2010752 (Refugee) - [2025] ARTA 1776

2010752 (REFUGEE) [2025] ARTA 1776 (30 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2010752
Tribunal:General Member D. Gordon
Date:30 July 2025

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

Statement made on 30 July 2025 at 1:19pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – caste – no evidence of current tension, threats or violence – police report does not support claim of targeted attack – family property dispute – partition and/or sale of land – authenticity of court document, which does not disclose harm or threats – no other documentation or supporting statements – country information – relocation practicable – member of family unit Australian-born child – no evidence of claimed medical condition – older child living with relatives in local area from young age – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(b), 5J(1)(c), 36(2)(a), (aa), (2A), (2B)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ADJ20 v MICMSMA [2021] FCCA 2024
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Lay Lat [2006] FCAFC 61
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 124 ALR 265
SZATV v MIAC (2007) 233 CLR 18
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 2 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of India, applied for the visas on 1 June 2016.
The delegate refused to grant the visas on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicants had a well-founded fear of persecution, in that there is not a real chance that, if the applicants returned to their country of nationality, the applicants would be persecuted on account of their race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicants were not persons in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their country of nationality, there is a real risk that the applicants will suffer significant harm.
The applicants appeared before the Tribunal on 9 July 2025 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicants were represented in relation to the review by Mr Donkin. Their representative did not attend the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue before the Tribunal is whether the applicants are persons in respect of whom Australia has protection obligations pursuant to:
a.The refugee criterion in s 36(2)(a) of the Act; or
b.The complementary protection criterion in s 36(2)(aa) of the Act; or
c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non-citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
COUNTRY OF NATIONALITY
The Tribunal finds the applicants’ identity and nationality are confirmed by their passport and recorded personal particulars.
The Tribunal finds that the applicants are nationals of India, which is also their receiving country for the purpose of their protection claims and assessments.
THE PROTECTION VISA APPLICATION BEFORE THE DEPARTMENT
The Tribunal has before it the protection visa application form lodged by the applicants.
The applicants, in their protection visa application form claim as follows:
a.The first applicant fears persecution on account of being from the Saini caste. She fears harm from the Jat caste. She fears she will be beaten, raped and killed on account of being a Saini. She fears her husband (the second applicant) will be beaten and killed. That her son (the third applicant) will be left without his parents.
b.The applicant’s husband is involved in a property dispute. She fears she will be beaten, raped and killed on account of this property dispute. She fears her husband will be beaten and killed. That her son will be left without his parents.
c.The police and judicial authorities will not be able to protect the applicants.
d.The Jat caste is all over India.
e.She cannot move to Nepal as she cannot speak Nepali and will not be able to obtain employment.
THE MERITS REVIEW APPLICATION BEFORE THE TRIBUNAL
The Tribunal has examined the applicants’ merits review application form and the supporting documents on the file.
These materials did not contain any new claims.
The applicants did expand upon their claims for protection at the hearing discussed below.
HEARING BEFORE THE TRIBUNAL
The applicants appeared before the Tribunal and gave their evidence as follows.
The first applicant was born in Haryana and is [Age] years of age. Her husband, the second applicant was born in Patiala and is [Age] years of age.
Till leaving India for Australia, they were living in Haryana.
The first applicant has [brothers and sisters], all married and living in Haryana. Both her parents have passed away.
The second applicant has one brother and one sister, both living in Haryana. His mother is alive, but his father has passed away.
The first and second applicants have two children, both born here in Australia.
Their elder child [Master A] is presently living in India and [Age] years of age. He is not a citizen of Australia. After he was born, he was taken to India when he was about 6 to 7 months of age and put in the care of the second applicant’s sister so the first applicant could continue with her studies in Australia. He has not returned to Australia.
Their younger son who is [the third applicant] is presently [Age] years old and born in Australia. He has never been to India and lives with the first and second applicants in Australia.
The first applicant explained that in 2009 she came to Australia on a student visa with her husband the second applicant as her dependent. She came to study a diploma in [subject 1] which she completed in 2011. She then did a certificate 4 in [subject 2] which she completed at the end of 2012.
They made one trip back to India in 2013 or 2014 to visit their son. No further trips were made.
Both first and second applicants presently did casual work.
The first applicant stated that the main reason for seeking protection is the land dispute case which they have submitted to the Tribunal.
The first applicant stated that when she applied for protection, the caste issue was very harmful but no longer, that it was no longer like before.
Based on the above response, the Tribunal asked whether the applicants still maintained their caste claim, to which the applicants replied they did.
The Tribunal then invited the applicants to first discuss their protection claim based on their caste.
The first applicant explained that the applicants were from the Saini caste.
That in their village there is lot of tension and violence as the Jat caste will harm them.
That this tension and threat is all over Haryana.
The first applicant stated that if someone is from the Saini caste and on public transport or coming and going from the airport, people from the Jat caste would beat them including beating the women and children.
The first applicant stated there was no killing but there was teasing and beating of the Saini caste. This occurred in 2014 to 2015.
The Tribunal asked whether this violence against the Saini caste was presently occurring. The first applicant answered that presently there was no such violence.
The Tribunal suggested that the violence being claimed by the first applicant happened many years ago and there was a low chance of such violence against the Saini caste happening now. The first applicant answered that maybe there could be and maybe there could not be, and she was not sure.
The Tribunal asked whether there was any evidence to show the violence against the Saini caste was still occurring. The applicant answered no.
The first applicant stated she had some evidence and photos of past harm but no current evidence. Time was granted after the hearing to file further materials.
The Tribunal suggested that perhaps there may have been some tension in the past between the Saini and Jat castes, but that if the applicants returned now, there would not be such tensions. The first applicant answered that maybe there could be and maybe there could not be.
