2003331 (Refugee) - [2025] ARTA 1880

2003331 (Refugee) [2025] ARTA 1880 (25 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2003331
Tribunal:Kathleen Timbs
Date:25 August 2025

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

Statement made on 25 August 2025 at 10:55am
CATCHWORDS
REFUGEE – protection visa – India – political opinion – local political party activity – political leader friend murdered – inconsistent details – return visit without harm – false claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
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

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). The Tribunal is to continue AAT proceedings not finalised at that time and is taken to have done anything in relation to those proceedings done by the AAT before 14 October 2024.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant [the applicant] a protection visa under s 65 of the Migration Act 1958 (the Act).
[In] September 2016, the applicant arrived in Australia from India.
On 17 October 2016, the applicant applied for the visa.
On 4 February 2020, the delegate refused to grant the visa.
On 12 February 2020, the applicant applied for review of that decision by the AAT.
On 25 June 2025, the Tribunal heard the application with the help of an interpreter in the Tamil and English languages. The applicant appeared in person to give evidence and present arguments.
RELEVANT LAW - CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are in s 36 of the Act.
To be granted the visa, an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they must be either a person in respect of whom Australia has protection obligations because they meet the refugee criterion or complementary protection criterion, or they must be a family member of a person who meets one of those criteria and that person holds a protection visa.
The Tribunal must affirm the decision under review if it is not satisfied that the applicant meets one of those criteria.
EVIDENCE AND MATERIAL CONSIDERED BY THE TRIBUNAL
The Tribunal considered the Refugee Law Guidelines and the Complementary Protection Guidelines’ prepared by the Department of Home Affairs and the Country Information Report for India published by the Department of Foreign Affairs and Trade (DFAT) on 29 September 2023.
The Tribunal also considered:
·relevant documents provided by the Department, including the applicant’s visa application, a supporting statement, an audio record of an interview with the delegate, and the delegate’s reasons for decision;
·a Pre-hearing Information Form completed by the applicant provided to the Tribunal on 28 January 2025;
·oral evidence and submissions from the applicant provided to the Tribunal at hearing; and
·additional country information discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant provided an Indian passport to the Department. It examined it and found that it was genuine. On that basis, the Tribunal accepts the applicant is a citizen of India. It is satisfied India is the receiving country for the purposes of s 36 and s 5J.
Background
The applicant was born in Tamil Nadu in [year]. He told the Tribunal he grew up in a farming family in a village near [Town 1] in Tamil Nadu. His parents, wife and [children] are all living in Tamil Nadu in his home area.
The applicant completed eight years of school and has then worked on the family land or as [an Occupation 1]. He has no trade or other qualifications.
Refugee assessment
The criterion in s 36(2)(a) of the Act is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister (or the Tribunal in place of the Minister) is satisfied Australia has protection obligations because the person is a refugee.
Section 5H(1) of the Act provides that a person is a refugee if he or she is outside their country of nationality and is unable or unwilling to avail himself or herself of the protection of that country because of a well-founded fear of persecution. Under s 5J of the Act, a person has a ‘well-founded fear of persecution’ if:
·     the person fears persecution;
·     there is a real chance that the person would be persecuted;
·     the real chance of persecution relates to all areas of the receiving country;
·     the persecution involves serious harm and systematic and discriminatory conduct; and
·     the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion.
Protection claims
The applicant claimed in a statement supporting his visa application (the statement), delegate interview, and at hearing that he would be harmed if he returned to India because of his political activity and association with a local politician killed by political rivals.
The applicant also claimed in his statement that he would be harmed if he returned to India because he is known to be a supporter of the Liberation Tigers of Tamil Eelam (LTTE).
Is there a real chance of harm?
The applicant told the Tribunal that, in his mid to late teens, he joined the Dravidar Munnetra Kazhagam (DMK), a political party based in Tamil Nadu. He said he originally joined because his father was a member and that he was a very active member until he left India in 2016. He said he worked closely with [Leader A], a local party leader who held senior positions in local government. He said he travelled from village to village to look into problems such as water or electricity and he then referred any issues to [Leader A]. He said this was voluntary charitable work that he did often and he travelled with [Leader A] and other party members to campaign during elections and for recruitment activities. He said he worked closely with him and, when he spoke to the delegate, he described him as a friend.
The Tribunal noted inconsistencies with his evidence at hearing and his evidence in a statement provided with his visa application. He told the Tribunal he wrote the statement and gave it to his solicitor for translation. The Tribunal noted the statement said he was a member of the DMK from 2007, rather than when he was a teenager, and that he had left the DMK at an unspecified date because he was denied the opportunity to contest a parliamentary seat. The applicant did not explain the inconsistency and told the Tribunal he was selected to run for a local government position but was unsuccessful.
The Tribunal noted the applicant told the delegate that he left the DMK in 2010 and, while he continued charitable work in the villages, he ceased any involvement in politics. The applicant said he ‘did not leave the party completely’ but was not actively involved. However, whenever he was called, he attended recruitment activities and promotion of the DMK at elections. He did not provide an explanation for the inconsistency in the evidence to the delegate and the Tribunal.
