2100277 (Refugee)

2100277 (Refugee) [2024] AATA 3539 (18 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2100277

COUNTRY OF REFERENCE: India
MEMBER:Rosa Gagliardi
DATE:18 July 2024
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 July 2024 at 9:11am
CATCHWORDS
REFUGEE – protection visa – India – imputed political opinion – physical assault – theft from business – threats to sign over the business – criminal gang – fear of killing – state protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 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 citizen of India (a matter the Tribunal accepts) applied for the visa on 2 February 2019.
The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2). The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India there is a real risk he will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 5 June 2024 to give evidence and present arguments.
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 in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J of the Act, and there is a real chance that if the applicant returned to India now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and whether he would suffer serious harm. Alternatively, the Tribunal must assess whether the applicant meets the complementary criteria.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
In his protection visa application, the applicant was asked to state why he had left his country. The applicant wrote that he left on a Visitor visa to visit Australia to meet up with his brother on the first occasion he travelled here. On the second occasion he came on the same Visitor visa as he had faced some violence when he returned back to his home country the first time. The applicant confirmed that he had experienced harm in his country.
Asked to provide details the applicant advanced (as written):
When I was in Australia during my first visit between June 2018 and August 2018, my [occupation 1] business was taken over by a mob who predominantly belongs to previous state government. I came to know this through my family. Upon my return I tried to open my shop but all the [specific products] and other previous items were stolen and the [storage] were broken in. Even my shop ownership documents were taken by them. I was physically harmed and assaulted when I tried to claim back my business. I personally do not know this mob but I was told by the other people from neighbourhood that they belong to political party who is not in power and this was they not only creates threat within the people but also steal’s people’s wealth who are vulnerable.
The applicant asked whether he had sought assistance within his country after the harm and the applicant responded, “Yes”. Further:
I went to local police to reveal the incident and get further help to get my lost property back. However they did not entertain me and in fact asked me to leave as I have no case. They asked me to produce the ownership documents of the business. They did not listen to a thing I had to say. I believe that they were bribed by the mob who took over my business and property. Unfortunately I was not provided with any help or support by the legal system as I was unable to file my case even after repeatedly visiting the authorities and other influence people.
The applicant was also asked to detail whether he had tried to move to another part of the country to seek safety and he responded, “No”. Asked to provide reasons why he did not attempt to move the applicant responded:
I have lived all my life in this small town of [Town 1] and have been raised in the culture. I have all my family and friends in this district. It is not viable for me to travel to any other part within my country as I will face severe financial hardship and it would be impossible for my elderly parents, my wife and young kids to move to new place and settle. Hence there is no point to move out of families current location as it would not reverse the situation. It is better for me to stay in Australia for few months until I can get some help to repossess my business and reestablish.
Asked to explain what the applicant thought would happen to him on return to India, the applicant responded:
If I return back to my town, the people who has taken my business will come to know and they will be alert again. They will think that I will start something against them and because of this they will try and attack me. Previously there has been cases of murder as well. Because I am not in India, at least they are not worried and letting my family alone. My presence anywhere in India will bring lot of stress to my family due to constant pressure of signing the ownership documents to this anti social mob.
The applicant was asked to set out the harm he was likely to experience and the people responsible for such harm. He wrote:
I will be constantly asked to transfer the ownership of my business and asked to give up my business. This will create a lot of violence and as mentioned above there has been some ugly stories in the past where people have lost their lives. I believe this would also bring my immediate family in threat as well.
The applicant stated that he did not think the authorities of his country can and will protect him if he returned to India because while he constantly tried to seek help, the applicant was unable to obtain any assistance and stated, “I have lost faith in receiving any help. Besides it is time sensitive, I need immediate protection. What is the point of getting protection after the harm has been done to me and my family”.
The applicant stated he did not think he would be able to relocate because, “all my family is in [Town 1] and me relocating means they have to relocate as well. As explained above it is not possible for us. Besides, I won’t be let alone until the property is transferred to the people who is after my business and wealth”.