The Tribunal suggested that present country information did not suggest any such issues for the Saini caste. That there were some past political problems but nothing at present. The first applicant agreed but stated that there could be future problems.
The Tribunal invited the applicant to discuss their land dispute claim.
The Tribunal suggested to the first applicant that their land dispute claim was about her husband’s share. That her husband wants to sell his share of the land to his family, but his family wants it for free. Now her husband wants to sell his share to a third party, but his family is threatening him with harm as they do not want his share of the land sold to a third party and want it given to them for free. The first applicant agreed with this summary.
The first applicant stated that their claim is all included in the Indian court case document that was filed with the Tribunal.
The Tribunal turned to the abovementioned Indian court case document and raised the following concerns with the applicants.
The Tribunal queried why the Indian court case document did not have a court stamp. The applicants explained that the document was very old and given by their lawyer. That the document they had was a copy and the original was filed in court.
The applicants explained that previously documents were given by the second applicant’s father, but he had passed away a year ago [in] August 2024.
The Tribunal stated that the applicants have had many years to prepare for their hearing and ought to have had the relevant documents available for the Tribunal.
The Tribunal also explained that the Tribunal in their experience had seen court documents from India and similar countries and such court documents had a court stamp and signature of a court clerk or judge on them. That all parties to a case are given court stamped documents.
The Tribunal suggested to the applicants that as the court case document they provided did not have a court stamp or court official signature, the Tribunal might find that the court case document is not authentic. The applicants replied that they had shown the court case document to their representative and it was pointed out that there was no court stamp but as this was all they had, they submitted it to the Tribunal. The Tribunal pointed out that if this was the case, the applicants ought to have advised the Tribunal themselves that the document they were submitting did not have a court stamp.
The applicant stated they could arrange to obtain and submit the court stamped version of the document.
The Tribunal then turned to the contents of the court case document.
The Tribunal drew the attention of the applicants to the court case document and pointed out that there was nothing stated in the court case document suggesting that the second applicant had been threatened or harmed as claimed. That the court case document reads as a case concerning a single large piece of land and seeks a division of the land but that there was nothing in the court document about the family wanting to harm the second applicant or about the second applicant setting out his fears of harm.
The Tribunal invited the applicants to show to the Tribunal which part of the court case document stated that there were threats or harms caused to them. The applicants could not point to anything in the court case document.
The applicants stated that they had a lawyer in India conducting the court case for them and they could obtain the court stamped papers.
The Tribunal agreed to grant the applicants further time to contact their lawyer in India and obtain a copy of the court stamped papers.
The Tribunal then turned to the issue of internal relocation. The Tribunal stated to the applicants that if the Tribunal found that they were at risk of persecution, the Tribunal would need to consider whether they could relocate to Delhi or Mumbai. The applicants replied that it would not be easy for them to relocate.
The applicants explained that it would not be easy to find land, they would not know where to go, Mumbai would be expensive, and they might not know the language.
The Tribunal raised a further concern it had. That if the applicants feared such harm in Haryana, why did they leave their elder son in Haryana with the second applicant’s sister. The first applicant replied that they could not go live with the second applicant’s sister. The Tribunal replied that it was not suggesting they needed to live with the second applicant’s sister but that they could live nearby and not be harmed as their son was presently living there without harm.
The Tribunal raised its overall concern that their claims may not qualify for protection.
The applicants stated that they also had a police report from India showing that the second applicant in 2014 was attacked and his wallet taken by unknown persons. They sought more time to submit this police report.
The applicants also claimed their son had a medical condition which might affect relocation or return to India.
The Tribunal granted to the applicants’ time to submit the court stamped documents, the police report from India, and written submissions outlining their claims and any country information and supporting evidence on the issue of relocation, their elder son presently being in India, the medicals of their son, and any further matters relating to the harm concerning their caste.
The applicants had no further evidence to give and the hearing concluded.
MATERIALS FILED IN SUPPORT
Prior to the hearing, the applicants filed a copy of an unstamped court case document purporting to be from India with respect to the second applicant’s family land dispute. This was the document considered and upon which the Tribunal raised its concerns. Its contents are further analysed below.
After the hearing, the applicants filed a copy of a police report regarding the second applicant’s lost bank card and a copy of a certificate of partition of land court order.
FURTHER MATERIALS AND SUBMISSIONS NOT FILED
The Tribunal notes that during the hearing, the applicant sought time to file the court stamped papers with respect to their land dispute claim.
The applicant had stated that they had a lawyer in India, and they could obtain the court stamped papers. The applicants have not filed a copy of the stamped court case document.
It ought to be noted that the Tribunal drew their attention to having the stamped court case document submitted to the Tribunal, particularly those parts that would set out, assist or correspond to their protection claims regarding threats and fearing harm from the land dispute.
Only the order for partition was submitted post hearing. It did not disclose any harm or threats to the second applicant or the applicants.
The Tribunal also notes that the applicants were granted time post hearing to file written submissions outlining their claims and any country information going towards the Saini caste claim, their ability to relocate within India, their elder son presently being in India, their son’s medical condition, however the applicants did not file anything on these matters.
The applicants did not seek any extension of time or provide any reasons for the non-filing of these materials.
COUNTRY INFORMATION
Tribunal has had regard for relevant country information from India.[1]
[1] DFAT report for India – 2024.
[3.9] According to 2011 census data (the most recent available), almost 80 per cent (more than 1 billion people) of the population of India is Hindu.
[2.7] India’s 1.4 billion people are ethnically and linguistically diverse. According to the CIA World Factbook, more than 85 per cent of the population is aged 54 years or younger, with a median age of under 29 years. About 36 per cent of the population lives in urban areas. India’s main cities are very large, with 32 million people living in New Delhi and more than 20 million in Mumbai. Several other cities have a population above 10 million.