The applicant said he had no trouble with the police in Tamil Nadu because of his political activity. When asked about an instance of harassment by police described in the statement, he said that happened to his father. He did not explain why his statement referred to an instance of harassment of him.
The applicant said that sometimes the DMK controlled the local government and at other times the rival All India Anna Dravidar Munnetra Kazhagam (AIDMK) was in power. He said the DMK had grown in influence and size in the local area by 2016 under the leadership of [Leader A] and this caused conflict with the AIDMK. He said there were arguments and brawls in the local area and that [Leader A] was murdered [on date]. There are two newspaper reports available that confirm the applicant’s evidence of the murder of )[Leader A – report details deleted].
The applicant said he believed the AIDMK murdered [Leader A] because of his role in the rise of the DMK. However, he said no one was charged and he is unaware of any direct evidence of the motive for his murder. The available reports do not specify a motive and there are no later available reports about the investigation into it.
The applicant said he is known as a close associate of [Leader A] and he was worried ‘all the time’ after the murder that the AIDMK would murder him. He said he came to Australia a few months later to ensure his safety. The applicant said nothing happened to him before he came to Australia but he said he was always afraid. He later said the AIDMK did not directly threaten him before he came to Australia but they threatened his father because of his son’s DMK membership. The Tribunal asked why the AIDMK did not directly threaten him and he said they believed he would listen to his father.
The applicant told the Tribunal that he does not know of any other DMK member who has been harmed since the murder. He said there was no need for further violence after the death of [Leader A]. However, he said anything might happen to him because of his association with [Leader A].
The Tribunal noted the applicant returned to India for three months in 2024. The applicant said he had to return because his father had [Medical condition 1]. He told the Tribunal he had not suffer any harm because he did not leave the family home except to Puducherry to the hospital and that no one saw him because he travelled by car.
The applicant was a poor historian and did not give evidence in a straightforward manner. In addition, he provided inconsistent detail about his membership of the DMK in his written and oral evidence to the Department and to the Tribunal. It prefers the evidence he provided under oath to the Tribunal at hearing wherever inconsistencies arise as to the nature of his involvement with the DMK and [Leader A]. Despite those inconsistencies and the applicant’s failure to explain them, the Tribunal accepts he was a member of the DMK from his mid-teens and was associated with [Leader A] who was murdered [on date].
The applicant’s evidence is not strong but the Tribunal gives him the benefit of the doubt and accepts he left India because he had a genuine fear for his safety because of [Leader A’s] murder. It does not follow that any current fear of harm is well-founded and that there is any real chance of harm to the applicant if he returned to India at this time.
The DFAT report is silent on the risk of harm to those who are politically active in Tamil Nadu. However, the Tribunal has found that [Leader A] was murdered and it has reports of murders of other party leaders murdered since [year] (for example, see [report details deleted]). However, on the applicant’s evidence at hearing, while he continued to work with [Leader A] on practical matters, he ceased significant involvement with the DMK some time before [Leader A’s] murder. He did not run for election, attended only when called on, and did not suggest he held office or had any kind of leadership role. There is nothing to suggest he was a threat to rival politicians when he left India and he has had no role in the DMK since 2016 when he came to Australia. The Tribunal suggested that it is unlikely political opponents would harm the applicant in those circumstances and he responded that he ‘cannot be certain’ of his safety and that ‘anything might happen’. In the Tribunal’s view, the assertion of a chance of harm to him in his home area is remote and speculative rather than having any substance. In the circumstances it finds there is no real chance of harm to him if the applicant returns to his home area because of his past political activity.
At hearing, the Tribunal noted the applicant claimed in his written statement supporting his visa application that he was at risk of harm because of his support for the LTTE. He told the Tribunal this was not correct and resiled from that claim.
The applicant has not claimed he would be harmed if he returned to India for any other reason.
Conclusion
For the above reasons, the Tribunal is not satisfied there is a real chance of harm to the applicant if he were to return to India. It follows he is not a refugee in accordance with the definition in s 5H of the Act and does not satisfy the criterion in s 36(2)(a).
Complementary protection criterion
A person who is not a refugee may satisfy the criterion for a protection visa in s 36(2)(aa) if the Minister (or the Tribunal in place of the Minister) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
The Tribunal has found above that there is no real chance of serious harm to the applicant if he were to return to his home area in India. For the same reasons, it finds there is no real risk of significant harm in the same circumstances. It follows he does not satisfy the complementary protection criterion in s 36(2)(a).
CONCLUSIONS
The Tribunal has found the applicant does not meet the refugee and complementary protection criteria in s 36(2)(a) and (aa). It has no evidence to suggest he is a family member of any other person who satisfies those criteria and, in that case, he does meet the criteria in s 36(2)(b) and (c). He does not satisfy any of the criteria for a protection visa and the Tribunal will affirm the decision under review for that reason.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kathleen Timbs
General Member
Date of Hearing:  25 June 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.
…