Claims at the time of hearing
The applicant was born in the Punjab. He stated that his parents were living in India but also visited Australia on and off. Currently his parents were in India. The applicant stated that his father previously was [an occupation 2]. Asked how his father survived now if he was not working, the applicant stated that [his brother] was in Sydney, another was in Canberra, and another in India, so his parents had no need to work. [Another family member] was married and living in India. The Tribunal noted that his parents were able to travel to Australia frequently and he agreed.
Asked about his education the applicant stated that he went to [grade] in a public school and then completed [grade] in a private school.
The applicant stated that he first came to Australia in 2018 on a Tourist visa. The applicant explained he had worked for 14 years as [a related occupation 1]. He stated he learnt the trade from a teacher for about 5-6 years. Asked how he survived during the time of tuition, he stated that his teacher was giving him some pocket money. After he stopped learning the profession in 2005, he opened his own shop. The applicant stated that the business was going really well.
The Tribunal asked whether the applicant’s business was registered. He stated that it was when work started flourishing, he got it registered; in 2011 or 2012. Asked if it was still registered the applicant responded he was in Australia, so he had no idea whether it was registered or not.
The Tribunal asked when the applicant came to Australia in 2018, whether anyone else was looking after the business and he said he just closed the business down. The Tribunal expressed incredulity that he could just close the business. He stated that no one else had any knowledge of his work so he wrapped it up.
The Tribunal asked whether in the context of applying for a Tourist visa the applicant had detailed his business as his source of income. The applicant stated he had referred to his business and he was able to show he had 5 lakhs or so in his business account.
The applicant stated his business was called [Business 1] and was located in his home area in [Town 1]. The Tribunal scanned the internet and noted there was [an occupation 1] in the Punjab with that name, but it was not in [Town 1], and there was another in Amritsar. The applicant stated there was only one [occupation 1] in [Town 1] with the name [Business 1] and it was his. The Tribunal asked the applicant to submit the documentation he filed with the Department as part of his Tourist visa application showing he had money in the bank and that he had operated a viable business. The applicant stated it had been about 6 years ago, but he would try his best to obtain these.
The applicant stated that when he came to Australia initially in 2018, he stayed for about 2 months. He then returned to India for about 2 and a half months. Asked what he did during that time in India, the applicant responded he did not do any work. By the time he had returned to India his shop had been robbed. The Tribunal asked how it was robbed and the applicant stated he had put locks on his shop, but someone cut these and put new locks on top those.
The Tribunal asked the value of the stolen goods in the shop. The applicant responded it was very costly now, but then he had [an amount] of [one product] valued at around 10 Lakh which he had lost. The Tribunal asked whether the applicant had reported the matter to the police. He responded that he filed a report, but they asked for proof he had been robbed which he did not have. The police said that he was making up the story about having been robbed. The Tribunal asked whether a First Information Report (FIR) had been submitted. The applicant stated no because the police said that he was just making up that there was nothing left in his shop.
The Tribunal asked whether the robbers caused damage inside the shop or did they neatly just go about stealing [stock]. The applicant stated there was [storage] that had some [other products], and they opened that [storage] and took everything, but no damage was done to the shop.
The Tribunal stated it had difficulty accepting that the police would not draw up a report if he had reported a serious crime. The applicant stated that [Town 1] was [in a specified region] and there was no law and order, and they should have filed an FIR, but they accused him of inventing the story about having his shop burgled and having been taken over because he did not have evidence. The applicant stated he just did not have evidence.
The Tribunal asked whether the applicant filed an insurance claim, and he responded that people did not take out insurance policies during those times.
The Tribunal asked did he know who had robbed his shop given he was in Australia when it happened. The applicant responded he did not find out while he was in Australia that they had unlocked the shop and took everything and then locked it up again. He only found out when he returned to India in 2018. He stated that he inquired of nearby people but even if he told anyone they would say you are just blaming “them” as nothing had happened to his shop. The Tribunal asked the applicant whether he knew who the culprits were. He responded there was a main group from elsewhere - they were the ones who robbed shops. It was like a mafia group. The Tribunal asked whether they were ordinary criminals. The applicant stated he had spoken to some people and suspected them, but they became violent, and said you are blaming us, but we have done nothing. The applicant added, and yes, they were criminals.
