2012608 (Refugee) - [2025] ARTA 2204

2012608 (REFUGEE) [2025] ARTA 2204 (11 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2012608
Tribunal:General Member D. Gordon
Date:11 August 2025

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

Statement made on 11 August 2025 at 2:19pm
CATCHWORDS
REFUGEE – protection visa – India – fear of harm from gang leader – threatened after witnessing murder, including ongoing regular threats to family – return trips – passage of time and no harm to family – no supporting evidence – country information – gang leader in prison at time of claimed murder – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ADJ20 v MICMSMA [2021] FCCA 2024
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMIA v Lay Lat [2006] FCAFC 61
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 124 ALR 265
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 29 July 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 5 October 2016.
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.
The applicant appeared before the Tribunal on 30 July 2025 to give evidence and present arguments.
Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages.
The applicant was represented in relation to the review by Mr Dwarampudi who also attended 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 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 his passport and recorded personal particulars.
The Tribunal finds that the applicant is a national of India, which is also his receiving country for the purpose of his 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 claims as follows:
a.The applicant fears persecution on account of having been a witness to a murder by a gangster named [Mr A]; and
b.That the gangster [Mr A] threatened to kill him as the applicant was to be a police witness to the murder case.
THE MERITS REVIEW APPLICATION BEFORE THE TRIBUNAL
The Tribunal has examined the applicant’s merits review application form and the supporting documents on the file.
These materials did not contain any new claims.
The applicant did expand upon their claims for protection at the hearing discussed below.
HEARING BEFORE THE TRIBUNAL
The applicant appeared before the Tribunal and gave their evidence as follows.
The applicant stated he was born in Chennai, Tamil Nadu, India.
At the time of the hearing he was [Age] years old.
He came to Australia in 2016.
The applicant stated his mother had passed away, and his father is still alive. His father is presently [Age] years old. His father is in Chennai.
The applicant has [brothers] and one sister.
His [brothers] are not in Chennai but in another district of Tamil Nadu. His [brothers] are presently [Ages] years of age respectively, they are all married, and all have children.
His sister is in Chennai. She is presently [Age] years old and has children.
The applicant stated he completed high school in Chennai and worked in [work sector] before coming to Australia.
The applicant said he is married, and his wife is in Chennai. His wife is presently [Age] years of age. She is a housewife.
The applicant said he has [children], each presently aged [Ages] respectively.
His [Age]-year-old son is presently in college studying [subject].
The applicant arrived in Australia on a visitors visa in 2016.
The Tribunal asked the applicant why he feared returning to India. The applicant replied that he had witnessed a murder, and the person who committed the murder is looking for him and if he were to return, his life would be in danger.
The applicant said he saw the murder. He did not know the person who was killed.
That the murder occurred around [July] 2016.
The murder happened in an open area close to the applicant’s house.
There were other people who also witnessed the murder but the applicant did not know them.
The applicant saw a man called [Mr A] commit the murder. This [Mr A] stabbed the victim with a knife. The Tribunal clarified this, and the applicant confirmed it was [Mr A].
The applicant said that this man [Mr A], he is the leader of the [A] gang.
During the murder, [Mr A] was also accompanied by 3 to 4 other people from his gang. However, the applicant confirmed that it was [Mr A] who committed the murder.
As the applicant was living close to the area of the murder, the police came and took him to the police station and started asking him about the murder and what he witnessed including who did the murder and whether he knew the person committing the murder. The applicant advised the police that [Mr A] did the murder. The police wanted the applicant to be a witness against [Mr A] in the murder case.
The [Mr A] gang started threatening the applicant, that if he were to be a police witness they would kill him and kill his whole family.
The applicant was unsure what to do in the face of such threats so he went to his native village called [Village 1] where his father was born.
The applicant stayed for nearly 10 days in [Village 1] and the [Mr A] gang started threatening him there saying they would kill him.
The applicant then went to the next village to his friend’s house in [Village 2] within the [Village 1] district and was hiding himself in different houses. He would shift houses every few days.
The applicant said he was very stressed, and he thought it would be better to go somewhere else out of India.
Through a friend of his he applied for an Australian visa and got it.
The applicant was worried the [Mr A] gang might find him at the airport, but nothing happened and he was able to fly to Australia.
The applicant confirmed the above was his evidence.
The applicant’s representative raised the issue of a [Country] visa application disclosure matter.
The Tribunal referred to the delegate’s reasons for refusal and discussed the matters of concern arising from the refusal decision.
The Tribunal raised a concern of the delegate that it had been many years since the applicant had left and his family was not harmed, and this might suggest the claim to not be genuine. The applicant replied that the [A] gang came to his home every 1 to 2 weeks and threatened his family including asking when the applicant would be coming back and to let the [A] gang know of the applicant’s return.
