1935943 (Refugee)

[2025] ARTA 1522

1935943 (REFUGEE) [2025] ARTA 1522 (9 MAY 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  1935943

Tribunal:General Member P Wearne

Date:9 May 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 09 May 2025 at 9:46am

CATCHWORDS

REFUGEE – protection visa – India – political opinion – family Congress Party involvement – religion – Muslim – communal violence – physical assault – attack on home – return visits to India – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA& Anor (1994) 34 ALD 347

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 December 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a national of India applied for the visa on 13 July 2017. The visa was refused because the delegate was not satisfied the applicant is a refugee as defined by s 5H(1) of the Act, or that there are substantial reasons for believing that there is a real risk he will suffer significant harm as defined in s 36(2A). On 20 December 2019, the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the decision to refuse the protection visa.

3. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

4. The applicant appeared before the Tribunal on 1 May 2025 to give evidence and present arguments.

5. The issue in this case is whether there is a real chance, if the applicant returns to India, he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If this is not the case, a further issue is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India there is a real risk that he will suffer significant harm.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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.

    Independent information

13. The Department of Foreign Affairs and Trade Country Information Report India (the DFAT Report)[1] states that India is the world’s largest democracy. Both state and national elections meet international standards for free and fair elections.[2] The DFAT Report also states the following about India’s demography:

    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.[3]

    [1] The Department of Foreign Affairs and Trade Country Information Report India (the DFAT Report) 29 September 2023.

    [2] DFAT Report para 2.42.

    [3] DFAT Report paras 2.7.

14. The DFAT report states the following regarding India’s recent history:

    Between 1989 and 2014, no single party won a majority and power alternated between a series of coalition governments, some led by the INC. Current Prime Minister Narendra Modi of the Bharatiya Janata Party (BJP) was elected in 2014 with the first single-party majority since 1984. Modi stood on a platform of development and growth and Hindu nationalism…and was re-elected in 2019 with a larger majority.[4]

    India is a mature and robust democracy in which politics is hotly contested, and news and analysis is often sensationalised. Social media is used widely and sometimes includes disinformation. According to media reports, Hindu nationalism and populism have risen since Modi’s 2014 election. During this period the largest national opposition party, the INC, has weakened significantly at the national level, and no other political party has shown itself capable of forming a nationally cohesive challenge to the ruling BJP. Generalisations about India’s state of democracy are often unhelpful; India is characterised by significant ethno-linguistic and political diversity and the political landscape in one state can differ significantly from its neighbours. Diversity also exists within states.[5]

    Parts of the Indian media landscape tend towards sensationalism, especially television. Open-source material, such as media, may give a skewed view of the extent or nature of events. Indian political discourse is passionate and robust, however is usually peaceful…

    There are a wide range of different political parties representing different interests, which reflect the extensive diversity of Indian people, their ethnicities, and religious, political and social interests.  Only a small number of parties are national parties – most operate within states and Union territories.  Politics may be a sub-regional affair, especially in larger states.  The influence of state and regional parties has reportedly been growing steadily, often at the expense of the once-nationally powerful Indian National Congress (known as INC or simply ‘Congress’).  

    While diverse, Indian politics is still often majoritarian. States are organised around ethno-linguistic groupings, and politics of each state or territory will often align to the interests of the majority groups of that area. Sometimes this can lead to heated debate and political theatre where those who are not part of the majority assert their rights, although it is generally peaceful and arbitrated through democratic processes.[6]

    DFAT assesses leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. There is a risk of violence around elections and in street protests, for example, however, overall, both elections and protests are mostly peaceful.[7]

    [4] DFAT para 2.5.

    [5] DFAT Report para 2.6.

    [6] DFAT Report paras 3.76-3.79.

    [7] DFAT Report para 3.87

15. In the June 2024 elections in India the National Democratic Alliance (NDA), led by the BJP, won a majority, although their tally had reduced significantly compared to the 2019 elections.[8] India's political landscape has significantly evolved over time. Until 3 decades ago, the Congress (Indian National Congress, Congress Party, or Congress) was the dominant force. However, the BJP began gaining substantial electoral strength and emerged as the leading party. Its wins in the 2014 and 2019 elections relegated Congress to historically low levels of influence, winning less than 10% of the seats each time. However, in 2024 the Congress almost doubled its tally.[9]

    [8] India election results, Reuters, 4 June 2024 – accessed 11 April 2025.

    [9] India election results, Reuters, 4 June 2024 – accessed 11 April 2025.

16. The DFAT report states the following about religions in India:

    According to 2011 census data (the most recent available)[[10]], almost 80 per cent (more than 1 billion people) of the population of India is Hindu. Another 14.2 per cent of people are Muslims (just under 200 million), 2.3 per cent are Christians (around 27 million), 1.7 per cent are Sikhs (just under 21 million) and less than 1 per cent are Buddhists (just under 10 million). A further 1.3 per cent (around 18 million) follow other religions including Jain, Zoroastrian, Jewish and Baha’i faiths, and tribal religions.  Muslims, Sikhs, Christians, Buddhists, Jain and Zoroastrians (Parsis) have been notified as minority communities under Section 2 (c) of the National Commission for Minorities Act, 1992.

    [10] 2011 remains the last census. The 2021 census was postponed due to the COVID-19 pandemic.

    The constitution prohibits religious discrimination and guarantees the right to freely practise religion and the right for religions to manage their own affairs...

    Both religious pluralism and communal violence have a long history in India.  The situation has evolved in recent years with new political movements and the adoption of technology that can be used to disseminate information, and the use of social media to incite violence.

    Research by the Pew Research Center published in June 2021 found that 84 per cent of people say that to ‘be truly Indian’ it is important to respect all religions. The same research found that more than 85 per cent people in each of six major religious groups surveyed (Hindus, Muslims, Christians, Sikhs, Buddhists and Jains) felt that they were free to practise their own religion, and most of those agreed that other religious groups were similarly free to practise their religions.  According to the survey, communal violence, while often high-profile events that are covered extensively in the media, are not day-to-day issues for most Indians.[11]

    Indian Muslims are mostly Sunni, however are otherwise not a homogenous group across the country. There are Muslims of various socio-economic statuses, levels of education, careers and religious and political views.  Islam has a long history in India. Muslim and non-Muslim Indians have been living together for centuries.[12]

    Many media sources and human rights commentators claim that anti-Muslim sentiment is rising in India amid growing polarisation. Online trolling and incitement to violence  has been reported, along with various kinds of harassment. For example, in January 2022 various media outlets reported that prominent Muslim women had been included in an online ‘auction’ in a virtual cyber bullying and stalking campaign, which led to the arrest of an organiser of the event.  