The Tribunal asked whether he wanted to say anything else about what had happened to him. He replied that for more than two months he wandered around trying to find proof of the crime, but the police said if he did not have proof, they could not do anything. The applicant stated that the area he lived in was backward and if you bribed the police they would work in your favour.
The Tribunal put to the applicant information under s.424AA of the Migration Act, explaining the purpose of the natural justice provision.
The relevant information was that in his application the applicant had written that he tried to open his shop but his stock including [specified products] was stolen and that even his shop ownership documents were taken. He had stated he was physically harmed and assaulted when he tried to get control of his business and that the culprits belonged to a political party not in power.
The Tribunal explained that the information was relevant to the review because the applicant had never mentioned at hearing that these people were politically connected. If the Tribunal relied on this information, it would find that even after asking several times who these people were, the applicant did not mention them having a political dimension and would find that none of his account about being robbed was genuine. If the Tribunal relied on this information, it would also not accept that either political figures or anyone else damaged his shop in the Punjab.
The applicant declined a break and responded that the criminals who were robbers work under their leadership. The Tribunal asked the applicant to specify which party was not in power and was associated with the criminals. The applicant hesitated and stated there were so many parties, but he was not sure who was not in power at the time. The applicant replied that it had been six years now and whoever prepared his case…maybe the applicant did not explain properly as his English not that good.
The Tribunal asked the applicant whether the Chamber of Commerce of Punjab would be able to provide a letter to the Tribunal to say the applicant had to close the business due its theft and to confirm the applicant had been the owner of [Business 1]. The applicant stated he would try but needed some time. He could not assure the Tribunal he would get such a letter as it had been six years. It was also very hot in India at the moment and many businesses were closed.
The Tribunal asked the applicant to explain precisely what he meant by people took over his business and property. The applicant confirmed he had been renting the premises of his shop, but they tried to take over his shop - those mafia and criminal-types.
The Tribunal asked the applicant to explain how he was assaulted. The applicant stated he was very angry and asked them why they tried to take over his shop and they started beating him. He suspected them, but they said if you do not have any proof how can you prove it was us.
The Tribunal sought further details about these events from the applicant, for example, how many people had been involved in beating. The applicant stated there were two or three and he was arguing with them. The Tribunal asked where such an altercation took place and the applicant responded they were about 100 metres away from the shop, but it had been a long time and he could not remember. The Tribunal noted that he would have lease documents for rental of the business premises, and he confirmed this was the case. He would talk to someone and see if he could provide these.
The Tribunal asked whether there was anything in the media in terms of this forced takeover of the shop to support his claims. The applicant stated no.

The Tribunal asked the applicant what he feared on return to India. The applicant stated he did not have any job to survive. The Tribunal noted he was a [generic occupation 1] so would it be possible for him to start up a new business in an urban centre such as Mumbai. The applicant stated [Town 1] was a small place and he could not afford to buy something there (in Mumbai) to survive. Everything was so expensive. In his area things were very cheap but if he went to a big city, it would be difficult as he had a wife and two children in India.
The Tribunal queried whether the applicant’s wife or children had been harmed by these criminals. He responded no they had not been attacked, harassed or assaulted by anyone. Asked if his parents were safe, the applicant responded there had not been a complaint filed in his name, but if he returned, he would get into trouble and would get “into the picture again”. The Tribunal encouraged the applicant to speak about how these criminals harmed him. He stated they pushed and punched him but there were no marks. Asked if the applicant had had his injuries looked at by someone in a medical clinic, the applicant responded that he only went to the clinic nearby and got pain killers - nothing else. The Tribunal asked if it was possible for the applicant to provide a letter from the clinic explaining why the applicant had attended. The applicant stated he could try but, in those clinics, so many people came and went, and they may not have kept such records.
The applicant during the hearing was at his work premises and excused himself to attend to a customer who wanted a [specified service].
On resumption, the Tribunal observed that in his application the applicant had written that he had tried to go to the authorities to report the crime to no avail, but that he also went to “influential people”. The Tribunal asked who precisely these influential people were. The applicant responded that he went many times, but they said if you haven’t any proof, we cannot do anything. Again, the Tribunal asked the applicant who precisely these influential people were. He stated he might have gone to a councillor or some well-known person but could not recall their names.