The Tribunal raised a concern of the delegate that it was not believable that the applicant would hide an hour away at his friend’s house. The applicant replied that he was scared to stay at his house as the [A] gang would have killed him. That he stayed in [Town] which is an hour away. The Tribunal clarified the distance from his house to [Town] as by train 1.5 hours, by bus 2 hours and by car 1.5 hours.
The Tribunal asked the applicant if he had been back to India since coming to Australia. The applicant said he had returned to India and that he made three trips back to India.
The Tribunal asked the applicant why he went back to India three times since arriving in Australia.
The applicant said the first time he went back to India, his mother was sick, so he did not care about his life but went to see his mother. He stayed for 28 days.
The applicant said the second time he went back to India, his father was sick. He stayed about 54 to 55 days.
The applicant said the third time he went back to India, he went to see his father as his mother had passed away a few months before. He stayed for 3 months looking after his father.
The applicant confirmed that in his three return trips to India he also saw his wife and children.
The applicant’s representative clarified that he had confirmed with the applicant whether he was comfortable with returning to India during those trips and the applicant stated he was.
The Tribunal discussed the matter of relocation with the applicant.
The Tribunal asked the applicant whether he could relocate to Delhi or Mumbai as per the DFAT country information. The applicant stated he could not as his father is still sick and his wife and children are also in Chennai, that he could not go and live in Delhi or Mumbai and he did not know the language in those areas. He as a Muslim would face problems and discrimination.
The Tribunal suggested to the applicant that places such as Delhi and Mumbai have lots of Muslim people. The applicant agreed but he said he would not be able to go as he would not be able to take his father, and his children are studying in Chennai and his property and assets are in Chennai. He would not be able to start a new life in Delhi or Mumbai and there would be no guarantee that the [A] gang would not search for him and find him in Delhi or Mumbai. That he was safe in Australia.
The Tribunal referred to the India-Nepal Friendship Treaty and asked the applicant if he could relocate to Nepal. The applicant said he could not as he did not know Nepal and he did not know the language and his property, and everything was in Chennai. That there was no guarantee the [A] gang would not come to Nepal to look for him.
The Tribunal asked about the applicant’s property and assets in Chennai. The applicant clarified that his wife has property in Chennai and that was where he was living when the murder was committed by [A].
The applicant confirmed that his whole family lived in one house as a joint family. That his wife is looking after his father.
The applicant clarified that for his three trips back to India, he was staying in [Town]. He would ask his family to visit him in [Town] on a weekly basis.
The applicant stated he speaks with his elder son once every 3 to 4 days and similarly with his wife and other children whilst he is in Australia.
The applicant said that it has been 9 years, and he has been living in peace in Australia, and that if he returns his life would be in danger. That he is already [Age] years old and he cannot live in fear.
The Tribunal raised its concern that his family was not harmed in these 9 years and he made three trips back to India where the [A] gang is.
The applicant replied he did not go for a tour but went to see his parents and he was in real fear. He went back as he lost his mother.
The Tribunal stated that the applicant had managed to successfully hide on the three trips back, the Tribunal would need to consider whether he could relocate. The applicant replied he could not hide his whole life and that he has his family, and he is already [Age] years of age.
The applicant stated that the [A] gang are still threatening his family, and that his wife and children are still very scared and living in fear. He wanted to bring his family to Australia if possible.
The applicant had no further evidence to give and the hearing concluded.
MATERIALS FILED IN SUPPORT
The applicant filed the following materials which the Tribunal has taken into consideration.
Legal submissions prepared by his representative.
The applicant’s email of 23 July 2025 setting out links to the first two articles below.
[A News source 1] article of [January] 2025 concerning 30 machetes seized from [Mr A]’s house, and he is the prime suspect in the murder of [Mr B].
An article from [News source 2] of [November] 2024, part of a three-part series discussing the plot to murder [Mr B].
The Tribunal has also read and considered the material on the Department file including an article from [News source 3] of [July] 2016.
These articles submitted by the applicant show [Mr A] to be a notorious gangster and crime boss in Chennai, Tamil Nadu, India.
COUNTRY INFORMATION
Tribunal has had regard for relevant country information from India.[1]
[1] DFAT report for India – 2024.
[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.
[2.11] 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.
[5.9] The judiciary in India is separate from the legislature and executive. The Indian judicial system, like Australia’s, is inherited from British Common Law, and senior courts in particular are known for considered judgements in a similar style to Australian courts. Judgements may be written in English.
[3.103] The March 2021 state election in Tamil Nadu was not characterised by significant violence. The Hindustan Times noted that the election went ahead ‘smoothly’. There were some localised incidents of violence, however DFAT is not aware of a culture of political violence in the state.
[3.104] DFAT assesses that, overall, participants in Tamil Nadu politics face a low risk of official or societal discrimination or violence.
APPLICABLE LEGAL PRINCIPLES IN PROTECTION ASSESSMENT
The Tribunal sets out the applicable legal principles in assessing protection claims.
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.
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.
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.