[2.8] English is widely spoken in India, especially among the upper classes, and is the native language of some Indians. English speakers are found throughout the country, both in the large cities and in less densely populated areas.
[2.10] The World Bank classifies India as a lower-middle income country. Nevertheless, in late 2022, India’s economy became the world’s fifth largest, and its real GDP growth trajectory is projected to exceed 6 per cent in the 2023/24 financial year.
[2.33] As with many countries, the labour market was badly affected by the disruptions of the COVID-19 pandemic. Markets have recovered and jobs are widely available, however the nature and quality of those jobs varies, which reflects the diverse nature of the informal sector rather than COVID-19 disruptions.
[2.11] India ranked 85th out of 180 countries in Transparency International’s 2021 Corruption Perceptions Index, which measures public perceptions of corruption. GAN Integrity notes ‘high corruption risks’ with ‘widespread’ bribery and ‘especially prevalent’ corruption in judiciary, police and public services.
[5.4] The Constitution of India devolves responsibilities for police and public order to the states. According to sources, many Indians will choose not to contact the police, even if they are victims of crime. The 2019 Status of Policing in India Report found that two in five police officers surveyed said that people were hesitant to rely on them. The 2018 version of the same report found that only one in five of more than 15,000 people surveyed had recent contact with the police, and those that did were more likely to be male and wealthy. Those who contacted police may well have paid a bribe for the police to take action.
[5.19] There are no legal barriers to internal relocation and India has a long history of internal migration. In practice, relocation is mostly intra-state rather than interstate. This probably reflects the way in which languages and cultures tend to be divided in India along state-lines; people in the same state will speak the same language as the internal migrant. However, in the northern (not north-eastern) states generally all people speak Hindi, giving greater scope for internal migration.
[5.22] In general, internal relocation is a practical option for most people seeking escape from violence related to marriage choices but this would be limited by the factors discussed above.
Notably the DFAT Country Report did not state that the Saini caste was being persecuted or that the Jat caste was persecuting the Saini caste whether in Haryana or in elsewhere in India.
FINDINGS ON THE EVIDENCE
The Tribunal makes the following findings on the material and evidence before it.
The applicants are from Haryana, India.
The applicants are from the Saini caste.
The first applicant has [brothers and sisters], all married and living in Haryana.
The second applicant has one brother and one sister, both living in Haryana.
The second applicant’s mother is living in Haryana.
The applicants’ elder son has been living in Haryana, India with his aunty since shortly after his birth. He has been in Haryana, India for over a decade without any harm or threats to him.
There is no evidence of current tension, threat, or violence between the Saini caste and the Jat caste or tension, threat, or violence towards the Saini caste in Haryana or elsewhere India.
The court case documents submitted do show that there was a court case to partition a piece of land involving the second applicant and other parties due to difficulties with farming and mortgaging each person’s share.
The court case documents submitted do not disclose any harm or threats of harm directed to the second applicant or the applicants or that the applicants fear any such harm.