    According to research by Pew Research Center in 2021, 24 per cent of Muslims say that their community experiences ‘a lot’ of discrimination. That research found that about 40 per cent of Muslims living in the north of India said they experienced religious discrimination in the last 12 months, which is much higher than that reported in other areas (19 per cent in the south of India and 21 per cent nationally).

    Communal violence and anti-Muslim rioting occurs from time-to-time. For example, in April 2022 a riot allegedly planned by anti-Muslim Hindu nationalist groups killed one person, injured six police officers and caused widespread property damage. Police investigated and made arrests in relation to the violence.  They concluded that the violence was started by small group of about five to seven people who had conspired to cause the unrest.[13]

    Smaller-scale incidents, including lynchings, have also been reported. Local and international media occasionally report on accounts of gangs, which can include dozens of men, beating Muslim men for their religion, or having beef in their houses, for example.  These kinds of incidents receive significant media coverage, but are not common experiences for most Muslims.[14]

    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.[15]

    Kerala

    [11] DFAT Report paras 3.9-3.12.

    [12] DFAT Report para 3.29

    [13] DFAT Report paras 3.33-3.35.

    [14] DFAT Report para 3.37.

    [15] DFAT Report para 3.42

17. Kerala has a lower Hindu percentage of population compared to the percentage of the total Indian population, noted above (i.e., around 80%). A news article (2016) explained why Kerala is a symbol of religious coexistence, as follows:

    The state has a unique mix of three of the world's largest religions: it's roughly 30 percent Muslim, 20 percent Christian and 50 percent Hindu. Not many other places in India or the world have such significant populations of both Christians and Muslims living with a not-too-large majority of Hindus. Given this mix, the rarity of communal violence is striking; a few small-scale incidents are exceptions to a norm of stability and coexistence…So what might explain this peaceful and secular coexistence? There are many possible reasons but one striking thing about Kerala that may offer an explanation is its near-universal provision of not just basic needs, but also public and social services. Kerala's literacy rate -- 94 percent -- is in the same range as much richer areas like the Gulf, China and Europe. The state's infant mortality rate is 12 per 1,000 births, compared to 40 per 1,000 births for India as a whole.[16]

    [16] There's a Place in India Where Religions Coexist Beautifully and Gender Equality Is Unmatched, Huffpost, 6 April 2016 - accessed 24 April 2025.

18. A later (2019) report put the population of Kerala as 55% Hindu, and Muslim together with Christian at 45%.[17]  The Kerala government prides itself on a low level of communal violence compared to other states in India.[18]

    Beef bans in Kerala

    [17] Kerala sidesteps India’s beef debate, GroundTruth Project, 9 May 2019, accessed 24 April 2025.

    [18] Kerala best in law & order, no communal violence for years: CM Pinarayi Vijayan, India Today 1 June 2023 - accessed 24 April 2025.

19. Kerala does not have a ban on beef or cow slaughter. The state is a major consumer of beef and has no regulations that restrict the slaughter of cows.[19] Attempts by Indian central government to impose restrictions on cattle slaughter were strongly opposed in Kerala, with public protests and political resistance ensuring that beef remains widely available.[20] Beef consumption is normalised in Kerala across communities, including Hindus, Muslims, and Christians, making a ban politically and socially infeasible.[21] The state’s ruling parties, especially the Communist Party of India (Marxists), refused to enforce any central government-imposed beef bans.[22] Even the BJP leaders in Kerala have emphasised the distinction between beef (often buffalo or bull meat) and cow and advocated for personal freedom in dietary choices.[23]

    [19] Cattle slaughter in India, Wikipedia, accessed 22 April 2025; Kerala sidesteps India’s beef debate, GroundTruth Project, 9 May 2019 - accessed 24 April 2025.

    [20] Beef-loving Kerala once wanted to ban cow slaughter, 31 January 2023, LinkedIn – accessed 22 April 2025; Kerala sidesteps India’s beef debate, GroundTruth Project, 9 May 2019 - accessed 24 April 2025.

    [21] Beef-loving Kerala once wanted to ban cow slaughter, 31 January 2023, LinkedIn – accessed 22 April 2025; Kerala sidesteps India’s beef debate, GroundTruth Project, 9 May 2019 - accessed 24 April 2025.

    [22] Kerala sidesteps India’s beef debate, GroundTruth Project, 9 May 2019, accessed 24 April 2025.

    [23] 'Beef is not cow': BJP Kerala vice president takes a jibe at Times of India, 5 December 2025 - accessed 24 April 2025.

    CLAIMS AND EVIDENCE    

20. According to the protection visa application the applicant is [an age]-year-old married man whose family hometown is in [Village 1], Kerala.

21. He travelled to Australia on an Indian passport valid to 2026.

22. The delegate’s decision conveniently sets out the applicant’s written claims, which with some edits, are set out below:

    ·The applicant was born in Mangalore, Karnataka, India and his family moved to Kerala in his early childhood.

    ·There was lots of communal violence within the applicant’s hometown.

    ·In high school he faced many issues from communal violence because his brother, father and family were targeted by the BJP (Bharatiya Janata Party) and RSS (Rashtriya Swayamsevak Sangh).

    ·The applicant and his family lived within a BJP stronghold. His brother was a Congress Party cadet within a BJP stronghold.

    ·After he completed his studies in [specified year], the applicant tried to stay away from the violence by merchant navy training in [year]. After training he joined the merchant navy in 2008.

    ·The applicant got a message from friends and family that BJP workers entered the family home searching for the applicant and his brother. His father was physically assaulted and admitted to hospital. The family submitted a case against the BJP. However, this was unsuccessful because the BJP have been the ruling party since 2014. Therefore, the Congress Party has no power.

    ·The applicant followed the Congress Party because his brother did. Congress was in power until 2014, then the BJP came into power.

    ·The majority of people are Hindu and Hindus tend to follow the BJP. The applicant is a Muslim. Since the BJP came into power there was increased violence against the Muslim population, including to the applicant and his brother.

    ·In India presently there are many clashes between Muslims, Hindus and the BJP party. Within his home village many minorities are facing trouble. Muslims are not allowed to eat beef nor allowed to involve themselves in Islamic functions. Communal violence broke out as a result.

    ·The BJP have attacked him many times. They have attacked his house with weapons. Once with BJP tried to attack him with acid however luckily, he escaped.

    ·Due to the violence experienced, his brother fled to Australia. The applicant was then later targeted by the BJP due to the absence of his brother. They looted him when exiting his house, they damaged his car, his bike and his property.

    ·The BJP are responsible for harming him because he tried to lodge a complaint against them.

    ·One day when returning from his religious program a group of people attacked him when travelling on his bike. They attacked his leg. The local village people took him to a nearby hospital for treatment. He got [number] stitches on his foot and he was hospitalised for 15 days.

