evidence was given at the first hearing on 27 June 2025.
Both the first and second named applicants were born in Hyderabad, India.
The first named applicant was [Age] years of age, and the second named applicant was [Age] years of age at the time of the hearing.
The first and second named applicants have three children. One male child born in India and [Age] years of age. Their two other children are female, born in [Year] and [Year] respectively.
The first named applicant has a Bachelor of [Subject 1] degree from India which he finished in 2009.
The second named applicant has a Masters in [Subject 2] degree from India which she finished in 2015.
The first named applicant graduated in India and went to [Country 1] where he lived for five and half years whilst attempting [a Subject 3] degree which he did not finish. He held a [Country 1] student visa for those 5.5 years.
The first named applicant stated he did not work in his field of [work sector] in India.
The second named applicant completed her bachelors in 2007 and then did her masters 7 years later. She worked as [an occupation 1] in India for 4 to 5 years in different companies.
The applicants explained that they were [Social media] friends in 2011 and in 2014 the first named applicant came back from [Country] to India and in 2015 they were married.
The applicants confirmed they were both Muslims.
The applicants explained they came to Australia on a visitors visa in 2018.
The first named applicant stated he has [sisters] and [brothers], and his mother and father are alive. [His] brothers have moved out of India. [Some] sisters are married in different places of India and one sister is still in Hyderabad and living with his parents.
The second named applicant stated she has one sister and one brother. Her parents are alive. At the time of the first hearing, all of them were in [Country 2].
First named applicant’s claim – fear of harm from aunty [Ms A] and her husband [Mr B]
The Tribunal raised a concern that the protection visa application suggested the harm feared was from the first named applicant’s sister. The first named applicant clarified this to be an error and that he feared harm from his father’s sister [Ms A] (his aunty).
The applicants explained that the aunty [Ms A] and her husband [Mr B] were the persons threatening them.
They could not recall the name of the first named applicant’s other aunty as they called them ‘aunty’ and ‘uncle’.
The applicants explained that the first named applicant’s father’s property belongs to his grandfather. The property is in Hyderabad and over 1000 squares in size and could occupy 3 to 4 Melbourne city buildings of the size occupied by the Tribunal. They could not remember how many bedrooms but there is a house on it.
The applicants explained that the first named applicant’s grandfather gave his daughter [Ms A] to his sister’s son [Mr B].
That [Ms A] and [Mr B] were related.
That the first named applicant’s father is also related to [Ms A] and [Mr B].
That [Mr B] is the first named applicant’s father’s brother-in-law.
The first named applicant said that his grandfather had passed away.
The applicants explained that in their religion, the grandfather gave more of the property to the sons and less to the daughters. This means aunty [Ms A] got less.
However, aunty [Ms A]’s husband [Mr B] demanded that he is already a nephew and he also wanted [Ms A]’s portion as her husband. He wanted both sides shares in the property.
The first named applicant said that when he was in [Country 1], [Ms A] and [Mr B] made repeated demands over the property shares again. The demands by them on the property had initially started when he was in school.
The first named applicant explained that [Ms A] and [Mr B] disagreed with their share of the property and went to court.
When the first named applicant finished schooling, [Ms A] and [Mr B] came and started again wanting more shares in the property.
[Ms A] and [Mr B] were not living on the property. [Ms A] was living with her husband [Mr B]. However, [Ms A] would come to ask for more share of the land and house.
[Ms A] would send gangsters to harass them.
The first named applicant also stated that his mother’s mother is also related to [Mr B]. His grandfather from his maternal side also died. [Mr B] wanted this share also.
The applicants explained that [Mr B] on behalf of [Ms A] wanted three portions of the land when [Ms A] was only entitled to one portion. He wanted one portion from the maternal side and two portions from the paternal side. These demands happened over 2003 to 2004.
The first named applicant’s both grandfathers had died.
The first named applicant explained that his father had decided to bring his mother-in-law home with him as she only had two daughters (his mother and his aunty). This made the situation worse as he did not give the share portion to [Ms A] and also brought his mother-in-law to live at their home.
The first named applicant said there was harassment and gangsters were sent to say they would kidnap and kill him.
The first named applicant explained that when he was in the 7^th grade, they tried to kidnap him. He was at his grandmother’s house. However, he was sleeping on the floor and they could not see him.
The first named applicant said that his father sent him to [Country 1] to save him from the threats and harms from [Ms A] and [Mr B].
The first named applicant said he went to [Country 1] in 2009 when he was [Age] years of age.
The Tribunal asked whether there were any police reports regarding these threats over the land by [Ms A] and [Mr B]. The applicants said no.
The first named applicant stated that [Mr B] also harassed his maternal grandmother.
The first named applicant stated that [Ms A] and [Mr B] were jealous that his father could send him to [Country 1].
The first named applicant said that his father and his brother distributed the shares over the property.
The first named applicant said that his father said that he had spent money on [Ms A] and [Mr B]’s wedding, so they did not get a share.
The first named applicant said that [Ms A] and [Mr B] demanded the shares or they threatened they would kill him.
The first named applicant said that [Ms A] and [Mr B] bribed the police.
The first named applicant stated that during their marriage [Ms A] and [Mr B] came to threaten him and the second named applicant. They used to get calls every day from private numbers.
That even if the first named applicant would go with his friends out of city, people would follow him.
The first named applicant said that [Ms A] and [Mr B] would even call him on his [Country 1] number.
The first named applicant said his father was [an occupation 2], so [Ms A] and [Mr B] knew when his father retired, he would get a lot of money.
That the first named applicant’s father retired in 2015. [Ms A] and [Mr B] also wanted a share of his father’s retirement funds.
His father was harassed and attacked as he could send his sons overseas and spend money on his daughters’ weddings.
Second named applicant claim – fear of harm from cousin [Mr C]
The second named applicant raised a new claim at the first hearing, that she feared harm from her cousin [Mr C].
That her cousin [Mr C] killed his father (the second named applicant’s father’s brother).
Her cousin [Mr C] was in prison. His mother went to lawyers and claimed he had a mental issue and got her cousin [Mr C] released. Her cousin [Mr C] was residing with his mother.
Her cousin [Mr C] then started harassing and beating his mother. He wanted his mother to sign over property to his name. Her cousin [Mr C] then killed his mother for refusing to sign the property papers. The police found his mother’s body after 2 weeks in the house.
The entire property went to the second named applicant’s father as his brother was dead. Her father was managing the property for her deceased uncle’s daughter in [Country 2].
The second named applicant stated that her father sold the property and gave all the money to her deceased uncle’s daughter.
That her cousin [Mr C] got out of prison and saw that all property was sold and given to his sister in [Country 2].
The second named applicant stated that her cousin [Mr C] got released on good behaviour after his mother’s murder as usually the sentence is for 10 years. He got out and saw the property was sold and he came to the second named applicant’s father.
Her cousin [Mr C] blamed her father for giving all the property to his sister. That he should have got the property. The second named applicant’s father said he had given the property proceeds to his sister. That as [Mr C] had killed his parents, he could not inherit.
That [Mr C] got angry at her father and her father called the police and they came and [Mr C] ran away but he would call daily threatening to kill her father and saying he would kill his daughter and kidnap his daughter (the second named applicant).
The second named applicant’s father informed the police of these threats. However, [Mr C] got involved with politicians and became powerful and even though the landline was disconnected, he got their mobile number and called her father saying he would kill her mother and her. The second named applicant was very scared as she was not married, and she felt she was marked and had the reputation of belonging to a murderer’s family.
The second named applicant had started talking to the first named applicant and they became friends on [Social media], he returned to India from [Country 1], and they got married. Even his parents did not know of her cousin [Mr C] as they would have separated them if they found out. The newspapers had the story of cousin [Mr C] and their family name.
The second named applicant stated that in 2014 they moved to Bangalore to escape and then came back after their marriage. She was not getting marriage proposals because of her cousin [Mr C]. She started her masters degree and got married in her first year. Her father said [Mr C] was still looking for her.
The second named applicant started getting calls asking where is her father and demanding for his money or [Mr C] would kill her and gangsters would come and look for them.
The second named applicant then became pregnant and had her son. She has been here in Australia for 8 years and did not want to go back.
The second named applicant said that [Mr C] was very connected with politicians, she had heard he had murdered other people.