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.
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].
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].
CREDIBILITY ANALYSIS
The evidence of the applicant has given rise to credibility concerns which the Tribunal analyses below. These credibility concerns were also raised with the applicant during the hearing.
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 any threats or harm to family members in India for past 9 years

100. The applicant gave evidence that he had family members back in India.
101. This included his [brothers], sister, father, [children] and his wife.
102. His [brothers] are living out of Chennai but in Tamil Nadu in another district.
103. His sister, father, wife and [children] are still in Chennai.
104. The applicant gave evidence that the [A] gang had threatened to kill him and his family as he was a witness to the murder by [Mr A].
105. The Tribunal raised its credibility concern that it had been almost 9 years since the applicant had left India and, in that time, the [A] gang had not caused any harm to the applicant’s family.
106. The applicant replied that the [A] gang came to his home every 1 to 2 weeks and threatened his family including asking when the applicant would be coming back and to let the [A] gang know of the applicant’s return.
107. The Tribunal does not accept that the [A] gang would spend the past 9 years coming to his home every 1 to 2 weeks to threaten his family and inquire about him and asking to be told of his return without taking any further action.
108. It is not believable that a person such as the gangster [Mr A] who the applicant claims he witnessed murder a person in 2016 and who knows the applicant to be a police witness to such a murder case would have his gangsters come to the applicant’s house every 1 to 2 weeks over the past 9 years and make threats and inquire about the applicant and asking to be told of his return without taking any further action.
109. For a gang that had threatened to kill the applicant’s family, it is not believable that after making a threat to kill his family members, they would spend the past 9 years coming to his house every 1 to 2 weeks and making threats and inquiring about the applicant and asking to be told of his return without taking any further action.
110. The Tribunal does not accept that the [A] gang have been coming to the applicant’s house every 1 to 2 weeks over the past 9 years and making threats and inquiring about the applicant and asking to be told of his return.
The applicant’s three return trips to India since arriving in Australia
111. The applicant gave evidence that he made three return trips to India since arriving in Australia.
112. The applicant said the first time he went back to India, his mother was sick, so he did not care about his life but went to see his mother. He stayed for 28 days in India.
113. The applicant said the second time he went back to India, his father was sick. He stayed about 54 to 55 days in India.
114. The applicant said the third time he went back to India, he went to see his father as his mother had passed away a few months before. He stayed for 3 months looking after his father in India.
115. The applicant confirmed that in his three trips to India he also saw his wife and children.
116. The applicant clarified that for his three trips back to India, he was staying in [Town]. He would ask his family to visit him in [Town] on a weekly basis.
117. The Tribunal notes that [Town] is located in Tamil Nadu.
118. By the applicant’s own evidence, the distance between [Town] and Chennai is approximately 1.5 to 2 hours by transport.
119. The Tribunal does not believe that a person such as the applicant who feared being killed for witnessing a murder by a gangster [Mr A] would make three return trips to India, and more so to the same state of Tamil Nadu and would reside only a short distance away from Chennai in [Town].
120. Importantly, the applicant in his own evidence stated that during his initial trip to Australia he was worried the [A] gang might find him at the airport, but nothing happened and he was able to fly to Australia. It is not believable that if he worried about the [A] gang finding him at the airport during his first trip that he would then make three return trips back to India.