    ·His father made a FIR complaint to the police however no action was taken by the police. Whenever the family followed this up, they said they were still searching for the culprits.

    ·In his village as a minority group the women were disturbed and stones pelted on the praying hall.

    ·Upon completion of the applicant’s merchant navy shipping contract [in] January 2017 he returned home. He was worried about trouble and came a special route back from [Country 1] His parents picked him up from an airport approximately 2 hours from his hometown. But news of the applicant’s return got out. His father had told the police they were going to pick him up and the police said they would look after them. But they did not. On his journey home they passed a tollgate on the highway. Some BJP workers surrounded their car. They hit and damaged their car. His mother was injured by broken glass. Nobody in surrounding vehicles offered to help. Police took them to the hospital. This incident occurred due to his brother’s connections to Congress.

    ·Wherever the applicant stays in India he will be found. He is safe in Australia.

1. The delegate’s decision record made 9 December 2019 indicates the applicant’s travel to and from Australia as follows:

   ·Arrived [November] 2010, departed [November] 2010 (Subclass ZM-988 Maritime Crew visa).

   ·Arrived [a day in] October 2011, departed [the next day] (Subclass ZM-988 Maritime Crew visa).

   ·Arrived [December] 2011, departed [December] 2011 (Subclass ZM-988 Maritime Crew visa).

   ·Arrived [June] 2014, departed [June] 2014 (Subclass ZM-988 Maritime Crew visa).

   ·Arrived [in] May 2017, (Subclass FA-600 Visitor visa).

   [The applicant applied for a protection visa on 13 July 2017.]

   ·Departed [in] July 2018, arrived [in] September 2018.

   ·Departed [in] May 2019, arrived [in] July 2019.

   Department interview

2. On 27 November 2019, the applicant attended a Departmental interview regarding his claims for protection. I have listened to a recording of the interview held on the Department file. The following summary of claims and evidence given by the applicant during the interview is taken, with some edits made, from the delegate’s decision record.

   ·The applicant spent most of his adult life in Kerala with his family. His parents and many extended relatives reside in Kerala. His extended family reside in different regions of India and within [Country 1]. He has little contact with his extended family. He has routine contact with his parents.

   ·He married in 2015 and has [number] children. His wife and children remain in India and currently live at his in-laws in south Kerala.

   ·He speaks with his wife most evenings after work. He confirmed that his family have not experienced any problems since his most recent arrival in Australia [i.e. July 2019].

   ·His brother, [named], has also applied for protection in Australia.[24] His brother arrived in Australia in February 2017, approximately 3 months before the applicant. They live separately but near each other. Both the applicant and his brother were employed with the merchant navy.

   [24] Tribunal file [number]. Constituted to the same Member.

   ·The applicant travelled widely because of his merchant navy employment ([list of many countries]). He confirmed at interview that his international travel was work related and completed in his 10 years of his employment with the merchant navy. He has not travelled internationally for personal reasons. Most of the applicant’s travel destinations are documented on his former Indian passport which he did not bring to the interview. He further confirmed that during this 10-year period working for the merchant navy he returned home for about 1 month every year.

   ·The applicant said that he had spent time in other regions of India; he spent about 7 months in Mumbai in [year] for training for the merchant navy.

   ·The applicant attempted to apply for a [Country 1] tourist visa around 2015. However, his visa application was refused. He was not specific about the reasons why. He stated that he does not have any contacts in [Country 1].

   Political involvement

   ·When asked if he was politically active in any capacity, the applicant stated that he was not involved in politics in any capacity in India and that he did not particularly care it. He said that his brother had been a cadet for the Congress Party which is how some members of the community recognised the applicant. However, he did not submit any evidence to support this statement.

   ·The applicant mentioned an affiliation with the Congress Party and the Communist Party of India (Marxist) when he was young. During his time in college, these parties (and others) paid the applicant and other students to put up party posters. He did this purely for the money at the time. He stated that if his friends went along to political functions or processions, he would sometimes attend. He recalls voting on 2 occasions in his life, including for Congress when he was approximately 19 years old. The last time he voted in the elections was approximately 6 to 7 years ago. He also stated he sometimes plays [sport] with his friends who are members of the Congress Party or the Communist Party of India (Marxist).

   ·When asked about his political commentary, he said he has never posted any political commentary online or expressed his own political opinion publicly in any capacity. He also stated that he is not a member of any religious or community organisations that have political associations.

   ·His parents do not follow politics, and he has not followed politics in any capacity during his time in Australia.

   ·He confirmed towards that his focus had been on his career and earning money to support his family in India.

   Past harm and credibility considerations

   ·When asked if he had experienced any issues during his time in India, the applicant said that due to his brother’s association with the Congress Party and due to being Muslim, he was attacked.

   ·The key incident for him occurred in 2017 after discharge from his ship. He had left a mosque and was riding his bike past a group of BJP/RSS workers who appeared to be drunk. The applicant stated that he did not know any of them as he did not ever speak with them. They stopped his bike and attacked him. When asked how they approached him, he said this occurred in the evening. One pushed him off his bike which injured his leg. He became unconscious and villagers took him to a local clinic for treatment. He could not recall what treatment he was given because he was unconscious at the time. His father was called to pick him up from the clinic. When asked if he held any documentary evidence of his medical treatment, he indicated that there was some. However, it was probably with his parents in India. He could not recall the exact timeframe when this incident occurred. He further stated that he was targeted because they knew his brother worked with the Congress Party.

   [Acid attack]

   ·The applicant stated that he was once almost attacked with acid however he managed to escape. The applicant was not specific about when this incident occurred nor the specifics of the incident himself. He was significantly vague and did not volunteer any further information.

   [Family home and father attacked]

   ·The applicant indicated that a group of people (most likely RSS and/or BJP people or workers) came searching for his brother and his family home. They physically assaulted his father. The applicant indicated that he was not home at the time. He was overseas on deployment and was not present to recount this specific incident. He was prompted on a few occasions to recall when this incident occurred however he experienced difficulty in recalling the timeframe.

   [Muslim faith and verbal threats]

   ·The applicant was asked if he had ever experienced difficulties in India due to his faith. He replied that the national policies have changed since the BJP came into power in 2014. He stated RSS target Muslims regularly in India and there have been a number of large, public incidents targeting Muslims in recent years which reached the attention of the international media. However, when asked specifically, he struggled to recall when he had personally experienced difficulty as a result of his faith. The applicant indicated that he had not specifically been targeted because of his faith. However, later in the interview he stated it was the above discussed key incident where he was injured by BJP/RSS people while riding his bike home, that he was targeted for this reason.