The second named applicant stated her cousin [Mr C] is a drug addict as well and she did not know what else he could do.
The second named applicant said her parents are old now. However, [Mr C] calls her father every 2 to 3 weeks. That her father regularly moves. Her brother had asked her father to come to his place in [Country 2]. That her sister is married with children, and she has moved to [Country 2].
The first named applicant stated that even his parents keep moving around between south and east Hyderabad.
Tribunal’s concerns raised with the applicants
The Tribunal upon hearing the above evidence raised the following concerns.
The Tribunal asked about state protection. The applicants stated that the police were not helping due to bribery and corruption.

100. The Tribunal raised the issue of relocation within India. The applicants stated that the persons they feared were all very connected, they were connected to the Mafia, they could be located. That their parents were old and could mistakenly disclose their location or that their calls could be traced. They had tried moving to Bangalore, Mysore and Uti but they received calls.
101. The Tribunal raised its concern that there were no documents about [Mr C]’s murder conviction.
102. The Tribunal raised its concerns that there were no paperwork about the land claims in issue such as title searches.
103. The applicants replied that they were busy raising their children and did not think much about providing such evidence. That their parents would be on summer holidays. That title searches could not be done unless requested in person due to corruption.
104. The applicants stated their parents could not assist as they were very old.
105. The Tribunal asked the first named applicant about his stay in [Country 1] in 2009. That why did he not apply for protection in [Country 1] when he was there for 5.5 years. The first named applicant replied that his father did not tell him to apply. He never thought about applying for protection.
106. The Tribunal raised that the written protection claim filed with the Department does not have the details and matters given in evidence at the hearing. The applicants stated that it was possible their claims were not recorded properly.
107. The Tribunal mentioned that their protection claim mentioned a gangster “[Mr D]” by name, but they did not discuss this gangster. The applicants replied that they have no idea who this gangster “[Mr D]” was.
PROCEDURAL FAIRNESS – TIME GRANTED TO DEVELOP CLAIM AND EVIDENCE
108. The Tribunal was concerned at the conclusion of the first hearing that the applicants had not raised these claims formally with the Tribunal or filed appropriate evidence to support these claims.
109. As a matter of procedural fairness and to ensure a second fair hearing, the Tribunal was of the view that the applicants should be granted time to put their claims in writing, conduct any required property searches, arrange for the evidence of their parents and obtain other relevant documents to support their claims for protection.
110. The Tribunal also was mindful that the applicants needed a second hearing where they could raise these documents, and their claims could be further explored.
111. The Tribunal invited the applicants to submit their claims in writing and to file further evidence and arrange for their parents to give evidence.
112. The Tribunal adjourned the matter part-heard for a continuation.
APPLICANTS SUBMIT FURTHER DOCUMENTS POST FIRST HEARING
113. The applicants after the first hearing submitted further documents.
114. These included putting their respective protection claims in writing which arose during the first hearing.
115. The applicants supplied statements from their respective parents.
116. The applicants supplied the conviction judgment for the second named applicant’s cousin [Mr C].
117. The applicants supplied the property papers for the second named applicant’s father selling her uncles land on behalf of his daughter in [Country 2].
118. Legal submissions were also filed by their representative addressing the updated claims. These submissions identified the first named applicant’s claim was based on fears of harm from [Ms A], [Mr B] and also [Mr E]. The second named applicant’s claim was based on fear of harm from her cousin [Mr C]. The submissions confirmed the matter was to be assessed under the complementary protection criterion as the applicants did not meet the attributes protected under the refugee criterion.
SECOND HEARING ON 15 AUGUST 2025
119. The Tribunal set down a second hearing on 15 August 2025, being a date after updated evidence and submissions had been filed after the first hearing.
120. The Tribunal noted that the evidence of the claims had been given in the first hearing and that the claims had been subsequently formally put in writing and filed with the Tribunal prior to the second hearing.
Raising concerns with the applicants
121. The Tribunal turned to raising its concerns with the claims.
122. The Tribunal raised its concern that the evidence and claims as made before the Tribunal were very different from what was put in the initial protection visa application. That the second named applicant had made a wholly new claim regarding her cousin [Mr C] that was not put in the Department’s protection visa application. The first named applicant responded that he was not aware he had to submit the information and that he had discussed his claim with his representative. The second named applicant said she did not know she had to submit her claim, and she was preoccupied looking after the first named applicant who was sick.