100. The police report only shows that an Australian ATM card was lost but does not set out or describe any alleged crime or attack on the second applicant by unknown persons.
APPLICABLE LEGAL PRINCIPLES IN PROTECTION ASSESSMENT
101. The Tribunal sets out the applicable legal principles in assessing protection claims.
102. Section 5AAA of the Act states that it is the responsibility of an applicant to specify all particulars of their claim and to provide sufficient evidence to establish their claim.
103. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out, per MIEA v Guo & Anor.[2]
[2] (1997) 191 CLR 559 at 596.
104. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision maker to establish the relevant facts, per Yao-Jing Li v MIMA.[3]
[3] (1997) 74 FCR 275 at 288.
105. A decision maker is not required to make the applicant’s case for him or her, per Prasad v MIEA.[4]
[4] (1985) 6 FCR 155 at 169-70.
106. It is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts, per Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat.[5]
[5] [2006] FCAFC 61 at [76].
107. The Tribunal is not required to accept uncritically any and all claims made by an applicant, per Randhawa v MIEA.[6]
[6] (1994) 124 ALR 265 at [278].
ANALYSIS
Fear of harm arising from membership of Saini caste
108. The Tribunal accepts that the applicants all belong to the Saini caste and hail from Haryana.
109. The applicants referred and relied on political tensions and violence between the Saini caste and Jat caste from 2014 to 2015.
110. However, it has now been almost 10 years and there was no evidence or information placed before the Tribunal that in the interim years or recently that there was political tensions and violence between the Saini caste and the Jat caste or to the Saini caste generally.
111. As a matter of procedural fairness on the concerns raised by the Tribunal regarding this claim, the Tribunal granted the applicants time after the hearing to file any country information or written submissions going towards this claim. The applicants did not submit anything.
112. The DFAT country information also did not state that there were political tensions and violence between the Saini caste and Jat caste or to the Saini caste generally in Haryana or elsewhere in India.
113. The first applicant gave evidence that if a Saini caste was coming and going to the airport, the Jatt caste would tease and beat them. However, on their last trip to India, the applicants were able to travel between the airport and their village and the applicants did not give any evidence that they were threatened or harmed. There was no evidence they were teased or beaten.
114. Importantly, the applicants have significant close family living in Haryana. This includes their siblings and for the second applicant, also his mother. However, no evidence whether by sworn statement or given by audio-visual means was made available that these close family in Haryana were fearing or experiencing threats, violence, or persecution on account of their Saini caste.
115. Furthermore, the applicants have left their elder son in the care of his aunty in Haryana soon after he was born. He has been in Haryana for over a decade. The Tribunal does not accept they would leave their elder son or not arrange to have their elder son sent out of Haryana or brought back to Australia if there were such threats of harm, violence or persecution of the Saini caste.
116. The Tribunal does not accept that the applicants whether presently or in the reasonably foreseeable future would face threats of harm, violence or persecution in Haryana or elsewhere in India on account of their Saini caste.
Fear of harm arising from land dispute
117. The Tribunal accepts that the second applicant is named in a land case filed in court and that the court has made orders for partition.
118. Notably the court case document is titled “Court of Assistant Collector Second Class, [Town], [District]” and was sent to the Tribunal on 28 June 2025. Within it the document pleads at paragraph 1 that:
1- That the contested acreage is located in [Village] and the acreage is continuously under joint ownership, and that all parties face difficulty amongst them in ploughing the acreage and improving their acreage etc. because of it being jointly owned and due to this the applicants cannot get all the benefits from the acreage and they also face difficulty in taking bank loans etc. because the acreage is jointly owned.

119. Paragraph 3 therein further pleads:
3- That there are several disputes amongst them due to the acreage being contested, therefore the applicants have asked the respondents several times to divide the stated acreage in the land revenue records. However, the respondents deliberately do not wish to have the acreage divided. This is the reason for submitting this application.