   ·The applicant said he had been verbally threatened in India. However, he was not overly clear on the extent of these verbal threats despite being prompted on several occasions. When discussing this element of his claims, he mostly spoke about the situation for Muslims in India generally rather than specific personal experiences.

   [Written claims not made at interview]

   ·The delegate noted the applicant made written claims with the protection visa application, which he did not discuss at interview, despite being prompted. These written claims are as follows:

   oThe applicant’s home was looted. When he came out of his home, people started hitting his car, bike and damaging his property.

   oHe is always being attacked.

   oOn return to India [in] January 2017 from his work assignment in [Country 1], the applicant and his parents were attacked by BJP people at a highway toll- gate. They surrounded the car, hit and damaged the car. Consequently, his mother was injured by breaking glass.

   [Trips home to India]

   ·The delegate noted the applicant had returned home to India on 2 occasions since his entry into Australia [in] May 2017, and applying for protection. He claimed he was required to return home on both occasions due to family emergencies. He stated that during his stays in India he did not experience any problems. Despite the applicant’s justifications, the delegate questioned why the applicant would return to India on 2 occasions, after lodging his protection visa application, if he was in genuine fear of persecutory harm. This led the delegate to question the veracity of the applicant’s claims overall.

   [Wife remained in India after applicant fled]

   ·The delegate asked the applicant why he left India without his wife if he was in fear of harm. He did not have a response. He stated that he did not know about that. All he knew was that he needed to come to Australia as soon as possible. The delegate also noted he had entered Australia on 4 occasions prior to applying for his tourist visa [in] May 2017. He had also demonstrated significant international travel in his former employment. However, the delegate noted, he had not applied for protection in the past either in Australia or another country. The applicant told the delegate that he did not consider applying for protection or overstaying in Australia or any other country he had visited.

   Review by the Tribunal

3. The applicant did not provide updating information or evidence to the Tribunal regarding his claims for protection before the hearing.

   Tribunal hearing - 1 May 2025

4. The applicant said his brother assisted him prepare the protection visa application. His brother, who is a couple of years older than him, arrived in Australia several months earlier than the applicant.[25] The applicant said his brother had already applied for a protection visa by the time the applicant arrived here in May 2017.[26]

   [25] The applicant’s brother arrived in February 2017.

   [26] Confirmed by Department and Tribunal records.

5. The applicant confirmed that after he was born, his family moved to an area (like a suburb) called [Suburb 1] in Kerala. He lived here most of his life, except for the periods when he was working for the merchant navy from July 2008 to 2017. During this employment period he was home for a month or so between shipping employment contracts. His mother and father continue to reside at the family home in [Suburb 1]. A [further sibling] lives in [Country 2].

6. The applicant is close to his brother who is also living in Sydney. They reside in [a region of Sydney] but don’t live together. The applicant has moved about 5 times since arriving in Australia but remained in the same area. When he first arrived, he worked for a [factory] for about 6 years. For the last 6 months he has been working for the NSW Government as [an occupation 1]. He sends money home to support his parents and his wife. She does not work.

7. The applicant’s [children] were born in India after he applied for a protection visa. [Years of birth deleted].

   Trips back to India

8. The applicant acknowledged that he has made 4 trips back to India since applying for protection. He confirmed that he had returned twice to India since the delegate’s decision was made in December 2019. His 2 earlier trips home were noted in the delegate’s decision record. His 2 most recent trips there are indicated in his passport and confirmed by the applicant and Departmental movement records.

9. The details of the return trips to India follow:

   1.Departed Australia [in] July 2018, arrived Australia [in] September 2018 (57 days). Reason: the applicant’s wife had a [medical issue].

   2.Departed Australia [in] May 2019, arrived Australia [in] July 2019 (57 days). Reason: the applicant’s father had [medical condition]. The applicant’s brother accompanied the applicant on this trip home.

   3.Departed Australia [in] May 2022, arrived Australia [in] August 2022 (96 days). Reason: the applicant’s parents were in a car accident. His [mother was] injured and she was hospitalised. The applicant’s brother accompanied the applicant on this trip home.

   4.Departed Australia [in] April 2024, arrived Australia [June] 2024 (73 days). Reason: the applicant’s father had [specified] surgery. The applicant’s brother accompanied the applicant on this trip home.

10. The applicant stated that he had provided evidence of these family medical conditions to the Department.

11. When asked for the date his wife had moved to her parents’ home, the applicant indicated that she moved there when he left India. However, I noted that when the applicant had completed his protection visa application, he had indicated his wife was living with the applicant’s family. The applicant couldn’t remember when she had moved but agreed it must have been after July 2017, adding that her parents lived close-by to his own family home and she had spent time between the homes before moving in with her parents. When I queried this asking if they lived in south Kerala, he replied they were in [Town 1], about 10 or 15 minutes away from the applicant’s own family home.

12. The applicant said that his wife, and father are doing well. However, his parents are ageing, and his father has developed diabetes. His mother sometimes experiences a pain in her arm.

13. I noted that, in my experience, it was unusual for an applicant for a protection visa to travel back to their homeland while the application was being considered. The applicant had returned to India not just once, but on 4 occasions. I explained these return trips were a concern to me given he claimed to fear serious or significant harm if he returned to India. His father, mother and wife were doing okay. There had not been a loss of life regarding the need for medical treatment required on those 4 occasions. I indicated that I was surprised that he had returned home. The applicant said that he and his brother had not told people that they were returning home. They went to the hospital to see the relevant family member but otherwise moved around. They did not stay in hotels. They sometimes stayed with his brother’s in-laws, who live about 6 hours’ drive away from the applicant’s family home.

14. I noted that the applicant had made a written claim of not being able to relocate safely anywhere in India to avoid harm he feared there. It seemed to me that he had returned to the place where he claimed to fear this harm. He had also stayed there an extended time each trip. I noted that although I needed to check my figures, it seemed that he had spent a cumulative time of over 270 days in India since applying for protection in Australia. It appeared to be behaviour not indicative of a person in fear of serious or significant harm.

15. Later in the hearing the applicant confirmed that he had not experienced any adverse issues during any of these 4 trips home. He said that they hadn’t ‘published’ to others that they would be returning there. They kept it quiet. They did not tell extended relatives who tend to gossip to others. It was a secret, and they did not involve other family members.

    Merchant Navy

16. The applicant said that he had worked in navigation operations in the merchant navy. He worked on ship for extended periods, usually a 7-to-9-month contract, then home for a month or so. He confirmed that he travelled to many different countries for this employment. When the applicant joined in July 2008, his brother was already employed in the merchant navy, but he could not remember when his brother started working for them. He agreed that his brother’s terms of employment were similar in contracted time on ship and then home between contracts.