The applicant confirmed that his wife was still living in the same area and stated that his [children] were [specified ages]. The applicant stated they went to school. His wife did not work but he sent them money as he worked in Australia. Asked what work he had done in Australia, the applicant replied that he undertook [a specified service] and was an [occupation 3], but most of the time he did [this specified service].
The Tribunal asked the applicant what he feared on return to India. The applicant stated it was hard to settle a new business. He had lost his connections with clients and in that small city ([Town 1]) it would be hard to start again, and his position financially was not strong to be able to open a business in a big city. The Tribunal asked whether there might be other impediments to him and his family living in a big city. The applicant stated he would never be able to settle down, even though the Tribunal highlighted that he had been able to settle down in a foreign country like Australia. The applicant stated that here he could survive because he was working. The currency rate assisted.
The applicant stated that all these events had occurred a long time ago and he may have forgotten some things. The Tribunal told the applicant he could put anything he might recall later in writing and send it to the Tribunal.
The Tribunal gave the applicant until 26 June 2024 to provide evidence of his business and lease arrangements and documents from the Punjabi Chamber of Commerce advising what had happened to the applicant’s shop, and whose name the business was currently registered in. The Tribunal also asked the applicant to provide any documents he might have submitted in relation to his Tourist visa application.
On 24 June 2024 the applicant wrote to the Tribunal stating he was unable to retrieve any documents. He stated he had been living in Australia for a long period and had lost all his connections and his parents were too aged to help him. He wrote that he had made some efforts himself, but the situation did not work out. He also wrote, “I am not financially sound to bear the consequences of my future status because my family is dependant on me. It’s getting very frustrating with stress and some health problems from the time I got these notifications and even losing focus on my daily life. I feel insecure about my status as per my circumstances. I don’t have any path for my future”. The Tribunal responded to the applicant advising that it was very important he receive support during this uncertain time and the Tribunal would recommend he seek assistance from a medical professional to discuss his circumstances and how he was feeling. The Tribunal also provided the applicant with the number for Lifeline noting it was a free service.
Shortly thereafter the Tribunal received from the Department the applicant’s Tourist visa file. The Tribunal considered that the applicant might be stressed further by putting its content to him, but ultimately found that the natural justice provisions took precedence, and the material was put to the applicant for response by 17 July 2024. The relevant s.424A letter is set out below:
The particulars of the information are:
· Departmental records demonstrate that you opened your savings account with [Bank 1] prior to lodging your subclass 600 visa and withdrew all the money before travelling to Australia. Your other bank accounts showed you had also withdrawn all your money from those accounts prior to travelling to Australia.
This information is relevant to the review because the Tribunal may have cause to question why you did so, and whether it was because you intended to come to Australia to achieve a migration outcome via a protection visa and not because you had a well-founded fear of persecution on return to India, now or in the reasonably foreseeable future.
If the Tribunal relies on this information, it may find that on coming to Australia you on a Visitor visa you were setting yourself up to remain permanently and that the protection visa application was one of the few options for you to do so. Had you left some of your money in the bank and had you had a genuine [occupation 1] business operating in [Town 1], your bank statements would have demonstrated that you had at least some funds in your accounts for such a business to remain solvent. If the Tribunal relies on this information, it may also find this matter goes to your credibility in terms of ever having had your business ransacked and your stock stolen because the Tribunal would find that you never had such a business called [Business 1] in [Town 1 variant] as claimed, and that therefore you do not fear mobs associated with opposition political parties.
·At hearing the Tribunal had a cursory look on the internet to try and find evidence of the existence of your claimed business [Business 1] in [Town 1 variant] but was unable to do so. The Department also attempted a google search but no direct link was found to [Business 1] in [Town 1 variant]. Below is a list of the [occupation 1] shops found on the internet which does not include [Business 1].
[Occupation 1] Shops in [Town 1] District – [Source deleted.]
The Tribunal notes that there is a [Business 1 name variant] in [Town 1] but you have not claimed this is the name of your business and there is also a [similar name variant] specialising in [different products]. There is also a [Business 1] but this appears to be in [a different location] (see [Business 1] [Source deleted]).
The Department also noted that you provided in respect of your Visitor visa application letterhead for your business and a visiting card, but that the card contained spelling errors. Contact details such as a full address including shop number and a landline number were not available on the letterhead and visiting card.