120. The pleadings suggest that the various parties to the court case were in dispute due to the joint ownership of a single parcel of land which affected their individual rights to enjoy the land including farming and pledging the land for security such as a mortgage.
121. However, as pointed out during the hearing, the court papers submitted did not disclose any statement or claim or allegation that the second applicant was threatened or harmed or would face threats, harm, or persecution on account of the land case or the partition orders.
122. As a matter of procedural fairness, the Tribunal referred to the above court case document and invited the applicants to point where in it such claims of harm, threat or fear was set out. The applicants could not point to any such claims in the court case document.
123. As a matter of procedural fairness, the Tribunal granted time after the hearing for the applicants to liaise with their lawyer in India to obtain stamped court papers which might show such harm as claimed. However, the applicants only submitted the partition orders which did not disclose any threat, fear, harm or persecution to the second applicant or the applicants generally.
124. Furthermore, the second applicant’s claim was vague and lacking in detail. He did not give any evidence or information as to which family members were seeking to harm him. He did not give any evidence or information about any third-party sale.
125. The applicants maintained that their claim is as per the submitted court case document. However, the court case document as submitted to the Tribunal does not disclose any threat, fear, harm or persecution. The court document only states that a formal case was filed to obtain a land partition order so the land could be divided up. The document does not show any threat, fear, harm or persecution.
126. The applicants gave evidence that they have a lawyer in India. However, other than the unstamped court case document and partition order, they did not provide any other documents from the lawyer in India concerning their land case or their fears of harm or persecution.
127. Turning to consider the possibility that certain family members may want his land and thus not be willing to give assistive evidence, however the second applicant has his mother and his sister who is looking after his son since birth, yet he does not call these two important family members to give any evidence in support of his fears arising out of the land dispute claim.
128. The Tribunal as a matter of procedural fairness had advised the applicants during the hearing that it may not find this claim to be credible. The applicants were also given time after the hearing to file written submissions and liaise with their lawyer in India to obtain any stamped court case documents showing the harm claimed. They only filed the partition order. They did not file any written submissions addressing this claim or the Tribunal’s concerns. They did not file any other stamped court papers that might have shown or disclosed there was harm, threats or persecution to the second applicant or the applicants.
129. The Tribunal does not accept that the second applicant’s court case or land dispute would result in him or their suffering harm, threats or persecution whether presently or in the reasonably foreseeable future.
Other claims
130. The applicants gave evidence at the hearing that in 2014 when the second applicant was in India, he was attacked by unknown persons and his wallet was taken.
131. The applicants advised they had a police report to support this claim and were given time to file it. The Tribunal has examined the police report filed by the applicants.
132. The police report only states that the applicant lost his ATM card and reported this. It specifically mentions such loss was not due to any alleged crime. There is no mention of an attack. There is no mention of unknown attackers.
133. The police report filed expressly contradicts their evidence regarding this event. The police report does not mention any attack or unknown attackers and states the ATM card was lost only. The report also states it was not because of any alleged crime. It was a loss notification report.
134. The Tribunal does not accept that the second applicant was attacked by unknown persons and his wallet was taken. Their own police report contradicts this claim.
135. Even turning to consider the possibility of such a crime, the crime of taking a wallet by unknown persons would be opportunistic and random and not systematic, discriminatory and on account of seeking to persecute the second applicant and would not place the second applicant at a real chance of serious harm or real risk of significant harm. It could happen to anyone and is to be dealt with by local law enforcement and not a matter that falls within the ambit of Australia’s protection obligations.
136. The applicants raised during the hearing that their son had a medical condition that would impact upon relocation or return to India. The Tribunal granted further time to supply their son’s medical reports. The applicants did not submit anything. The Tribunal does not accept that their son has a medical condition which would impact on internal relocation or moving to India.
Relocation within India analysis
