2010140 (Refugee) - [2025] ARTA 1963

2010140 (REFUGEE) [2025] ARTA 1963 (5 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2010140
Tribunal:General Member D. Gordon
Date:5 September 2025

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

Statement made on 05 September 2025 at 3:29pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – singer of political song – applicant and brother extorted, threatened and assaulted and studio destroyed – brother applied for protection in another country – continuing threats to family – uncorroborated claims – now married to New Zealand permanent resident – unable to be sponsored there without passport, which embassy will not renew unless protection claim withdrawn – applicant’s and wife’s responsibilities to take necessary administrative steps – not strict right but broader right – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ADJ20 v MICMSMA [2021] FCCA 2024
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMIA v Lay Lat [2006] FCAFC 61
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 124 ALR 265
SZTOG v Minister for Immigration [2015] FCCA 180
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 22 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of India, applied for the visa on 15 March 2019.
The delegate refused to grant the visa on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicant had a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant would be persecuted on account of their race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicant was not a person in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their country of nationality, there is a real risk that the applicant will suffer significant harm.
Relevantly the Delegate found that the applicant’s claims for protection were not credible.
The applicant was aggrieved by the decision of the Delegate and sought merits review before the Tribunal.
The applicant appeared before the Tribunal on 27 August 2025 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:
a.The refugee criterion in s 36(2)(a) of the Act; or
b.The complementary protection criterion in s 36(2)(aa) of the Act; or
c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non-citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
COUNTRY OF NATIONALITY
The Tribunal finds the applicant’s identity and nationality are confirmed by their passport and recorded personal particulars.
The Tribunal finds that the applicant is a citizen of India, which is also their receiving country for the purpose of their protection claims and assessments.
THE PROTECTION VISA APPLICATION BEFORE THE DEPARTMENT
The Tribunal has before it the protection visa application form lodged by the applicant.
The applicant, in their protection visa application form states they would be persecuted if returned to India as he had received threats of serious harm and death, and his persecutors are politically connected and influential. He could have a case fabricated against him.
THE MERITS REVIEW APPLICATION BEFORE THE TRIBUNAL
The Tribunal has examined the applicant’s merits review application and the supporting documents on the file.
These materials filed with the Tribunal updated his claim to state that he had made music in Punjab which angered his persecutors and caused them to make threats of serious harm against him. His brother who was his musical partner was assaulted also and had fled to [Country] and sought protection there. He was so fearful for his safety that he did not return for his mother’s funeral last year. His persecutors demanded 2 million Indian rupees and destroyed his recording studio.
THE HEARING
The applicant attended the hearing and gave their evidence as follows.
The applicant stated he presently was [Age] years old.
He was born in [City], Punjab in India.
He has one sister and three brothers. One brother had died of a heart attack. He has two living brothers.
One of his brothers is out of Punjab. He sometimes lives in Haryana and sometimes he lives in Delhi. He hardly came to Punjab. He only came for their mother’s funeral in 2024.
His father lives in Punjab. He had a small shop but now he did not run that. His brothers help him.
One of his brothers lives in [Country]. He has been in [City] since 2022 or 2023.
His sister is married and living in Punjab.
The applicant stated he only studied up to year 6.
After schooling, he learned to drive a [vehicle] in Punjab in around 2010 or 2011.
He got married last year to a girl who is from New Zealand and is a permanent resident of New Zealand. She comes every few months to visit him and stays for 1 to 2 weeks.
His wife in New Zealand was not able to sponsor him as he was not able to renew his Indian passport as the embassy in Australia refused to give him a new passport unless he withdrew his claim for protection.