This information is relevant to the review because the Tribunal may find that the absence of a landline number and other anomalies referred to may be indicative that [Business 1] in [Town 1] has never been in operation or owned by you. This is particularly so as you have not provided evidence of lease arrangements for the business, taxation information, registration documents, or a letter from the Punjabi or other Chamber of Commerce certifying that you had ever held [Business 1] in [Town 1], as requested by the Tribunal.
If the Tribunal relies on this information in making its decision, it may find that you have fabricated your claims of having had your business taken over by mobs with affiliations to the opposition political party, and that they denied you entry into the business by locking it with another lock and generally took over the business leaving you without an income, because the Tribunal may not accept that you ever owned such a business called [Business 1] in [Town 1].
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Credibility
The applicant has been on notice since the Departmental decision that his claims for protection were vague and that he should provide all of the details of his claims together with any documentation to support his claims. The Tribunal notes that on 29 October 2020, (closer to the time the applicant claims the alleged events took place), the Department wrote to the applicant under s.56 of the Migration Act, inviting the applicant to provide additional information about some of the claims in his application and to provide clarification on particular points. The invitation advised the applicant that his statement of claims lacked substantiating details such as dates, locations and supporting documentation. The applicant was also asked to comment on the length of time between his second arrival in Australia and lodgement of his application as there was a delay. The applicant claimed to have returned to Australia in 2018, yet the application was not filed by him until 14 February 2019.
The letter from the Department also advised that if he could not provide copies of documents or details of his claims as requested, he should provide a detailed explanation as to why he could not provide additional information, and of any efforts he had made to obtain such information. As at the time of writing its decision on 20 December 2020, the Department had received no communication from the applicant and the Department proceeded to make a decision on the material before it. As will be explained below, such details of the applicant’s claims continued to remain vague, general and imprecise at the time of review.
Existence of [Business 1] in [Town 1]
The Tribunal is perplexed as the Departmental decision refers to “Property Dispute in India” which does not characterise the applicant’s claims fulsomely. The applicant is claiming that in travelling to Australia in 2018, he had left his business unattended and that during that initial trip to Australia the applicant’s business had been ransacked, robbed and on return to India, he had been denied access to the business by thugs who the applicant claims are affiliated with a political opposition party. He also claims he was beaten by these thugs who denied they were responsible for the robbery. In addition, the applicant claims the thugs wanted him to sign his business over to them.
While the Department might have had some concerns with the applicant having withdrawn funds from his account prior to travelling to Australia, and even accepting that the paperwork related to the applicant having held a business in [Town 1] is not extensive, and that the purpose of the applicant’s travel (Tourist visa) might have been considered “non-genuine”, the Tribunal considers that, having careful regard to the evidence recently submitted, such limitations in the material submitted regarding [Business 1], should not be conflated with the business never having existed. On the evidence recently submitted by the applicant, the issue for the Tribunal is now not that the business never existed. The Tribunal instead holds serious concerns about the applicant’s claims that such a business was robbed sometime while the applicant was in Australia on the first occasion, by unidentified persons who worked at the behest of an unidentified political opposition party and that he was beaten by these unidentified persons because they wanted the applicant to transfer ownership of the shop to them.
The applicant has submitted several tax invoices demonstrating an income over several taxation years. The Tribunal notes that the income is not extensive and that the taxation documentation does not specifically refer to the type of business the applicant held in [Town 1]. On the strength of other evidence submitted, however, the Tribunal accept that these relate to the earnings of the applicant’s business, [Business 1], and that the applicant at some point was the proprietor of such a business. The Tribunal also makes allowances for businesses which might be set up in a small town in India that do not have an online presence. The applicant may simply not have had the funds to establish such a presence, and the Tribunal is satisfied from the other persuasive evidence that a lack of an online presence does not mean that the business, [Business 1], did not exist at some point prior to 2018. In terms of spelling mistakes on the business card and the limited details on the letterhead of [Business 1] submitted to the Department as part of his Tourist visa application, the Tribunal does not dismiss that the business existed on the basis of such minor anomalies.