Raising concerns with first named applicant’s claim
123. The Tribunal raised its concern that the first named applicant went to [Country 1] in 2009 on a student visa for 5.5 years. Yet he did not apply for protection in [Country 1]. He returned to India. The first named applicant replied that his intention was to study in [Country 1] and seek residence in [Country 1]. He did not think of applying for protection in [Country 1]. He was the eldest, so he had to return to India to take care of his sisters. The second named applicant added that when he returned, there was initially no harm, so he stayed back in India, and they got married. Then [Mr B] and [Mr E] found out he returned and started threatening them.
124. The Tribunal raised its concerns that for a claim concerning the proceeds of property sale on the first named applicant’s grandfather’s property, that no title searches or sale details are available to show that [Mr B] and [Mr E] had been denied their share. The first named applicant replied that his father could no longer remember these details about the property as it had been many years ago and his father was now unwell and dizzy and not medically fit.
125. The Tribunal raised its concern that with such a dispute with the aunts and their husbands with the first named applicant’s father, whether there would be details and documents about their share claims. The first named applicant replied that no shares were given as his father spent money on their weddings.
126. The Tribunal raised with the first named applicant that the threats and harms had started almost 20 years ago in 2004 to 2005. The first named applicant agreed. The Tribunal then raised with the first named applicant that in these past 20 years, nothing had happened to his father. The first named applicant replied that he did not know. That maybe when [Mr B] and [Mr E] ran out of money then they threatened his father.
127. The Tribunal raised with the first named applicant that he has [sisters] in India. However, there was no evidence or information to suggest they had been threatened or harmed. The first named applicant replied that as he is the male heir who stood to inherit, the harm would be caused to him.
Raising concerns with second named applicant’s claims
128. The Tribunal referred to the flight tickets provided for the second named applicant’s parents. The Tribunal raised its concerns that the flight tickets were return tickets back to India. That if her parents feared harm from [Mr C], why purchase return tickets back to India. The second named applicant replied that her parents house was in India and if they did not return, that [Mr C] might take their house.
129. The Tribunal raised its concern that on a reading of the conviction judgment of [Mr C], that [Mr C] was sent to prison for life for killing his mother [in] March 2009 and he had been in prison since [October] 2007 awaiting the hearing. That how was he able to get released from life in prison for killing his mother and threaten the second named applicant when the sale deed with [Ms F] and her father is from 2016. That the dates did not add up. That there was no official documentation to support his early release for such a serious crime. The second named applicant replied that [Mr C] was able to get released and threaten her and her father in around 2016.
130. The Tribunal raised with the second named applicant that the property was sold sometime ago and that if [Mr C] was out from prison, many years had passed, and nothing had happened to her father till now. The second named applicant did not reply.
The evidence of the first named applicant’s parents
131. The first named applicant’s father with the assistance of his mother gave evidence that [Mr B] and [Mr E] have been making threats and hiring gangsters to threaten them for the past 20 to 25 years.
132. The Tribunal asked the first named applicant’s parents then why nothing had happened to them for the past 20 to 25 years.
133. The first named applicant’s parents replied that they had kept moving and shifting to avoid the harm.
134. The Tribunal then asked the first named applicant’s parents that whether by relocating they avoided the harm. They answered yes.
Evidence of the second named applicant’s parents
135. The second named applicant’s father gave evidence.
136. He said that [Mr C] came out of prison in 2017.
137. That he sold his brother’s property in 2016 or 2017.
138. That [Mr C] lived around 300 meters from his house, but he had not seen [Mr C] since 2018.
139. That [Ms F] came in 2017 and took the money from the property sale.
140. That [Mr C] was released as there was a change in Government and there was no space in prison.
141. The Tribunal asked the second named applicant’s father that it had been almost 10 years and nothing had happened to him by [Mr C]. He replied that he had kept moving, sometimes to Bangalore and sometimes to Mysore.
142. The Tribunal then asked the second named applicant’s father whether by moving he avoided the harm from [Mr C]. He replied yes.
143. The second named applicant’s father said he had last seen [Mr C] in 2017 when he threatened him and the second named applicant.
144. The Tribunal asked him that it was now August 2025, and nothing had happened to him. He agreed, saying that by moving he avoided the harm.
Raising concerns – the issue of relocation
145. The Tribunal after hearing their parents’ evidence that they were safe by relocating took further evidence from the applicants on the issue of their ability to relocate.