The applicant proceeded to discuss his claims for protection.
He said he came to Australia in November 2017.
He was receiving threats due to a song he did. He did a song, and he started getting calls that his persecutors needed 20 lakhs from him and to stop doing the songs or they would kill him.
The applicant said that these days singers get threatened for money. He got scared so he came to Australia.
He said his two brothers also felt threatened so they both left Punjab.
His younger brother fled to [Country] and is seeking protection there.
His other brother lives out of Punjab.
The applicant stated that his mother died because of these issues.
He could not pay the 20 lakhs demanded of him.
He did not have work rights in Australia, and he relies on the kindness of friends and the local Indian community.
The Tribunal asked the applicant to provide more evidence about his claims.
The applicant stated his brother was beaten up so he fled to [Country].
That his mother was very stressed, and she died due to stress, she got paralysed and she died as she was worried their family was separated.
The applicant said he did not want to go to India and sought permanent residency in Australia.
The Tribunal advised the applicant that it needed to discuss the DFAT Country Report for India and issues around relocation within India.
The Tribunal referred to the DFAT Country Report for India and advised the applicant that the country information suggested that people could safely relocate within India.
The applicant said he could not live in another state as his face was familiar, and he was a singer. He would not be able to relocate as he could be easily recognised.
The Tribunal asked about his brother who was out of Punjab and was in Delhi and Haryana and was safe.
The applicant stated that regarding his brother in India, that his brother’s face was not as recognisable as his and he was not involved in the music business the way he and his brother in [Country] were.
That his younger brother in [Country] was also recognisable as he worked in the music business with him and booked his shows.
The Tribunal raised a concern that the applicant’s claim for protection may not be credible.
The applicant said his claim was true and he came to Australia to save his life.
The applicant said his claim is genuine.
That his family said he should stay away.
The applicant said his persecutors have political connections, so the police did not help.
He was hiding in Australia for a year.
The Tribunal asked the applicant why he did not provide such details in his written protection claim with the Department or update his claims whilst at the Tribunal.
The applicant said his English was not good and so he did not write down his claims fully.
The Tribunal said to the applicant that he had a migration agent lodge his claim so his agent would have filled out his protection visa application form.
The Tribunal said that by not providing the details of his protection claims as stated at the hearing in the protection visa form or updating the Tribunal as the matters arose, it may cause the Tribunal to not believe the claim.
The applicant stated he did not know he could update his application.
The Tribunal asked the applicant to give his evidence further step by step.
The applicant said his brother was beaten up in 2020 or 2021. Money was demanded. They asked for 20 lakhs.
The applicant said he started making music in 2013 or 2014.
That he started getting threats about his music in January or February 2017 when he was in India.
He was threatened to stop his singing. That he started getting threats after his song “[Title]” came out. They said he was not wearing a turban, and he was singing about Sikhs. That he should quit his singing and not hurt people’s feelings.
They were threatening him, and they had a scuffle, and they beat him up and he also beat them up and they got angrier and more threats started coming.
That when he came to Australia, they started threatening his family and asked for money or they would kill him if he returned to India. This happened a few days after he arrived.
That when they beat up his brother in 2020 or 2021, they asked for 20 lakhs and if this was paid, the applicant could return and live in Punjab.
The Tribunal raised its concerns again about these matters not being initially put in the protection visa application before the Department and not further being updated as new matters arose at the Tribunal. That this may suggest the claim is not credible. The applicant said he did not understand he had to say all this and that his agent did not advise him.
The applicant said his claim was true.