137. The applicants’ case requires an analysis of whether they can internally relocate and avoid the harms feared. This requires proper consideration of both the harms feared and their ability to relocate.
138. At the hearing the Tribunal discussed with the applicants whether they could relocate to other areas within India such as Delhi or Mumbai and avoid the harms feared.
139. The Tribunal has also had regard to the ‘reasonable in the sense practicable’ test for relocation in SZATV v Minister for Immigration and Citizenship.[7]
[7] (2007) 233 CLR 18, 27 [24] (Hayne, Gummow and Crennan JJ).
140. Country information from DFAT also states that persons in India are able to relocate internally and there is significant internal migration across states.
141. The applicants replied that it would not be easy for them to relocate.
142. The applicants explained that it would not be easy to locate land, they would not know where to go, Mumbai would be expensive, and they might not know the language.
143. The Tribunal has considered the applicants response.
144. The first issue for consideration is whether the harms claimed may follow them or arise in other parts of India. There was no evidence or information placed before the Tribunal to show this. There was also no evidence placed before the Tribunal of any new fears or harms in Delhi or Mumbai or arising from such internal relocation.
145. The Tribunal notes that the applicants in their protection visa state that the Jat caste is all over India. Whilst this is accepted, there was no evidence or information, or anything contained in the country information that the Jat caste would threaten, harm or persecute the applicants or that there was a real chance or real risk of harm from the Jat caste in India.
146. The applicants gave no evidence and provided no information during the hearing that the Saini caste faced a real chance or real risk of threat, harm or persecution in other parts of India such as Delhi or Mumbai.
147. Importantly, the applicants were granted time after the hearing to file written submissions on the issue of relocation within India, but they did not file anything.
148. The Tribunal does not accept that the Jat caste located around India or in specific parts such as Delhi or Mumbai would threaten or harm the applicants or seek to persecute them. The Tribunal does not accept that such relocation would result in new fears or new harms arising either.
149. The second applicant gave no evidence or information that his family members would seek or attempt to locate him in other parts of India such as Delhi or Mumbai or seek to locate and harm him or the applicants in other parts of India. Notably, the land is within Haryana. The Tribunal also notes that based on the evidence and information before the Tribunal and as presented in the court case document, the Tribunal does not accept that the second applicant’s family would harm the applicants or that there is a real chance or real risk of harm from the family members.
150. No information, evidence or submissions were made that the ATM card being lost, or the wallet theft or their son’s medical condition would be a real chance or real risk of harm or persecution in Delhi or Mumbai or arising from relocating away from Haryana.
151. The Tribunal finds that the applicants would not be subjected to a real chance or real risk of harm or persecution on the claims and fears as raised by them in Delhi or Mumbai. The Tribunal also finds on the evidence before it that no real chance or real risk of new harms or new fears arise by virtue of such internal relocation.
152. The Tribunal turns to whether the applicants are in a reasonable in the sense practicable position to relocate.
153. The first applicant is [Age] years of age and has two Australian qualifications, a diploma in [subject 1] and a certificate 4 in [subject 2]. She is qualified and within employable age.
154. The second applicant is [Age] years of age. He is within employable age.
155. Their two boys are not infants or toddlers. The elder son is [Age] years, and the younger son is [Age] years.
156. The elder son is already in India living with his aunty.
157. There was no evidence or information placed before the Tribunal that any of the applicants had a disability or medical condition of such seriousness that would make internal relocation or the process of moving to India to internally relocate unreasonable.
158. Whilst accepting that the applicants would face some administrative hurdles such as travelling to Delhi or Mumbai, having to locate a place to stay and seeking out employment, these are matters that are part and parcel of daily life and do not show or impose an unreasonable burden when considered against the benefit of avoiding the harms feared.
159. The Tribunal notes the applicants raised a possible language barrier to parts of India however bearing in mind their fluency in Hindi, the Tribunal does not accept they would face a language barrier in Delhi or Mumbai.
160. Despite being granted time after the hearing, no written submissions were submitted addressing the relocation issue, their son’s medical condition, or their elder son already being in India.
161. The Tribunal finds that the applicants would not be exposed to or suffer a real chance or real risk of harm by relocating to Delhi or Mumbai.