146. The Tribunal raised its preliminary view that after hearing their parents’ evidence and the lack of any harm or threats for many years to their parents through relocating, the issue might fall to be determined on relocation.
147. Notably both set of parents had agreed that by relocating they had avoided harm from [Ms A], [Mr B], [Mr E] and [Mr C] respectively.
148. The Tribunal stated that it wished to discuss relocation with the applicants.
149. The Tribunal asked the first named applicant whether he could relocate and avoid the harm he feared. The first named applicant replied stated it was about his children’s good future. He did not want to relocate. He did not want his children exposed to the rumours of the murders. That if he relocated, he could be located and harmed and if he was away he could not be located or harmed.
150. The Tribunal then asked the second named applicant whether she cold relocate to avoid the harm feared by her.
151. The Tribunal asked the second named applicant whether she could relocate to Bangalore or Mysore. She replied that she did not want to go back, and she felt safe in Australia.
152. The applicants had no further evidence to give and the hearing concluded.
FURTHER DOCUMENTS POST SECOND HEARING
153. After the hearing further documents were submitted regarding the property which the Tribunal has reviewed and considered.
154. The submission included a property sale document and a statement concerning further threats of 22 April 2019.
155. These included an email from the representative to the applicants discussing the relocation test.
COUNTRY INFORMATION
156. Tribunal has had regard for relevant country information from India.[1]
[1] DFAT report for India – 2024.
157. [2.7] India’s 1.4 billion people are ethnically and linguistically diverse. According to the CIA World Factbook, more than 85 per cent of the population is aged 54 years or younger, with a median age of under 29 years. About 36 per cent of the population lives in urban areas. India’s main cities are very large, with 32 million people living in New Delhi and more than 20 million in Mumbai. Several other cities have a population above 10 million.
158. [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.
159. [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.
160. [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.
161. [3.42] There is also significant geographic variance in the situation of Muslims in the community across India. There are incidents of societal discrimination against Muslims and hate speech is common, as evident on social media around the world. Such hate speech and discriminatory language is sometimes made by high profile people or in other public contexts. The majority of Muslims, especially those who live in majority Muslim communities, do not experience significant day-to-day discrimination and, noting the caveats above, DFAT assesses that the level of societal discrimination across India varies from low to medium depending on the majority religion in the region one is located in. DFAT assesses the risk is also higher for Dalit converts and Muslims considered to be of a low caste, given their intersectional identities.
162. [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.
163. [5.20] Many internal migrants experienced significant hardship during the COVID-19 pandemic because of lockdowns that prevented people who had moved for work from earning an income. This, in turn, caused many people to travel to large cities in search of employment or essential supplies. Conversely, many internal migrants returned home to their families when they were unable to work.
164. [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.
165. [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. For women, relocation might involve becoming a single woman. LGBTI people are unlikely to be able to relocate away from discrimination anywhere in India, but an upper class LGBTI person might find some safety in a large city (see Sexual Orientation and Gender Identity).
APPLICABLE LEGAL PRINCIPLES IN PROTECTION ASSESSMENT
166. The Tribunal sets out the applicable legal principles in assessing protection claims.
167. 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.
168. 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.[2]
[2] (1997) 191 CLR 559 at 596.
169. 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.[3]
[3] (1997) 74 FCR 275 at 288.
170. A decision maker is not required to make the applicant’s case for him or her, per Prasad v MIEA.[4]
[4] (1985) 6 FCR 155 at 169-70.
171. 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.[5]
[5] [2006] FCAFC 61 at [76].
172. The Tribunal is not required to accept uncritically any and all claims made by an applicant, per Randhawa v MIEA.[6]
[6] (1994) 124 ALR 265 at [278].
ANALYSIS
173. The first named applicant fears harm from relatives of his father, namely [Mr B], [Mr E] and [Ms A]. They have made threats on account of not being given shares in his grandfather’s property in Hyderabad. The Tribunal notes that initially the evidence was about [Ms A] and [Mr B] and then furthermore [Mr E] has been added. The Tribunal will accept that this group of persecutors include and consist of [Ms A], [Mr B] and [Mr E].
174. The second named applicant fears harm from her cousin [Mr C]. He has made threats on account of shares in his father’s property in Hyderabad which her father sold and gave the proceeds to his sister [Ms F] in [Country 2].
175. There was no contradictory information or evidence before the Tribunal to suggest that these fears were not credible.
176. Each of the applicants’ parents also gave evidence of these fears.