    [Country 1] visa refusal

17. I asked the applicant about the evidence he had given to the delegate regarding a [Country 1] Visa refused in 2015. He said that he had been able to obtain transit visas for his employment. However, his family had wanted to travel to [Country 1] in 2015. This was after he had married. He wanted to go there for a honeymoon. He does not know why the visa was refused

    Applicant’s political profile

18. The applicant confirmed evidence given to the delegate that he has had little interest in Indian politics, apart from a passing interest in the Communist Party and Congress when he had been studying. He confirmed that he and his friends were paid by different political parties, including the BJP, to put up the banners. The applicant said that he does not use social media and has not it in the past. He has not commented publicly about politics either in India or in Australia. He has voted only on 2 occasions in Indian elections.

19. I referred to the delegate’s decision record which noted that his evidence was his focus had been on caring for his family. The applicant responded to these comments saying we don’t know when we going to die. There is one chance at life. He confirmed that he meant that he wanted to be responsible for his family.

    Political profile of applicant’s brother

20. I noted that the applicant’s earlier evidence was that his brother was already in the merchant navy when the applicant joined it in July 2008. Given this timing, I asked if his brother’s interest in Congress had been, at least, before July 2008. The applicant agreed this was the case. He also agreed that after joining the merchant navy his brother, like him, worked away from home most of the time returning home for short stays. He also agreed his brother had not been involved in politics during these trips home. However, the applicant remained unable to provide any details about the start and duration of the period before July 2008 during which his brother had been interested and involved in Congress.

21. I pointed out his brother’s interest in politics was a long time ago. If his brother had been involved with Congress, it had been at least more than about 17 years ago. I explained to the applicant that it seemed to strain credulity that animosity would exist to the applicant’s brother after this length of time, let alone to a looser connection, that of the applicant, who had never really been interested in politics. The applicant said that extended relatives and neighbours gossiped. They remembered his brother’s connection to politics. Most people in the area knew the family.

    2017 – claimed attack on bike ride home

22. I noted that the delegate had given the applicant many opportunities to discuss what had happened to him in India. The delegate had recorded that he had talked about one event in particular, which the delegate described as the ‘key’ event. This was in 2017, when the applicant claimed to have been attacked while riding his bike home. I asked the applicant if he could now remember when it had occurred, prompting him that had he had told me his brother left India in February 2017. The applicant agreed that it must have happened sometime between February 2017 and May 2017, after his brother left India but before the applicant left. He wondered aloud if it had occurred in March. He said that he was on his scooter after leaving prayers in the mosque. Where it happened was about 10 minutes from the mosque and about 5 minutes from his home. It was evening. He was travelling through a very dark, quiet area. It was known that RSS people could be there, but despite this, he used the route as it was a shorter trip home. Also, the main road home was not in good condition. He was stopped by one of them. Then he was pushed from his bike. The RSS people were drunk. They then attacked him with sticks and hurt his leg and his head. When he woke up, he was in hospital. Some of the local passers-by took him to the clinic. They must have recognised him and called his father to come.

1. I noted in making the decision, that the delegate had been concerned the applicant had attributed different reasons for this claimed attack. He initially claimed he had been recognised, and the attack occurred because of his brother’s past affiliation with Congress. However, later when the delegate pressed him for details of his claim that he had been threatened in India because he was Muslim, the applicant had attributed the reason for this key event to being Muslim. In response to these observations from the delegate’s decision, the applicant told me that he had been attacked for both reasons. He said that it became more difficult for Muslims after the 2014 elections when the BJP came into power. He said that the RSS people attacked him for a bit of ‘fun’. It had been an intentional attack.

2. When asked, during the hearing, about his clinic stay, the applicant made claims consistent with those he had made in writing with the protection application about the number of stitches required ([number]) and the number of days he had remained in the clinic ([number]).

3. The applicant told me although there probably had been some paperwork, he did not have any discharge documents from the clinic. He said that he had not been aware that he might need to submit these documents.

4. The applicant said that after this attack, his brother had told him that it was safer to come to Australia. Human values are protected in Australia.

5. In discussing his injuries during the hearing, the applicant indicated the wound on his foot that required stitches had been a long, open piece of skin. He offered to show me a scar on his foot.

6. I indicated he claimed to have been attacked with sticks when he was off his bike, so it was difficult for me to understand how he had sustained this type of skin cutting/slicing injury. It seemed more likely sticks would cause some sort of blunt force injury. The applicant said that as he was unconscious, so he didn’t know what had happened. They had these sticks, and they were very aggressive.

7. As to why the attack occurred, the applicant told me that he had been recognised because of his brother. They could see his face. I asked how this could be, given his description of the location being very dark, and he would have presumably been wearing a helmet. The applicant then replied that they knew the scooter. In the local community people know each other.

8. I noted that the delegate had found that his evidence about this attack on his bike was significantly vague and lacking in detail. The delegate was also concerned about the different reasons that he had given for the attack. The applicant said that he had been attacked. He said it is difficult to say sometimes. People can get a blank when they think about the past. People can be aggressive. They like to have power over another. They like to think, ‘I am King’.

9. I told the applicant that I may accept that he had sustained an injury to his foot or leg. However, if I was concerned about the credibility of his claims, I may conclude that the injury had come from an accident rather than the applicant being attacked, as he had claimed, by RSS people.

   Politics in India

10. I referred to independent information indicating that India has the largest democracy in the world. It is a robust democracy, and it is expected and accepted that Indian people will actively participate in politics. The applicant replied that everything had changed since 2014. It had become like a dictatorship. I noted that independent information indicated to the contrary: state and national elections met international standards for being free and fair. The applicant agreed but he said that the government was on a mission. People can’t participate any more.

    Verbal threats

11. I noted that regarding verbal threats, the delegate recorded that the applicant claimed to have received these during his time in India. However, the delegate also recorded that the applicant had not been overly clear on the extent of these verbal threats despite being prompted to on several occasions. During the hearing the applicant said he was insulted by the local RSS people. When I asked how often this happened, was it daily, weekly or monthly, he said it would happen every week. Someone would yell out something, religious based. He said he just ignored them.

    ACID ATTACK

12. I noted that the delegate had recorded that the applicant claimed that he was once almost attacked with acid but had managed to escape. The delegate considered the applicant had been significantly vague in this claim and had not been specific about when this had occurred or what had happened.

13. During the hearing, I asked the applicant if he could now remember when this claimed event had occurred. He could not remember despite my prompting with different events, but he agreed that it had happened sometime in the 9-year period before he left India. He said that walking home one afternoon. He saw people ahead with some sort of container and he ran away. There were 3 or 4 people. He ran into a relative’s house and then jumped over the fence. He was not able to provide any more details.