121. By the applicant’s own evidence, his three return trips to India were not short in duration. His first return trip was for 28 days, his second return trip was for 54 to 55 days and his third return trip was for 3 months.
122. Furthermore, his own evidence was that the [A] gang were visiting his house in Chennai every 1 to 2 weeks to threaten and inquire about him. Yet his evidence was also that his family was visiting him in [Town] on a weekly basis during his three return trips.
123. The Tribunal does not believe that the applicant would make three lengthy return trips to India, reside 1.5 to 2 hours away from his home, and have his family make weekly visits to him when the [A] gang were also making visits every 1 to 2 weeks to his home to inquire about him.
124. The Tribunal does not accept that the [A] gang were visiting his home in Chennai every 1 to 2 weeks to threaten and make inquiries about the applicant.
125. The Tribunal does not accept that a person such as the applicant fearing being killed by a gangster such as [Mr A] would make three lengthy return trips to India and to the same state of Tamil Nadu where the [A] gang is located.
Lack of any assistive evidence from family members who were threatened
126. The applicant gave evidence that the [A] gang had threatened to kill his family.
127. The applicant also gave evidence that the [A] gang came to his home every 1 to 2 weeks and threatened his family and inquired about him and his return.
128. The Tribunal appreciates that the applicant’s father is elderly and sick and also his [younger children] are [Ages], and that these persons could be excused from providing any assistive evidence.
129. However, the applicant gave evidence his eldest son is [Age] years old and a student studying a [Subject] degree.
130. The applicant’s wife stays at home and is [Age] years of age.
131. The applicant also gave evidence that he regularly communicates to his eldest son and his wife.
132. Whilst corroboration or assistive evidence is not required or essential for a protection claim to succeed, the applicant’s own evidence as outlined above detailed readily available corroboration and assistive evidence from his family members.
133. Yet no assistive evidence whether by sworn statement or audio-video means is put before the Tribunal from the applicant’s wife or eldest son as the threats to kill his family, or the [A] gang coming to his house every 1 to 2 weeks to threaten them or inquire about his return.
134. This lack of any assistive evidence from his family members such as his wife and eldest son show to the Tribunal that such assistive evidence was not available as no such visits or threats were made to his family by the [A] gang.
135. The Tribunal finds that no visits or threats have been made by the [A] gang to the applicant’s family or inquiries about his return.
[Mr A] serving life imprisonment since 2003
136. The applicant gave evidence that he witnessed [Mr A] committing the murder around [July] 2016. The Tribunal will also be liberal and consider the whole of 2016.
137. The Tribunal was exact and precise with its questions on this issue of identification as to who the applicant saw committing the murder.
138. The applicant replied in his evidence that he saw [Mr A] commit the murder.
139. The applicant confirmed that whilst 3 to 4 other men were around, that it was [Mr A] who did the murder by stabbing the victim. Furthermore, the applicant gave evidence that he witnessed [Mr A] committing the murder around [July] 2016.
140. However, the applicant’s own supplied article from [News source 3] of [July] 2016 states as follows about [Mr A]:
141. [Quotation, including that Mr A has been in jail since 1998, when he was arrested for murder. His original sentence of 10 years was increased to life on appeal.]The Tribunal has underlined the relevant two passages above.
142. A copy of the above article supplied by the applicant can be accessed here: [URL 1].
143. The applicant also provided an article from [News source 1] dated 8 January 2025 which relevantly also states:
[Mr A is currently serving a life sentence.]
144. The Tribunal has underlined the relevant passage above.
145. A copy of the above article supplied by the applicant can be accessed here: [URL 2].
146. These two articles, both submitted by the applicant, one dated [July] 2016 and one dated [January] 2025 both state that the gangster [Mr A] is in prison serving a life sentence. Their dates show that [Mr A] has been serving a life sentence since at least 2003, confirmed by the article of [July] 2016 and confirmed by the article of [January] 2025.
147. Yet the applicant gave evidence that he saw [Mr A] around [July] 2016 commit the murder.
148. Both the articles submitted by the applicant state that [Mr A] would have been in prison around [July] 2016 and could not have committed the murder which the applicant claims.
149. Even leaving aside the exact date and considering all of 2016, [Mr A] could not have committed this murder. He has been serving a life sentence in prison since at least 2003.
Counterfactual consideration of whether [Mr A] was out of prison in 2016
150. The Tribunal has also given counterfactual consideration to whether [Mr A] may have somehow been out of prison during 2016 and thus committed the murder.
151. However, the applicant also claimed he had told the police that [Mr A] had committed the murder and the police wanted him to be a witness to the murder case.
152. Yet in the articles provided by the applicant, two of which post-date the alleged murder in 2016, there is no discussion or mention or suspicion of [Mr A] committing or being responsible for such a murder around [July] 2016 or generally in 2016. This contradicts the applicant’s evidence of the police being informed of [Mr A] committing such a murder in 2016 and the police wanting the applicant to be a witness in the murder case.
153. Although unlikely, even if turning to consider the possibility that [Mr A] was out of prison during 2016, the Tribunal does not accept that [Mr A] committed the murder around [July] 2016 or any other date in 2016 as claimed by the applicant.
154. The matters raised above with regard to the applicant’s three return trips back to Tamil Nadu and lack of any harm over the past 9 years to the applicant’s family in Chennai, and lack of any media reports satisfy the Tribunal that the applicant did not witness [Mr A] commit a murder in 2016 or that [Mr A] and his gang are seeking to harm the applicant.
Credibility findings
155. The Tribunal does not believe the applicant’s evidence that he saw [Mr A] commit a murder around [July] 2016 or any nearby dates or in 2016 generally.
156. The Tribunal does not believe that the [A] gang have threatened to kill his family or gone to his house every 1 to 2 weeks to threaten his family and inquire about his return.
157. The Tribunal does not accept the applicant’s claim that he witnessed a murder by the gangster [Mr A]. The applicant’s claim is not credible.
158. The Tribunal does not accept that the applicant would be harmed by the gangster [Mr A] for witnessing a murder by him.
159. The Tribunal finds that the applicant’s claim of witnessing a murder by the gangster [Mr A] and fearing harm to not be credible.
FINDINGS ON THE EVIDENCE
160. The Tribunal makes the following findings on the material and evidence before it.
161. The applicant is from Chennai, Tamil Nadu, India.
162. The applicant is [Age] years of age presently.
163. The applicant has four siblings and his father in India. His [brothers] are in Tamil Nadu but outside Chennai and his sister is still living in Chennai. His father is also in Chennai.
164. The applicant has a wife and [children], all living in Chennai.
165. The applicant left India and came to Australia in 2016.
166. The gangster [Mr A] has been serving a life sentence in prison since 2003.
167. The applicant did not witness a murder by the gangster [Mr A] around [July] 2016.
168. The applicant has not been threatened by the gangster [Mr A] for being a witness to such a murder whether around [July] 2016 or in 2016 generally.
169. The applicant’s family in India have not been threatened by the gangster [Mr A].
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.