177. The Tribunal has a judicial conviction judgment from India stating that [Mr C] was convicted and sentenced to life in prison for killing his mother.
178. On an administrative decision-making level, the required standard of statutory satisfaction is lower than criminal and civil matters. See also Plaintiff M64/2015 v Minister for Immigration [2015] HCA 50, [64] per Gageler J, citing Briginshaw v Briginshaw (1938) 60 CLR 336, at 361.
179. The Tribunal is satisfied that the applicants hold the respective fears they claim and there is some animosity by their respective family members regarding disputes over the properties.
180. The Tribunal notes that the applicants claimed that their persecutors were politically connected and also connected to gangs, however in their evidence during both days of the hearing they gave no evidence of any specific politicians, political parties, connections to state authorities or any links or conduct of gang members or gang affiliates. The Tribunal does not accept this part of the claim.
No evidence of threats by other persons
181. The Tribunal has raised with the applicants during the first hearing that their protection visa application mentioned threats written as follows:
The gang headed by [Mr D] is linked with inter state mafia, spread across India.

182. The Tribunal asked the applicant about this “[Mr D]” and the applicants indicated they had no idea who this person was or why he was mentioned in their written protection claim. The evidence was that this was an error.
183. The Tribunal also notes that after the second hearing, submissions were sent in including a letter of complaint made of 22 April 2019 by [Mr H] that a “[Mr G]” was threatening that no one could sell the property without his permission.
184. However, during both days of hearings, neither the applicants nor their parents mentioned this “[Mr G]”. Neither was there any mention of “[Mr D]”.
185. No oral or written submissions were made discussing any harms by these two persons.
186. The written submissions filed and evidence given orally only claim to fear harm from [Ms A], [Mr B], [Mr E] and [Mr C].
187. The Tribunal does not accept that “[Mr D]” or “[Mr G]” made any serious threats or pose any risk of serious harm to the applicants.
FINDINGS ON THE EVIDENCE
188. The Tribunal makes the following findings on the material and evidence before it.
189. The applicants are Muslims from Hyderabad, India.
190. The first named applicant has [sisters] and [brothers], and his mother and father are alive. [His brothers] have moved out of India. [Some] sisters are married in different places of India and one sister is still in Hyderabad and living with his parents.
191. The second named applicant has one sister and one brother. Her parents are alive. Her family moves and travels between India and [Country 2]. Her brother and sister are in [Country 2] and her parents travel and visit.
192. The first and second named applicants have three children. One male child born in India and [Age] years of age. Their two other children are female, born in [Year] and [Year] respectively.
193. The fist named applicant has a Bachelor of [Subject 1] degree from India which he finished in 2009.
194. The second named applicant has a Masters in [Subject 2] degree from India which she finished in 2015.
195. The first named applicant graduated in India in 2009 and went to [Country 1] where he lived for five and half years whilst attempting [a Subject 3] degree which he did not finish.
196. The first named applicant was in [Country 1] for 5.5 years from 2009 to 2014.
197. The second named applicant completed her bachelors in 2007 and then did her masters 7 years later. She worked as [an occupation 1] in India for 4 to 5 years in different companies.
198. The applicants became [Social media] friends in 2011.
199. In 2014 the first named applicant came back to India and in 2015 they were married.
200. The applicants came to Australia on a visitors visa in 2018.
201. The first named applicant has a land dispute with [Ms A], [Mr B] and [Mr E].
202. The second named applicant has a land dispute with [Mr C].
203. [Mr C] was convicted of killing his mother and sentenced to life in prison which he has been serving since 2007.
204. The second named applicant’s parents had not suffered any serious harm from [Mr C] in the past 10 years by relocating to Bangalore and Mysore, and the last time [Mr C] was seen was in 2017.
205. The first named applicant’s parents had not suffered any serious harm in the 20 to 25 years from [Ms A], [Mr B] and [Mr E] by relocating between south and east Hyderabad.
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.