The Tribunal has had regard to the applicant’s response to its s.424A letter in which he has now submitted a photo purporting to be of him and others in the [occupation 1] shop. The Tribunal is prepared to accept that at least over 2015-2018, the applicant was proprietor of a business called [Business 1] in [Town 1]. What occurred after 2018 is what is in dispute for the Tribunal in terms of the evidence.
The Tribunal is also prepared to accept that the applicant did not withdraw funds from his [Bank 2] account as the Tribunal had claimed in its s.424A letter, because as the applicant stated in his brief submission to the Tribunal via email on 15 July 2024, this is untrue. Indeed, the applicant submitted a copy of his [Bank 2] account containing funds in 2018 and accepts that as far as this account is concerned, the applicant did not drain all his bank accounts prior to coming to Australia. Nonetheless, the Tribunal finds that most of the applicant’s conduct in winding up his affairs in India point to the applicant having come to Australia on the second occasion to apply for a protection visa when his options for remaining here permanently and lawfully had narrowed and he wanted to achieve a migration outcome.
Claims the applicant’s business experienced theft during his absence from India on his first travel to Australia, and that he experienced serious harm at the hands of mobs working for an opposition political party who might murder him
The Tribunal has concerns about the circumstances in which such a business had been shut down and rejects that it had been due to mobs who denied the applicant entry to his business, who beat him telling him he had no evidence as to who the culprits were, and that he could not impugn them.
The Tribunal has concerns that the applicant has not been able to obtain documentation such as from the Punjabi or [Town 1] Chambers of Commerce, accounting figures as well as the local authorities, about the fate of the business after 2018, to determine whether it was consistent with the applicant’s claims that currently his business had been taken over forcibly and robbed by mobs acting on behalf of an opposition party, and that the mobs want the applicant to sign transfer documents handing over the business. The Tribunal finds that such information has not been submitted to the Tribunal because it would not support the applicant’s claims he had been forced to relinquish his business and had experienced violence at the hands of the perpetrators. The Tribunal would have expected, for example, the regulatory authorities to know the circumstances of any arrangement the business was currently trading or not trading under.
The Tribunal acknowledges that the applicant has stated that during the course of the robbery at his business, the culprits also took all his ownership documents to explain why he has not been able to provide supporting information about the trajectory of the business after 2018. Even if the Tribunal were to accept this explanation (and it does not), the Tribunal would have expected business regulatory authorities and other individuals could provide evidence of how the applicant was required to abandon his business to thugs and escape to Australia as claimed. For example, the relevant Chamber of Commerce which would keep records of businesses registered and dates they might have become unregistered if this was the case.
The applicant stated that the business was not insured at the time of the robbery, his explanation being that people did not have insurance at that time. Even if the Tribunal were to accept that in a small village in 2018 people were not inclined to take out insurance, the Tribunal considers it implausible that the applicant on coming to Australia for a holiday and leaving the business vacant -“shut down” as he claimed at hearing, would not have considered the importance of ensuring he was insured for any theft that might occur, and the Tribunal rejects that this is the case. This is particularly so as the applicant claimed that he had [specified products] that were worth a good deal at the premises. The Tribunal finds that the lack of insurance for the business on his return to Australia indicates that the applicant had willingly wound up the business so he could establish himself in Australia on return on the second occasion in 2018. The Tribunal does not accept that the applicant even being a business in a remote area would not have insured his business against loss, given he claimed that no one was taking care of the premises in his absence. From the photo it would appear that the applicant’s business had been a not insignificant enterprise. For example, the applicant was not selling [products] in a bazaar environment without shelter as it seems to been a fully-fledged business/shop.

The Tribunal finds it difficult to accept that the applicant is unable to provide verifiable evidence of the claimed robbery itself. The Tribunal asked the applicant if he had insurance documents because these would reveal whether he had made a claim to have reparation for the stolen [stock]. The applicant has explained away the lack of such an insurance claim by stating he never had insurance. Consistent with the Tribunal’s concerns, however, the Tribunal finds that the reason for the applicant not being able to demonstrate that he had goods stolen from his business is because by the time he returned to Australia a second time, that business had been transferred to another owner lawfully or voluntarily shut down by the applicant and he was no longer the proprietor of [Business 1]. The Tribunal considers that this is the reason the applicant has not been able to provide verifiable contemporary evidence of continuing to have such a business that was forcefully taken over by other unidentified persons who wanted him to sign over the business to them. The Tribunal does not accept that the applicant would not be in a position to obtain documentation from a range of sources to demonstrate that he had had to abandon his business because thugs secured the premises with new locks.