162. The Tribunal finds that it would be reasonable in the sense practicable for the applicants to relocate to a city such as Mumbai or Delhi and thereby avoid the harms claimed and feared.
163. Furthermore, there was no evidence that such relocation would result in new harms or new risks of persecution arising in the relocated area and the Tribunal finds accordingly.
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.

165. 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.

167. 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.
168. The Tribunal refers to the claims analysis undertaken above.
Fear of harm arising from membership of Saini caste
169. Whilst accepting that the applicants are from the Saini caste and are from Haryana, there was no evidence or material before the Tribunal to satisfy it that there would be a real chance of serious harm on account of the applicant’s Saini caste if they returned to India.
170. There was no evidence or information before the Tribunal to satisfy it that the applicants would be beaten or killed, or that the first applicant would be raped on account of their caste or that the third applicant would be orphaned by the killing of the first and second applicants. Neither did the country information state this. The Tribunal does not accept the applicants would be so harmed as claimed.
171. The applicants were provided with an opportunity after the hearing to supply country information and written submissions on their Saini caste claim but they did not file anything.
172. The applicants own elder son is presently in Haryana with his aunty without any evidence or information that there was a risk of him suffering harm on account of his caste. Notably the elder son has been with his aunty in India in Haryana since shortly after his birth when he was taken there by the applicants and placed in his aunt’s care over a decade ago.
173. Both the applicants have multiple siblings in Haryana and the second applicant has his mother in Haryana also, however there was no evidence or information placed before the Tribunal of harm due to their Saini caste. Neither did any family members give evidence of any threats or harms due to their Saini caste.
174. The DFAT country information did not contain any information concerning serious harm to the Saini caste whether in Haryana specifically or India generally.
175. There was no evidence or information placed before the Tribunal of such caste harm whether in Haryana or elsewhere in India.
176. The Tribunal is not satisfied that there is a real chance of serious harm on account of their Saini caste if the applicants returned to India.
Fear of harm arising from land dispute
177. The applicants gave evidence that their claim was based on the court papers. The Tribunal has reviewed these and also given time after the hearing for the filing of further court papers.
178. Whilst accepting that the second applicant was a party to a land court case and a resulting partition order, there was no evidence or claim or other information contained in or arising from the court papers that he had been threatened, harmed or persecuted or that he would be exposed to such threats, harm or persecution.
179. There was no evidence or information before the Tribunal that the applicants would be beaten or killed, or that the first applicant would be raped on account of the land dispute or that the third applicant would be orphaned by the killing of the first and second applicants.
180. The second applicant did not call his mother or his sister who has been looking after his son since birth to give any evidence on whether he would face threats and harm due to the land dispute.
181. The applicants confirmed at their hearing they have a lawyer in India having carriage of the land case. The Tribunal granted further time after the hearing for further court papers to be filed. The applicants only filed the court partition order. No other assistive material was filed with respect to the land case which might show or disclose that the second applicant faced or would face threats, harm or persecution due to the land dispute.
182. Notably, the applicants have left their elder son in India shortly after his birth with his aunty in Haryana. He has been there for over a decade. There is no evidence that their son has been exposed to threats or harm due to the family land dispute. The Tribunal does not accept that the applicants would leave their elder son in a place where they claim their family members are seeking to seriously harm them.
183. The Tribunal is not satisfied that the applicants face a real chance of serious harm on account o the land case or the partition order or any land dispute.
184. The Tribunal is not satisfied that the applicants have a well-founded fear of persecution due to fearing harm in India on account of the land dispute.
Other claims
185. With respect to the claim regarding their son’s medical condition, despite time being granted after the hearing to file medical reports and written submissions on this claim, the applicant have not filed anything. The Tribunal does not accept that there is a real chance of serious harm on account of their son’s medical condition to the applicants.
186. With respect to the claim regarding the second applicant’s theft in 2014 in India, the police report shows that only an ATM card was lost and not due to any crime. Furthermore, the possible theft of a wallet by unknown persons is an opportunistic theft and does not engage Australia’s protection obligations. It is not conduct that is systematic and discriminatory. Such past harm does not qualify as serious harm and is not due to a protected attribute in refugeehood. The general population would have to deal with such risks and there was no evidence the second applicant was specifically targeted. The Tribunal does not accept that there is a real chance of suffering serious harm on account of this loss or theft to the applicants.
187. There was no evidence or information before the Tribunal that these other claims would result in a real chance of serious harm to the applicants.
Relocation
188. The Tribunal refers to the above relocation analysis findings.
189. The harms feared are confined to matters in Haryana.
190. The Tribunal finds that the harms feared do not relate to all areas of India such as Delhi and Mumbai.
191. Even whilst accepting that members of the Jat caste are in Delhi and Mumbai, there was no evidence or information before the Tribunal that the Jat caste in Delhi or Mumbai posed a real chance of serious harm to the applicants. The Tribunal does not accept that the Jat caste in Delhi or Mumbai pose a real chance of serious harm to the applicants.
192. There was no evidence or information before the Tribunal that the family members would pursue or locate or track the applicants to Delhi or Mumbai. The Tribunal does not accept that the family members would pursue or locate or track the applicants to Delhi or Mumbai.
193. There was no evidence or information that the harms feared, or the persons or entities suspected of engaging in such conduct would seek or locate the applicants or follow the applicants out of Haryana to places such as Delhi or Mumbai.
194. There was no evidence or information that the applicants would be persecuted in other areas of India such as Delhi or Mumbai. The Tribunal does not accept such harm would arise.
195. There was no evidence or information placed before the Tribunal that the applicants suffered from any disability or inability to relocate within India to Delhi or Mumbai.
196. The applicants were also given an opportunity after the hearing to file written submissions to address the relocation issue but did not do so.
197. The Tribunal also finds that it would be reasonable in the sense practicable for the applicants to relocate to Delhi or Mumbai to avoid the harms feared per s 5J(c) of the Act.
198. As the Tribunal has found that the applicants are able to internally relocate to avoid the harms claimed and feared, it follows that Australia does not owe them protection obligations.
Conclusion on refugee criterion assessment
199. The Tribunal is not satisfied that the applicants face a real chance of suffering serious harm in India on their claims and fears.
200. The Tribunal is not satisfied that the applicants have a well-founded fear of persecution due to suffering a real chance of serious harm in India.
201. The Tribunal is not satisfied that the applicants meet the refugee criterion in s 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CRITERION ASSESSMENT

As the 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.