207. 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.[7]
[7] (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.

209. 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.
Fear of harm arising from land disputes with family members
210. The applicants claim they fear persecution on account of land disputes with their family members. The first named applicant fears harm from relatives of his father. The second named applicant fears harm from her cousin.
211. The harms feared by the applicants do not arise on account of their race, religion, nationality or particular social group being one or more of the reasons in s 5J(1)(a) of the Act.
212. Therefore, their claimed harms and fears do not engage the refugee criterion.
213. The applicants in their written submissions also state at page 2:
The above claims from both the applicants does not meet the Refugee Convention criteria as their claims were based on the family members dispute and do not involve any political or race , Nationality or Social media issues.

214. The applicants by their own written submissions agree and concede that their claims do not meet the refugee criterion.
215. The applicants by their own written submissions also agree that their claims should be assessed under the complementary protection criterion.
Conclusion on refugee criterion assessment
216. The Tribunal is not satisfied that there is a real chance that the applicants will be seriously harmed in India on account of their land dispute claims as such claims do not engage the refugee criterion being for one or more of the reasons in s 5J(1)(a) of the Act.
217. The Tribunal is not satisfied that the applicants have a well-founded fear of persecution due to fearing harm in India as such claims do not engage the refugee criterion.
218. The Tribunal is not satisfied that the applicants meet the refugee criterion in s 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CRITERION ASSESSMENT

As the applicants have 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.

220. 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 her country of nationality, there is a real risk she will suffer significant harm.
221. 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.
222. 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.[8]
[8] [2013] FCAFC 33 at [246].
223. 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.[9]
[9] [2021] FCCA 2024 at [34].