171. In Chan Yee Kin v MIEA the High Court held that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[7]
[7] (1989) 169 CLR 379.

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

173. 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.
174. The Tribunal refers to the credibility analysis undertaken above.
Fear of harm arising from witnessing a murder
175. The applicant claims he witnessed a murder by the gangster [Mr A] around [July] 2016 and due to being a police witness he would be killed upon his return to India.
176. The Tribunal has taken into account whether the murder could have occurred in 2016 generally.
177. The Tribunal refers to the above credibility analysis and finding that the applicant’s claim is not credible.
178. The Tribunal does not accept that the applicant witnessed a murder by the gangster [Mr A] whether around [July] 2016 or in 2016 generally.
179. The Tribunal does not accept that the applicant would be killed for witnessing a murder by the gangster [Mr A].
180. The Tribunal does not accept that the applicant faces a real chance of serious harm from the gangster [Mr A] in India as claimed by him.
181. As the Tribunal has found that the applicant’s claim is not credible, no further analysis can be undertaken as to whether protection obligations are owed.
Conclusion on refugee criterion assessment
182. The Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed in India on account of being a witness to a murder by the gangster [Mr A] as this claim is not credible.
183. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution due to fearing harm in India on account of being a witness to a murder by the gangster [Mr A] as this claim is not credible.
184. The applicant has made no other protection claims.
185. 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.

187. 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.
188. 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.
189. In MIAC v SZQRB it was held that the ‘real risk’ test under the complementary protection criterion imposed the same standard as the ‘real chance’ test under the refugee criterion.[8]
[8] [2013] FCAFC 33 at [246].
190. The Tribunal refers to the above credibility analysis and the factual findings in the assessment of the real chance of serious harm in the refugee criterion and relies on it.[9]
[9] 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].
191. 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.[10]
[10] [2021] FCCA 2024 at [34].

Fear of harm arising from witnessing a murder
192. The applicant claims to fear significant harm arising from witnessing a murder around [July] 2016. He fears that the [A] gang will kill him if he returns to India.
193. For the same reasons as set out in the above credibility analysis, the refugee criterion assessment and adopted here, the Tribunal finds that the applicant’s claim of fearing significant harm in India on account of being a witness to a murder by the gangster [Mr A] is not credible.
194. The Tribunal does not accept that the applicant faces a real risk of significant harm.
195. The Tribunal does not accept that the applicant witnessed a murder by the gangster [Mr A] whether around [July] 2016 or 2016 generally. The Tribunal does not accept that the applicant would be killed for witnessing a murder by the gangster [Mr A] as the claim is not credible.

196. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm.
197. As the Tribunal has found that the applicant’s claim is not credible, no further analysis can be undertaken as to whether protection obligations are owed.
198. The Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.
199. Other claims
200. No other claims were put forward by the applicant.
201. No other claims arose on the material before the Tribunal.
Conclusion on complementary criterion assessment
202. The Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.
CONCLUSION
203. 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) of the Act.

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) of the Act.
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) of the Act.
DECISION

206. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 30 July 2025
Representative: Mr Prabhat Dwarampudi (MARN: 1462995)

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.
…