The applicant said he and his brother in [Country] were more recognisable. That his brother out of Punjab was not as recognisable. The Tribunal said that they were all brothers, and the persecutors would know all three of them. The applicant stated that the persecutors were from Punjab and from different places.
The hearing concluded. The applicant had no further evidence to give.
COUNTRY INFORMATION
The Tribunal refers to relevant parts of the DFAT Country Information for India which provides relevantly as follows.[1]
[1] DFAT Country Report for India – 29 September 2023.
[2.11] India ranked 85th out of 180 countries in Transparency International’s 2021 Corruption Perceptions Index, which measures public perceptions of corruption. GAN Integrity notes ‘high corruption risks’ with ‘widespread’ bribery and ‘especially prevalent’ corruption in judiciary, police and public services.
[5.4] The Constitution of India devolves responsibilities for police and public order to the states. According to sources, many Indians will choose not to contact the police, even if they are victims of crime. The 2019 Status of Policing in India Report found that two in five police officers surveyed said that people were hesitant to rely on them. The 2018 version of the same report found that only one in five of more than 15,000 people surveyed had recent contact with the police, and those that did were more likely to be male and wealthy. Those who contacted police may well have paid a bribe for the police to take action.
The DFAT Thematic Report for Punjab provides as follows.[2]
[2] DFAT Thematic Report for Punjab – 7 December 2016.
[5.1] The Punjab police force is a state-run force with around 76,000 personnel. Multiple credible sources—including from civil society representatives, journalists, lawyers and members of the diplomatic corps—told DFAT that Punjabi police capacity is very low, particularly in investigative capacity, and the police have a poor reputation, with high levels of corruption. These sources reported that police are involved in the drug trade, as well as extortion of suspected LGBTI people and incidents of extra-judicial killings, known as ‘fake encounters’ (see ‘Arbitrary Deprivation of Life’, above). There are also perceptions of political interference in policing, with reports of large scale movement of senior officers following changes in government.
The Tribunal turns to assessing the claim for protection.
APPLICABLE LEGAL PRINCIPLES IN PROTECTION ASSESSMENT
The Tribunal sets out the applicable legal principles in assessing protection claims.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out, per MIEA v Guo & Anor.[3]
[3] (1997) 191 CLR 559 at 596.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision maker to establish the relevant facts, per Yao-Jing Li v MIMA.[4]
[4] (1997) 74 FCR 275 at 288.
A decision maker is not required to make the applicant’s case for him or her, per Prasad v MIEA.[5]
[5] (1985) 6 FCR 155 at 169-70.
It is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts, per Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat.[6]
[6] [2006] FCAFC 61 at [76].
The Tribunal is not required to accept uncritically any and all claims made by an applicant, per Randhawa v MIEA.[7]
[7] (1994) 124 ALR 265 at [278].
CREDIBILITY OF CLAIM ANALYSIS
Upon review of the evidence at the hearing and the material filed with the Tribunal, the Tribunal is concerned about the credibility of the applicant’s claim.
These credibility concerns are discussed and analysed below.
The Tribunal before embarking on a credibility assessment also acknowledges that credibility findings are serious and should not be made lightly and consideration ought to be given of the difficulties faced by asylum-seekers in their personal circumstances, journey and ability to gather evidence.
Lack of detail in initial protection claim at the Department and lack of updating
The Tribunal refers to the written protection claim in the protection visa application lodged with the Department.
The application to the Department was made on 15 March 2019.
There is no mention in his written application to the Department that on 11^th November 2017 his recording studio was destroyed. This is a detailed serious event to leave out.
There is no mention in his written application to the Department that he started getting threats in January or February 2017 with respect to his music.
There is no mention in his written application to the Department that he started getting threats after his song ‘[Title]”. This is quite a specific song to not mention or discuss in his claim.
There is no mention in his written application to the Department that he was threatened as he was not wearing a turban and singing about Sikhs and hurting their feelings.
There is no mention in his written application to the Department that he got into a scuffle with his persecutors where they attacked him, and he also fought back.