Fear of harm arising from land disputes with family members
224. The first and second named applicants claim they fear persecution on account of land disputes with their respective family members.
225. The first named applicant fears harm from relatives of his father, namely [Mr B], [Mr E] and [Ms A]. They have made threats on account of not being given shares in his grandfather’s property in Hyderabad.
226. The second named applicant fears harm from her cousin [Mr C]. He has made threats on account of shares in his father’s property in Hyderabad which her father sold and gave the proceeds to his sister [Ms F] in [Country 2].
The issue of internal relocation
227. During the conclusion of the second hearing, it became apparent that relocation was a critical issue due to the evidence of the applicants’ parents.
228. The applicants’ representative also agreed that relocation was an issue for determination.
229. The Tribunal engaged with the representative to identify and discuss the legal test for relocation and asked each of the first and second named applicants about whether they could relocate and avoid the harms feared.
Matters that enlivened the relocation issue
230. The following matters enlivened the relocation issue.
231. The first named applicant came back from [Country 1] in 2014. He had also spent 5.5 years in [Country 1]. Firstly, in the 5.5 years he was in [Country 1], he gave evidence that it never occurred to him to apply for protection, that his father did not ask him to apply, and secondly after returning to India in 2014 there was no evidence or information placed before the Tribunal that he suffered any serious threats or serious harms from [Ms A], [Mr B] or [Mr E]. Yet he also gave evidence that his father sent him to [Country 1] to escape the harm.
232. The first named applicant’s parents’ evidence at the hearing was also that in the past 20 to 25 years they had not suffered any serious harm from [Ms A], [Mr B] or [Mr E] as they had relocated and moved.
233. With respect to the second named applicant, the evidence was that [Mr C] was in jail at least from 2007 and released sometime in 2016. However, she came to Australia in 2018. There was no evidence or information placed before the Tribunal that in the period since [Mr C]’s early release from prison and till her coming to Australia, that the second named applicant suffered any serious threats or serious harms from [Mr C]. The evidence of her father was that [Mr C] had not been seen since 2017.
234. Also, with respect to the second named applicant, the evidence of her father was that by relocating and moving to Bangalore and Mysore, her parents had been able to avoid serious harm posed by [Mr C] and as mentioned above, [Mr C] had not been seen since 2017.
The test for relocation

The relocation test within the complementary protection criterion is set out in s 36(2B)(a) of the Act which relevantly provides that 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 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.

236. The Tribunal had a very robust discussion of relocation with the representative and the applicants.
237. The representative directed the Tribunal to their written submission on relocation which states as follows:
We had discussion with the clients on numerous occasions if there is a real chance of possible relocation to any other state in their home country to which the applicants answered “no” as they do not feel safe and they can be tracked and tortured. How ever we request you to consider this question with the applicants again as it can be an important factor to consider under the real risk of a Significant harm criteria.

238. Based on their written submissions, the applicants’ objection to relocation is that they would be “tracked and tortured”.
239. The Tribunal has turned to consider whether the applicants would be tracked and tortured by [Ms A], [Mr B], [Mr E] and [Mr C] or any one of them.
Relocation analysis against threat posed by [Mr C]
240. With respect to [Mr C], the second named applicant’s father gave evidence that the last time he had seen [Mr C] was in 2017. That it was a long time ago and he had no idea where [Mr C] was. Factoring in 2025, it has now been almost 8 years and [Mr C] has not been seen or approached or engaged in any seriously harmful conduct or threats. The second named applicant’s father also gave evidence that he had avoided the serious harm feared from [Mr C] by relocating and moving between Bangalore and Mysore.
241. There was no evidence that since 2017 there has been any tracking or contacting the second named applicant, her father or the applicants generally by [Mr C] or anyone acting under his instructions.
242. There was no evidence that since 2017 there has been any serious threats or serious harms occasioned on the second named applicant, her father or the applicants generally by [Mr C] or anyone acting under his instructions.
243. The Tribunal does not accept that [Mr C] would track and torture the applicants if they relocated within India to places such as Bangalore or Mysore or even Mumbai or Delhi. The second named applicant’s father gave very clear evidence that by relocating, the harm from [Mr C] was avoided and that he had not seen [Mr C] since 2017.
244. The Tribunal finds that the applicants would not be subjected to a real risk of significant harm from [Mr C] on the claims and fears as raised by them if they relocated within India to places such as Bangalore or Mysore or even Mumbai or Delhi.
Relocation analysis against threat posed by [Ms A], [Mr B] and [Mr E]
245. With respect to [Ms A], [Mr B] and [Mr E], the evidence was that the dispute with them began some 20 to 25 years ago.
246. However, the evidence of the first named applicant’s parents was that in these 20 to 25 years there were no serious threats or serious harms to them from [Ms A], [Mr B] and [Mr E] as they had relocated and moved. The evidence was they relocated between south and east Hyderabad.
247. Notably, the first named applicant gave evidence that his father sent him to [Country 1] to escape the harm posed by [Ms A], [Mr B] and [Mr E]. However, the first named applicant did not apply for protection in [Country 1]. He said his father did not tell him to apply for protection. He then returned to India in 2014.
248. The Tribunal does not accept that [Ms A], [Mr B] and [Mr E] would track and torture the applicants if they relocated within India to places such as Bangalore or Mysore or even Mumbai or Delhi.
249. The dispute with [Ms A], [Mr B] and [Mr E] has been on-going for the past 20-25 years. However, no serious harm has befallen the first named applicant’s parents or his [sisters] who are in India. Even when the first named applicant returned from [Country 1] in 2014 and till his departure to Australia in 2018, there was no evidence of the first named applicant suffering any serious harm or any serious threats being made to him.
250. The Tribunal finds that the applicants would not be subjected to a real risk of significant harm from [Ms A], [Mr B] and [Mr E] or persons acting on their instructions on the claims and fears as raised by them if they relocated within India to places such as Bangalore or Mysore or even Mumbai or Delhi.
251. There was no evidence or information placed before the Tribunal to suggest that new claims or new harms might arise on account of any relocation.
252. The Tribunal has also turned its analysis to whether the two persons named as “[Mr D]” or “[Mr G]” might pose a threat or new threat due to relocation. However, neither the applicants nor their parents gave any evidence during the hearing to suggest they feared being seriously harmed by “[Mr D]” or “[Mr G]” or that relocation would result in fearing harm from “[Mr D]” or “[Mr C]”. The Tribunal does not accept that “[Mr D]” or “[Mr G]” would be able to harm the applicants due to their relocating.
Is relocation reasonable for the applicants
253. The Tribunal has also had regard to the ‘reasonable in the sense practicable’ test for relocation in SZATV v Minister for Immigration and Citizenship.[10]
[10] (2007) 233 CLR 18, 27 [24] (Hayne, Gummow and Crennan JJ).
254. Country information from DFAT above also states that persons in India are able to relocate internally and there is significant internal migration across states.
255. The applicants did not give any evidence or provide any information that suggested that they would not be able to relocate to Bangalore or Mysore. The Tribunal also mentioned other cities such as Mumbai and Delhi. There was no evidence or information given or placed before the Tribunal that a particular city or part of India would not be suitable or reasonable for relocation for the applicants. The evidence was that the applicants were familiar with Bangalore and Mysore as the second named applicant’s family had moved there.
256. The Tribunal has also reviewed the medical information for the first named applicant but there was no medical opinion in there from the doctor stating that the first named applicant was seriously ill and would not be able to move back to India or engage in the usual tasks of relocating.
257. There was no evidence or information that any of the applicants or their children had any medical or other disability that would make relocating or moving back to India unreasonable.
258. The fist named applicant has a Bachelor of [Subject 1] degree from India which he finished in 2009. He has also spent 5.5 years in [Country 1]. This suggests that he is educated and able to move and reside in a new place.
259. The second named applicant has a Masters in [Subject 2] degree from India which she finished in 2015. Her evidence was that she also worked in India for 4 to 5 years as [an occupation 1] in different companies. This suggests that she would be able to return and locate employment.