    Family home and father attacked

14. I noted that the delegate recorded that the applicant had claimed that a group of people most likely RSS or BJP had come searching for his brother and his family. They had physically assaulted his father. The applicant claimed that he was not home at the time he was overseas working for the merchant Navy. The delegate recorded in the decision that the applicant was prompted on a few occasions to recall when this incident occurred. However, he had difficulty recalling it. The applicant continued to have this difficulty during the hearing. He said his brother and he had been on a ship at the time. I indicated that it sounded serious if his father had been assaulted, and so I was surprised that he could not remember or have determined when this event had occurred. The applicant said that the politicians ignore events like this.

    Local area in Kerala - Muslims

15. The applicant said that around his house there were about 50% RSS people and 30% were normal people. I asked about the other 20%. However, the applicant said that he did not know about these people. He said that the RSS people use a particular known area and march around on it. He said that he normally would just avoid that area but sometimes it’s the easier way to go home.

16. I referred to the passage in the decision record where the delegate had discussed whether the applicant was claiming difficult experiences regarding his faith. (See above, page 9, [Muslim faith and verbal threats]) The applicant had spoken generally about the situation for Muslims rather than specific personal experiences. The delegate recorded that the applicant struggled to recall when he personally had experienced difficulty. He had initially indicated to the delegate he had not specifically been targeted as a result of his faith but later attributed the ‘key’ event attack to his faith. The delegate had also recorded that the applicant had said he had been verbally threatened many times, but did not expand further when prompted. I also referred to independent information (set out above, page 4-5) indicating that Kerala has a lower percentage of population of Hindus compared to other states in India. I also noted that Kerala prides itself on its religious diversity, as well as acceptance and tolerance of the 3 main religions: Hindu, Muslim and Christian. I noted independent information also indicates a very low level of communal violence in Kerala, relative to other areas of India. I also noted that information from the last census, albeit from 2011, indicated that the population in his home area ([Suburb 1]) was 66.7% Muslims and 31.4% Muslim.[27]  Muslims were in the majority there. The applicant agreed with what I said. However, he added that his hometown was to the north of Kerala. And there were people coming down from the north from the RSS. He said it was changing since 2014. I also referred to information about [Suburb 1], also taken from the 2011 census.[28] It indicates that 66.7% of the population are Muslim. And 31.4% of the population are Hindu. I noted that this independent information was contrary to what the applicant claimed about being in the minority as a Muslim. The applicant acknowledged what I had said. He said his area was near the border. People are coming south. They are always trying to destroy the country. This has happened since 2014.

    [27] [Source deleted.]

    [28] [Source deleted.]

    OTHER CLAIMS

17. I noted that the delegate had recorded that the applicant had provided a set of written claims which he had not discussed during the interview despite being prompted. I asked the applicant about some of these claims. I noted that that there did not seem to be any support for his claim of communal violence in his hometown in independent information available. If it had occurred, I would have thought it would be on social media. Independent information indicates that social media is widely used in India (see above, page 3). The applicant said the government controlled the social media. However, I noted that independent information available did not support this claim. The applicant said that during elections some of the BJP people would come into the area. He agreed with me about the diversity and acceptance of the different religions in Kerala. However, he added that the central government could change that and push back on Kerala.

18. I referred to the applicant’s written claim about Muslims not being able to eat beef. I referred to independent information that indicates that there are no such regulations applicable in Kerala, and that the political parties in Kerala emphasised that eating beef was a personal choice. The applicant acknowledged this. I also noted that independent information does not support his written claim that Islamic functions are disallowed. To the contrary, independent information indicated that Kerala was very accepting of its differing religions’ practices.

    Attack in January 2017

19. The applicant confirmed his claim that after he completed his shipping contract [in] January 2017 his parents picked him up from the airport. On their journey home they passed a tollgate on the highway and some BJP workers surrounded the car. They hit and damaged the car. His mother was hit by broken glass. They were taken to the hospital. This happened because of the applicant’s brother’s connections to Congress. The applicant said this had happened near the Kerala border. Family members had gossiped and let the RSS know that the applicant was returning home. I indicated that I had difficulty making the connection of this claimed event to the applicant’s brother’s claimed connection to Congress so many years previously.

20. I asked applicant why he had not fled India straight away after this incident, given he claimed to be frightened about it. Instead, he had waited until May 2017 to leave. The applicant said that he had had another attack, on his leg, after that. I acknowledged that he had made this claim but asked why he had delayed leaving, given this claimed earlier attack, in January 2017. The applicant said that he did not know about that.

21. I noted the applicant claimed it had been dangerous for him to stay in his hometown. I also noted his claims that his family and the family home had also been targeted because of the politics of his brother. Given this, why had he left his wife at the family home in India. The applicant said that he did not know what he intended to do. He did not have any idea. He would try and bring his wife.

22. The applicant confirmed that his mother, his father and his wife and children had experienced no adverse issues following the applicant’s departure from India in May 2017.

23. I noted that by the date the applicant had arrived in Australia his brother had already applied for protection. I asked, given that, why had he not applied for protection earlier than July 2017? The applicant indicated that he had been on a tourist visa which had remained current for several months after he arrived.

24. I told the applicant that I understood that he liked living in Australia and understood that he was able to earn money to send to support his wife and his family. I asked the applicant why he feared to return to India. The applicant said that he considers that human value is appreciated here. In 2014, everything changed when the BJP came into power. There was a different view towards Muslims. I noted that he was expressing a general reaction and asked if he had personal reasons to fear of harm if he returned to India. The applicant said that he had been attacked 2 times. Once on the leg, in the bike incident in 2017. The other incident had been in the car in January 2017. Maybe he would be recognised if he returned. He is [age] and it would be difficult for him to return as an outsider. I noted that he is relatively young, had been employed in different positions and had different qualifications and skills. I considered he would be able to secure employment in India to support himself and his family. The applicant replied that the different skills are not respected in India. India does not value people like Australia does. He said it would be okay if he returned in 5 or so years when he is older because people would not be concerned with him.

    FINDINGS AND REASONS

    Nationality

25. Based on his Indian passport, I accept the applicant is a national of India and consider India is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.

    Consideration of applicant’s claims

26. When assessing claims made by an applicant, I need to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicant. When doing so, I am aware of the difficulties faced by an applicant for a protection visa, including issues relating to nervousness and anxiety in an interview or a hearing, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all their claims. I am also aware that if I make an adverse finding in relation to a material claim made by the applicant, but I am unable to make that finding with confidence, I must proceed to assess the claim on the basis that it might possibly be true. However, in considering whether all the statutory elements are established, I am not required to accept uncritically any, or all, of the allegations made by an applicant.[29] Further, I am not required to have rebutting evidence available to me before I can find that a particular factual assertion by an applicant has not been made out.[30]

    [29] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

    [30] Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348.