100. The applicant’s protection visa was refused on 22 May 2020 and he proceeded to lodged a review with the Tribunal.

101. However, from mid-2020 till mid-2025, being a period of five years, the applicant does not update his claim at the Tribunal with respect to the further serious matters claimed as below.
102. There is no updating his review application at the Tribunal that since 2022 or 2023 his brother had fled to [Country] to seek protection. This is an important corroborative event to leave out.
103. There is no updating his review application at the Tribunal that his mother had passed away in 2025 and due to the stress of the persecution fears.
104. There is no updating his review application at the Tribunal that his other brother in Punjab had relocated out of Punjab to avoid persecution.
105. There is no updating his review application at the Tribunal that they beat up his brother in 2020 or 2021, they asked for 20 lakhs and if this was paid, the applicant could return and live in Punjab.
106. The applicant only updated the Tribunal of his claims on 16 July 2025, being after the hearing invitation was sent and shortly before his hearing was to be held.
107. When asked about the lack of details in his initial protection visa application and his lack of updating the Tribunal after lodging his review, the applicant claimed he did not have good English and did not know he had to write or update his claim.
108. The Tribunal does not accept this. The applicant since making his initial protection visa application and during this review has had the same migration agent. The Tribunal does not accept that the migration agent would have omitted such important details during the Department or Tribunal stage or that his migration agent would not have updated his claims if such matters were advised to his migration agent.
109. It was only after receiving the hearing invitation, and shortly before his hearing did the applicant file an updated claim.
110. The Tribunal finds that the applicant’s failure to set out his claims in his initial application with the Department as they had occurred till the point in time of making the initial application and his failure to update his claims as to matters arising after the initial refusal at the Tribunal for the past 5 years are due to these claims not being credible.
Lack of corroboration or support of claim
111. The Tribunal reminds itself that corroboration or support of a claim is not essential. However, the claims and contextual facts may suggest of corroboration or support.
112. The applicant gave evidence at the hearing that a brother fled from Punjab and was living in-between Haryana and Delhi.
113. The applicant gave evidence that a brother had also fled to [Country] and was seeking protection there.
114. His evidence was also that his brother that was in [Country] was involved in his music and was his business partner and did his music bookings. That this brother was also assaulted and made threats to pay money, or the applicant would be harmed.
115. Yet despite the two brothers being such a strong part of his claims, the applicant does not call his two brothers to give any assistive evidence. He does not file any written sworn statements from his two brothers. He does not arrange to call them via tele-video means to give evidence from India and [Country].
116. The applicant gave evidence that his family did not want him to return. Yet he does not call his family to say this at the Tribunal to assist him.
117. The Tribunal infers that the two brothers would not have given any assistive evidence and hence they were not called to give evidence.
118. The Tribunal therefore infers the claim by the applicant concerning his two brothers is not credible.
Evidential concerns
119. The applicant says that he started making music since 2013 or 2014. This is over 10 years ago. Yet he provides no evidence of his music to the Tribunal.
120. The applicant says he made a song called ‘[Title]’ which angered his persecutors. Yet he does not provide a copy of this song to the Tribunal.
121. Whilst accepting that his recording studio may have been damaged and destroyed, his evidence was that these songs were transmitted and broadcasted to the public. These songs would exist independently of his recording equipment. Yet these songs and their public transmission or broadcast are not evidentially shown to the Tribunal. No evidence of the destruction of his music studio was provided.
122. His evidence was that he played and performed at shows, for which his brother did his bookings. Yet no evidence is provided of such shows or bookings.
123. The applicant gave evidence that he is ‘recognisable’ due to being a singer even if he relocated outside Punjab. Yet he provides no evidence to support such public or social recognition.
124. The Tribunal does not accept that such songs, shows or bookings exist or that the applicant is publicly recognisable as a singer and the claims concerning these are not credible.
Other claims and integers
125. The applicant as part of his updated claim before the Tribunal also raised the following two claims. They include integers of political connections and him not wearing a turban.
126. The applicant again stated that a case could be fabricated against him. The Tribunal has considered this but is not able to find in favour of the applicant as this claim is not credible. The applicant gave no evidence that a case could be fabricated against him during the hearing. He gave no evidence of how a fabrication could occur or the nature of any political reprisals against him. The applicant did mention that his persecutors are politically connected, however the Tribunal has found that the claim with respect to his persecutors is not credible. No evidence was given as to these political connections at the hearing.
127. The applicant stated that he could be persecuted due to his Sikh religion. The Tribunal has considered this claim but is not able to find in favour of the applicant is the claim is not credible. The applicant gave no evidence at the hearing as to fearing persecution due to his Sikh religion. Furthermore, he is a Sikh from Punjab, where Sikhism is the dominant religion. The Tribunal has also considered that the applicant’s claim that he does not wear a turban. However, there was no evidence or information to suggest that Sikhs are persecuted or seriously harmed for not wearing a turban. The applicant’s own passport from India shows his photograph without a turban. The issue of not wearing a turban was also not raised in his initial claim.
128. The Tribunal does not accept these other claims and integers as they are not credible.
Credibility findings
129. The Tribunal finds that all the applicant’s claims are not credible.
FACTUAL FINDINGS
130. The Tribunal makes the followings finds of fact.
131. The applicant is from Punjab, India.
132. The applicant has recently married a woman in New Zealand who is a permanent resident there.
133. The applicant has a brother, sister and father in India.
134. The applicant has a brother in [Country].
135. The applicant’s claims for protection are not credible per the analysis above.
REFUGEE CRITERION ASSESSMENT