203. Section 36(2)(aa) of the Act requires the applicant to satisfy the Tribunal that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returning to her country of nationality, there is a real risk she will suffer significant harm.
204. 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.
205. 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].
206. The Tribunal refers to the above claims analysis and the 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].
207. 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].

208. For the same reasons as set out in the above claims analysis and refugee criterion assessment and adopted here, all the applicants’ claims do not engage Australia’s complementary protection obligations.
209. With respect to the Saini caste claim, there was no evidence or information placed before the Tribunal despite further time being granted after the hearing that the Saini caste in Haryana would face a real risk of suffering significant harm. Furthermore, the applicants’ own elder son is living with his aunty in Haryana without any evidence or information that he was under threat or harm or would suffer harm due to his Saini caste. There was no country information of present or reasonably foreseeable threats to the Saini caste. The Tribunal does not accept that there is a real risk of suffering significant harm on this claim.
210. With respect to the land dispute claim, the applicants relied on the court case which only set out an application and orders for partition. They were given time after the hearing to file submissions and obtain other papers from their lawyer in India but other than the partition orders no further material was supplied. The second applicant did not call evidence from his mother or his sister on any family land dispute. The Tribunal does not accept that there is a real risk of suffering significant harm on this claim.
211. With respect to the loss or theft of the second applicant’s wallet or bank card, such an event does not constitute significant harm and is best dealt with by local authorities to manage opportunistic random crime. The report mentioned no crime or unknown attackers. The general population would have to deal with such risks and there was no evidence the second applicant was specifically targeted. The Tribunal does not accept that there is a real risk of suffering significant harm on this claim.
212. With respect to the applicants’ son’s medical condition, despite time being granted after the hearing, no medical report or written submissions were filed addressing this claim. The Tribunal does not accept that there is a real risk of suffering significant harm on this claim.
213. There was no evidence or information before the Tribunal that the applicants would be beaten or killed, or that the first applicant would be raped or that the third applicant would be orphaned by the killing of the first and second applicants on account of these complementary protection claims.
214. Each of these claims do not satisfy the Tribunal that the applicants face a real risk of suffering significant harm as a necessary and foreseeable consequence of them being removed from Australia to India.
215. Each of these claims do not satisfy the Tribunal that Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that the applicants will suffer significant harm.
Other claims
216. No other claims or evidence or information were put forward by the applicants.
217. No other claims arose on the material before the Tribunal.
218. For the avoidance of doubt, the Tribunal has considered each claim separately and cumulatively including considering whether there are any applicable or relevant integers but is not able to find in favour of the applicants.
Relocation
219. The Tribunal refers to the above relocation analysis findings.
220. The harms feared are confined to matters in Haryana.
221. The Tribunal finds that the harms feared do not relate to all areas of India.
222. Even whilst accepting that members of the Jat caste are in Delhi and Mumbai, there was no evidence or information before the Tribunal that the Jat caste in Delhi or Mumbai posed a real risk of the applicants suffering significant harm. The Tribunal does not accept that the Jat caste in Delhi or Mumbai pose a real risk of the applicants suffering significant harm.
223. There was no evidence or information before the Tribunal that the family members would pursue or locate or track the applicants to Delhi or Mumbai. The Tribunal does not accept that the family members would pursue or locate or track the applicants to Delhi or Mumbai.
224. There was no evidence or information that the harms feared, or the persons or entities suspected of engaging in such conduct would seek or locate the applicants or follow the applicants out of Haryana to places such as Delhi or Mumbai.
225. There was no evidence or information that the applicants would suffer significant harm in other areas of India such as Delhi or Mumbai. The Tribunal does not accept such harm would arise.
226. There was no evidence or information placed before the Tribunal that the applicants suffered from any disability or inability to relocate within India to Delhi or Mumbai.
227. The applicants were also given an opportunity after the hearing to file written submissions to address the relocation issue but did not do so.
228. The Tribunal is also satisfied that it would be reasonable for the applicants to relocate to an area of India such as Delhi or Mumbai where there would not be a real risk that the applicants would suffer significant harm per s 36(2B)(a) of the Act.
229. As the Tribunal has found that the applicants are able to internally relocate to avoid the harms claimed and feared, it follows that Australia does not owe them protection obligations.
Conclusion on complementary criterion assessment
230. The Tribunal is not satisfied that the applicants meet the complementary protection criterion in s 36(2)(aa) of the Act.
CONCLUSION
231. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

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

234. The Tribunal affirms the decision not to grant the applicants a protection visa.
Date of hearing: 9 July 2025
Representative: Mr Neil Donkin (MARN: 9803038)

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.
…