27. The applicant claims to fear harm from the BJP and the RSS in India because his brother was a Congress member in their hometown in Kerala for some time before 2008. His claims of past physical harm relate to 2017 before he left India in May 2017. He claims that in January 2017 on the way home from the airport, the family car attacked by BJP or RSS people at a highway tollgate, his mother was injured by broken glass, and they were taken to hospital. He also claims that on an unspecified date in 2017, possibly in March, he was attacked by BJP or RRS people in his hometown and was hospitalised as a result. He claims that on a further unspecified date sometime between 2008 and 2017, while he was working for the merchant navy, the family home was damaged, and his father was attacked. He also claims an attempted acid attack on an unspecified date during the 9-year period before leaving India. He also claims to fear harm as a Muslim.

28. Given his consistent evidence, and no evidence to the contrary, I accept the applicant is Muslim and his hometown area is [Suburb 1] in Kerala. I also accept that he completed high school studies in [year], trained for the merchant navy in Mumbai in [year], and worked in it in navigational operations from 2008 until 2017. I accept that he was generally away from his hometown for around 7-9 months at a time during this employment and would return home for a month or so between shipping employment contracts. I also accept that the applicant travelled to many different countries in the 9 or so years he was employed in the merchant navy, including Australia. I accept that the applicant was not, and is not politically active in India, (apart from a passing interest in the Communist Party and the Congress party while schooling). I also accept that he has not been politically active in Australia. I accept that he was not and is not a member of an Indian political party. I accept he is not a member of a religious organisation in India or Australia. I accept that his focus has been on his career and earning money to support his family. Given his evidence about the residence of his parent’s in-law was spontaneously given, I accept they currently live in [Town 1], together with his wife and children, close-by his own family home.

29. However, for the following reasons I do not accept the that the applicant faces a real chance of serious harm or a real risk of significant harm for any reason claimed on return to India.

30. Despite claiming to fear returning to India and also claiming that the BJP (or RSS) would find him no matter where he was located there, the applicant has returned to India for extended periods on 4 occasions since applying for the protection visa:

    ·Departed Australia [in] July 2018, arrived back in Australia [in] September 2018 (approximately 53 days in India).

    ·Departed Australia [in] May 2019, arrived back in Australia [in] July 2019 (approximately 53 days in India).

    ·Departed Australia [in] May 2022, arrived back in Australia [in] August 2022 (approximately 93 days in India).

    ·Departed Australia [in] April 2024, arrived back in Australia [June] 2024 (approximately 70 days in India).

31. The applicant claims that each of these return trips was prompted by a medical emergency variously of his wife (2018), father (2019 and 2024), and mother (2022). When I expressed my surprise that he would have returned to India even on one occasion, the applicant claimed that he stayed at the hospital when he returned to his hometown and then he was in hiding or on the move the rest of the time. However, I consider that a cumulative stay of around 270 days there since applying for protection is not indicative behaviour of a person in fear of returning to India. While I accept that it is possible his father, mother and wife have faced various medical conditions over the past 7 years, they are all doing reasonably well according to the applicant. I consider the applicant has exaggerated his family’s health incidents in attempting to justify these 4 trips back to India. Further, and more significantly, I do not accept that a person claiming to fear serious or significant harm, and to be unable to relocate anywhere there to be safe, would have returned to India on 4 separate occasions, particularly given the extended period he remained there on each visit. Given this I do not accept that the applicant genuinely fears returning to India as he claims.

32. The applicant relies on his brother’s claimed involvement with Congress in making his claims for protection. However, he has been concerningly vague about this claimed involvement both regarding its duration and starting point. With some prompting he acknowledged it had been sometime before 2008 and that it had not continued after then. However, despite the long gap in time, the applicant relies on this involvement for attacks he claims took place in 2017, the year he left India. The claimed political involvement of the applicant’s brother was at least some 11 years previously. It strains credulity that animosity would continue for this length of time, especially given independent information which indicates that India is a robust democracy, within which it is understood that people participate in politics and politics is hotly contested. Political discourse can be passionate and vigorous, and it is usually peaceful. Further, I find it curious that despite regular returns to his hometown from 2008 onwards, throughout the period he was working for the merchant navy, it was only from the beginning of 2017 that the applicant claims there were physical attacks on him due to his brother’s pre-2008 involvement in Congress.

1. It also concerns me that the applicant remains unable to provide a date in 2017 for the ‘key’ event he had relied on in making his claims for protection in the interview. Although, during the hearing, with some prompting by me using other events as markers, he did suggest it may have been in March. This claim relates to when he says he was stopped on his scooter by drunk BJP (or RSS) people. During the hearing he stated that he was not outside the mosque when this event occurred. He said that he about 10 minutes’ ride from it and about 5 minutes from home. The hearing tape will demonstrate that he remained hesitant and vague about the date, despite the delegate flagging this as an issue of concern in 2019. I am also concerned that the applicant initially claimed that his face had been recognised, and this is why he was stopped. When I pointed out that he was claiming it happened in a dark location and presumably he would have been wearing a helmet, making face recognition difficult, the applicant said that it was his scooter which had been recognised. Further, during the hearing, the applicant claimed that he was beaten with sticks and the injury he sustained required [number] stitches. He indicated that the stitches were required to affix a long flap of skin on his foot (or leg). When I pointed out that the type of injury he claimed did not seem to be consistent with the weapons used, the applicant said they were particular type of sticks, and he had been unconscious when it happened, and was told about it later. I have considered the applicant’s evidence on this issue. I accept that the applicant may have a scar on his foot or his leg. However, because of all my concerns outlined above, I do not accept that the applicant was attacked by BJP or RSS people or that he became unconscious as he claims. It follows that I do not accept that he attacked because he was recognised and connected to his brother or because he is Muslim, or that his father made a report to the police, which was not acted on. Further, I consider that the applicant’s evidence on this issue reflects adversely on his credibility generally regarding his other claims for protection.

2. I am also concerned about evidence given by the applicant about the family home being attacked by BJP workers looking for the applicant and his brother. Again, the applicant could not remember during the Department interview, when this claimed event occurred. He continued to have this problem during the hearing, despite the delegate already flagging it as an issue of concern. The applicant claims he was on a ship at the time, implying this is why he could not recall when it occurred. I have considered the applicant’s evidence in the interview and the hearing. I would have thought that if the applicant’s father had been assaulted and hospitalised, as the applicant claims, a time frame for this serious event could have been recalled or even estimated. I do not accept that this attack on the family home and on his father occurred. It follows that I do not accept the family submitted a case against the BJP which was unsuccessful because the BJP are in power. Further, I consider that the applicant’s evidence on this issue reflects adversely on his credibility generally regarding his other claims for protection.