To satisfy the refugee criterion in the Act, the applicant must satisfy the Tribunal that they are a refugee pursuant to s 36(2)(a) of the Act. Relevantly this requires the applicant to come within the definition of s 5H(1)(a) of the Act which defines a refugee as a person who has a nationality and is outside their country of nationality and is unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of persecution. Section 5J(1) of the Act further provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country along with the requirements set out in ss 5J(2)–(6) and ss 5K–5LA of the Act.

137. In Chan Yee Kin v MIEA the High Court held that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[8]
[8] (1989) 169 CLR 379.

The reasons in s 5J(1)(a) must be the essential and significant reasons for the persecution per s 5J(4)(a), and per ss 5J(4)(b)–(c) the persecution must involve serious harm and systemic and discriminatory conduct.

139. Section 5J(5) of the Act defines instances of serious harm as including a threat to a person’s life or liberty, significant physical harassment of the person, significant physical ill-treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist and denial of capacity to earn a living of any kind, where the denial threatens the person’s capacity to subsist.
140. The applicant’s claim to fear that he would be seriously harmed upon his return to India due to his songs about Sikhs angering his persecutors, political connections, a fabricated case, his Sikh religion and his lack of wearing a turban.
141. The Tribunal refers to and adopts the above credibility analysis and the finding that all the applicant’s claims of fearing persecution are not credible.
142. The Tribunal does not accept that the applicant would be seriously harmed if returned to India due to his songs about Sikhs angering his persecutors, political connections, a fabricated case, his Sikh religion and his lack of wearing a turban.
143. The Tribunal does not accept that the applicant faces a real chance of serious harm in India as claimed by him.
144. As the Tribunal has found that the applicant’s claims are not credible, no further analysis can be undertaken as to whether protection obligations are owed.
145. The Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed in India as his claims are not credible.
146. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution due to fearing harm in India as his claims are not credible.
147. The Tribunal is not satisfied that the applicant meets the refugee criterion in s 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CRITERION ASSESSMENT

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

149. Section 36(2)(aa) of the Act requires the applicant to satisfy the Tribunal that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returning to his country of nationality, there is a real risk he will suffer significant harm.
150. Section 36(2A) of the Act exhaustively defines that a person will suffer significant harm if they are arbitrarily deprived of their life, or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
151. In MIAC v SZQRB it was held that the ‘real risk’ test under the complementary protection criterion imposed the same standard as the ‘real chance’ test under the refugee criterion.[9]
[9] [2013] FCAFC 33 at [246].
152. The Tribunal refers to the above factual findings in the assessment of the real chance of serious harm in the refugee criterion and relies on it.[10]
[10] The test for real risk of significant harm in assessing complementary protection is the same as the test for real chance of serious harm in assessing the refugee criterion per Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 [243]-[246].
153. In ADJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs the Court stated:
Prior factual findings by reference to the criterion in s 36(2)(a) (the refugee criterion) may be germane to an assessment of an applicant’s claims to fear persecution under s 36(2)(aa) (the complementary protection criterion). There is, in such scenario, no need for any separate consideration of these same factual matters in relation to the complementary protection criterion.[11]
[11] [2021] FCCA 2024 at [34].