260. The applicants gave evidence they did not want to return due to the embarrassment of being known as part of [Mr C] family due to the murders he committed. However, these events happened many years ago and [Mr C] was convicted and sent to prison for life. He even obtained early release according to the second named applicant. The Tribunal does not accept that there would be any imputation or aspersions cast on the applicants that would make relocating unreasonable.
261. The first and second named applicants are not old or at a pension or retirement age. They ought to be able to return and use their degrees and qualifications to secure meaningful work.
262. Whilst accepting that the applicants would face some administrative hurdles such as travelling, having to locate a place to stay and seeking out employment, these are matters that are part and parcel of daily life and do not show or impose an unreasonable burden when considered against the benefit of avoiding the harms feared by relocating. Both the applicants also have their parents in India who gave evidence of their own successful relocation.
263. The Tribunal finds that it would be reasonable in the sense practicable for the applicants to relocate to a city such as Bangalore or Mysore or even Mumbai or Delhi and thereby avoid the harms claimed and feared.
Conclusion on relocation

The Tribunal finds per s 36(2B)(a) of the Act that there is taken not to be a real risk that the applicants will suffer significant harm in India as the Tribunal is satisfied that it would be reasonable for the applicants to relocate to an area of India such as Bangalore, Mysore, Mumbai or Delhi where there would not be a real risk that the applicants will suffer significant harm.

265. Therefore Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.
266. Other claims
267. No other claims were put forward by the applicants. No other claims arose on the material before the Tribunal.
Conclusion on complementary criterion assessment
268. The Tribunal is not satisfied that the applicants meet the complementary protection criterion in s 36(2)(aa) of the Act.
CONCLUSION
269. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicants satisfy 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 applicants do not satisfy any of the criteria in s 36(2) of the Act.
DECISION

272. The Tribunal affirms the decision not to grant the applicants a protection visa.
Date of hearing(s): 27 June 2025 and 15 August 2025.
Representative: Mr Prabhat Dwarampudi (MARN: 1462995)

ATTACHMET - Extract from Migration Act 1958
5 (1) Interpretation
…

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

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

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

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

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

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

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

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

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

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

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

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

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