3. I am also concerned about the evidence the applicant has given about the undated attempted acid attack. The delegate recorded that the applicant had been significantly vague, not specific about when this had occurred or about what had happened. While the applicant continued to be unable to recall when this event had occurred within a 9-year period before he left India in 2017, he was able to provide more details about the claimed attempted attack. He said he had been on his way home one afternoon. He saw 3 or 4 people ahead with some sort of container and he ran away into a relative’s house and then jumped over the fence. He was not able to provide any more details. Given the paucity of the applicant’s evidence in support, particularly his inability to recall or even estimate when this claimed event occurred, I do not accept this claim of attempted acid attack. Further, I consider that his evidence on this issue reflects adversely on his credibility generally regarding his other claims for protection.

4. For completeness, I make the following findings. Given my concerns about the credibility of applicant’s evidence, set out above, I do not accept that the applicant’s brother was a Congress cadet in a BJP stronghold or otherwise. I do not accept that the applicant was targeted because of his brother’s role or perceived role with Congress prior to 2008 (or at any time). I do not accept that at high school the applicant faced many issues of communal violence because his brother, father and family were targeted by the BJP or the RSS. I do not accept that the applicant’s father was attacked or injured, or the family home damaged by BJP (or RSS) at any time, because of the brother of the applicant’s political activity, perceived political opinion or for any other reason. I do not accept that there was lots of communal violence in the applicant’s hometown or that the applicant and his family lived within a BJP stronghold. Nor do I accept that the applicant joined the merchant navy in 2008 to stay away from the violence in his hometown. I do not accept that the applicant was verbally threatened by the BJP or RSS on multiple occasions. I do not accept that there was an attempt by BJP or RSS people to attack the applicant with acid because of his brother’s previous Congress connections. I do not accept that the applicant was attacked by BJP or RSS people on his way home from a mosque in 2017. No do I accept his parent’s home was attacked by BJP or RSS workers due to their other son’s affiliation with Congress. I do not accept that the applicant and his parents were targeted by BJP workers at a highway tollgate on the applicant’s return to India in January 2017. I do not accept that at some unspecified time the applicant’s home was looted when he came out of his home, people started hitting his car, bike, and damaging his property. I do not accept that the applicant is always being attacked by BJP or RSS people. I do not accept his claim that the BJP harmed him because he tried to lodge a complaint about them.

   Other claims

5. The applicant made the written claim that he was with the Congress party because his brother was a Congress cadet. However, I do not accept this claim as he has consistently and emphatically claimed in the interview and the hearing to have little if any interest in politics and is not and has not been a political party member.

6. The applicant implies that politics in India is religiously aligned. He claims that most people are Hindu and they tend to support the BJP. While this may generally be the case, independent information indicates that there are many nuances to India’s robust democracy. Religious voter blocks are diverse groups. For example, although many Muslim voters support Congress, there are Muslim voters supporting other parties, including the BJP and these other parties actively seek their votes. The applicant claims that Muslims are a minority group in his hometown area and face trouble there as a minority group; they are not allowed to involve themselves in Islamic functions. However, as I pointed out to the applicant, this claim is not supported by independent information, which indicates that Muslims are a higher percentage of the population in [Suburb 1]. Further, the claim of lots of communal violence in his hometown area is not supported by independent information available, which also indicates Kerala prides itself on acceptance of religious diversity, harmonious acceptance. When I pointed this out to the applicant, he acknowledged it but added trouble comes from people visiting from the northern areas of India. However, this is not reflected in the independent information available which indicated a low level of communal violence in Kerala irrespective of northern visitors. Given my concerns about the applicant’s credibility, set out above, and the independent information indicating that the Kerala population is relatively religiously diverse, accepting and tolerant, I do not accept the applicant’s claim that he fears harm in his hometown because he is Muslim. Nor do I accept the implied claim that his religious practice in his hometown is restricted by the BJP party or anyone else. I do not accept his written claims that Muslim women there are disturbed as a minority group or that stones are pelted on the local praying halls.

7. Media sources and some human rights commentators claim that anti-Muslim sentiment is rising in India amid growing polarisation. However, independent information available indicates acceptance of the different religious groups in Kerala, a higher percentage of Muslims living there and the low level of communal violence there. Given this and my concerns about the credibility of the applicant’s claims set out above, I do not accept the applicant’s claims of local communal violence regularly breaking out and that Muslims and other minority groups live in fear in his hometown. While I accept that the applicant may have been verbally insulted as a Muslim from time to time, I do not accept that this amounts to serious or significant harm.

8. While there have been attempts by the Indian central government to impose restrictions on cattle slaughter, these were strongly opposed in Kerala, with public protests and political resistance ensuring that beef remains widely available. Beef consumption is normalised in Kerala across the various religious communities. Given this, I do not accept the implied claim that the applicant is not allowed to eat meat in his hometown.

   Does the applicant satisfy the refugee criteria for protection?

9. Independent information indicates that communal violence and anti-Muslim rioting can occur from time to time in India. However, it also indicates that such violence is relatively rare in Kerala. Given this, and all my concerns about the applicant’s evidence noted above, and my rejection of his claimed involvement in the Congress party before 2008, I do not accept that the BJP, or the RSS have any interest in the applicant because of his brother’s involvement or perceived involvement with Congress in 2008, or at any time. Nor do I accept that the BJP, the RSS have any ongoing adverse interest in the applicant because he is Muslim. I have also rejected his claims of the family home being damaged, his father attacked, the family car attacked, and the applicant being attacked or threatened. I am not satisfied the applicant is of any interest to the BJP or the RSS if he was to return to India now or in the reasonably foreseeable future.

10. I have rejected the applicant’s claims that the applicant was or is threatened or targeted because of his brother’s involvement in Congress in the period prior 2008 or at any time, because of his Muslim faith, or for any other reason. I am not satisfied the applicant faces a real chance of serious harm from the BJP or the RSS or anyone else for this or any other reason.  Given these findings and this conclusion it is unnecessary to address the issue of whether the harm feared by the applicant is for a specified reason set out in s 5J(1)(a).

11. For the above reasons I am not satisfied the applicant meets the requirements for recognition as a refugee as defined by s 5H of the Act and I am not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Does the applicant satisfy the Complementary protection criteria for protection?

12. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). Having rejected the applicant’s claims of feared harm, I am not satisfied that he is at risk of adverse attention or interest from BJP or RSS people for reasons he claims, i.e., his brother’s political involvment or because of his Mulsim faith on his return home. I find there is no basis, on the evidence, to conclude that the applicant faces a real risk of arbitrarily deprivation of his life; or that the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to India. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

13. 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 the criterion in s 36(2).

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Hearing: 1 May 2025

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

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

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    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.

    …