154. For the same reasons as set out in the above credibility analysis, refugee criterion assessment and adopted here, the Tribunal finds that the applicant’s claims of fearing significant harm in India are not credible.
155. The Tribunal does not accept that the applicant would be significantly harmed upon his return to India due to his songs about Sikhs angering his persecutors, political connections, a fabricated case, his Sikh religion and his lack of wearing a turban.
156. The Tribunal does not accept that the applicant faces a real risk of significant harm in India as claimed by him.
157. As the Tribunal has found that the applicant’s claims are not credible, no further analysis can be undertaken as to whether protection obligations are owed.
158. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there is a real risk the applicant will suffer significant harm as his claims are not credible.
159. The applicant has made no other protection claims.
160. The Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.
RIGHT TO ENTER NEW ZEALAND – MARRIAGE TO NEW ZEALANDER
161. The applicant gave evidence during the hearing that he had married a New Zealander in 2024 and that every few months she came to Australia to be with him for a few weeks.
162. As the applicant has married a New Zealander, considerations arise as to his right to enter New Zealand. This is not a strict Hohfeldian jural right but construed as a broader right to enter.[12]
[12] SZTOG & Ors v Minister for Immigration & Anor [2015] FCCA 180 at [26]-[28].
163. Notably he did not deny he could not enter New Zealand or that he did not want to go to New Zealand. His stated his only issue with going to New Zealand was his Indian passport.
164. There was no evidence or information before the Tribunal to suggest that the applicant would face persecution or significant harm in New Zealand.
165. Whilst the applicant gave evidence that he could not presently enter New Zealand as he was not able to renew his Indian passport unless he withdrew his protection claim, this is a matter between him and the Indian authorities, and he would need to attend to the administrative arrangements around this issue.
166. It is for him to take these administrative steps. He cannot assert that because his passport is not being issued due to his protection claim, he is not able to enter New Zealand.
167. The applicant’s New Zealand spouse would also need to attend to the administrative process of seeking to arrange for the applicant’s entry into New Zealand. This would include making the relevant sponsorship as a spouse and arranging for his visa to New Zealand.
168. As the applicant is married to a New Zealander, subject to the resolution of the administrative arrangements noted above, the applicant would have a right to enter New Zealand.
169. The Tribunal finds the applicant does have a right to reside in a country other than India, namely New Zealand as the spouse of a New Zealander, and therefore s 36(3) of the Act is applicable.
170. It is for the applicant to attend to the New Zealand immigration requirements. The applicant needs to make the application for the New Zealand spouse visa.
171. It is also for him to liaise with the Indian authorities regarding his passport and take steps to obtain his passport. No documents from the Indian authorities were submitted.
172. These are administrative steps. There is no strict prohibition on the applicant. He can enter New Zealand subject to attending to these matters. It is for him to take these steps.
173. The applicant gave no evidence of the formal steps he had taken to seek entry into New Zealand through their spouse visa provisions.
174. The applicant has yet to formally make the application for a New Zealand spouse visa. No documents from Immigration New Zealand were submitted. There may be representations he can make to seek entry into New Zealand without an Indian passport.
175. The applicant has yet to fully explore and exhaust his options regarding his Indian passport. There may be representations he can make to the Indian authorities to obtain an Indian passport if the New Zealand authorities insist on it.
176. It may be possible for the applicant to make representations to the relevant ministerial authorities of Australia and New Zealand to permit him to depart Australia and enter New Zealand under the auspices of a granted New Zealand spouse visa if an Indian passport cannot be issued to him.
177. The Tribunal is satisfied the applicant has not taken all possible steps to avail himself of the right to enter and reside in New Zealand.
178. Therefore, the Tribunal finds that Australia does not owe protection obligations to the applicant as he is married to a New Zealander and subject to the above administrative arrangements, the applicant can enter and reside in New Zealand.
CONCLUSION
179. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).

182. The Tribunal also finds the applicant does have a right to reside in a country other than India, namely New Zealand as the spouse of a New Zealander, and therefore s 36(3) of the Act is applicable and Australia does not owe protection obligations to the applicant.
DECISION
183. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 27 August 2025
Representative: Mr Ankush Tiwari (MARN: 1678659)

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.
…