The Tribunal accepts that applicants are not required to corroborate their claims to be believed, on the other hand, where it can be reasonably expected that there would be a plethora of documentation that would have been generated in the usual course of owning a business, the Tribunal would have expected that the applicant could provide something to demonstrate that his business was overrun by criminals who acted on behalf of an opposition political party and that he had left that business in abeyance on returning to Australia on the second occasion.
The applicant has initially stated that his parents are old, and he could not rely on their assistance to obtain documentation regarding his business and in terms of the documentation submitted it had now been 6 years, so he could not provide anything further that was relevant. The Tribunal observes, however, that in relation to his parents, the applicant has himself stated that they travel to Australia frequently, presumably to see their [other children] who are in Australia, as well as the applicant himself. The Tribunal cannot see why, if the applicant’s parents are mobile and able to travel and they consider that their son’s life is in danger in India, they would not have assisted the applicant to obtain critical information to support his claims that he had a business that was targeted by mafia-type thugs who did the bidding of an unidentified opposition political party.
Even accepting the applicant could not rely on his parents to assist him with obtaining official documents, it is unclear why the applicant himself could not approach the Punjab Chamber of Commerce via email or by other electronic means (or that of [Town 1] if such a Chamber exists), to provide evidence about what happened to the business after 2018. The applicant would be able to show that he is no longer paying the lease, for example, if that is the case and any arrangements he might have entered into with the landlord because he could no longer continue with the business. The applicant claims that it was all so long ago, but the Tribunal does not accept that in [Town 1] substantial businesses like [Business 1] were not registered and regulated and subject to various operating conditions which would have been written down, and that if the business was still in the applicant’s name, he would not be able to provide evidence of such. The relevant Chamber of Commerce would have been able to indicate, as would lease documents how long his lease was for, and whether it was still extant because the applicant as yet had not signed over his business to the thugs who wanted to kill him.
It is also implausible that the applicant would not have other documentation such as accounting/legal material to demonstrate that he is still on paper at least the proprietor of [Business 1]. The Tribunal cannot make the applicant’s claims for him. He stated that his business had been running well prior to the break-in and therefore the Tribunal would have expected that any accountant looking after the applicant’s business would have been able to provide compelling information demonstrating that the applicant had been deprived of his sole source of income in India by thugs connected to an unspecified former State government.
Rather, the Tribunal finds that this lack of probative evidence about what happened to the applicant’s business after his second visit to Australia, and deficit of current information demonstrating he was or was not still the proprietor, leads the Tribunal to place significant adverse weight on the applicant not being able to substantiate his claims – claims that would not be difficult to make out with credible evidence.
Adding to the Tribunal’s concerns that the applicant ever had a business taken over or had the contents of his business stolen and denied access to the premises, is the applicant’s vague and general evidence as provided at the Tribunal hearing on critical aspects of his case. The applicant claimed that he had been advised by his family in India that his shop had been robbed but did not provide any detail to convince the Tribunal that such information had ever been passed on to the applicant. He was unable to provide a date for when such advice was provided to him and how, only stating that on return to India a second time he found out that the locks on his business premises had been replaced.
The Tribunal appreciates that not everyone has perfect recall of events that might have happened 6 years ago. Nonetheless, the applicant provided little context to his claims that would convince the Tribunal that he had faced the devastating realisation that he had lost his source of income on return to India, or that he had made any realistic attempts to seek redress via insurance, the police or any local authorities and influential people, without even being able to identify such influential people. The fact the applicant returned to Australia instead of remaining in India to try and resolve the matter belies the applicant’s claim that his source of income had been taken over and points instead to the applicant attempting to achieve a migration outcome instead.
The applicant has asserted on several occasions that he did go to the police to report the attempted criminal takeover of his business but has not been able to provide even rough dates when he might have approached any authorities. The applicant has claimed that the police will always act in favour of those who bribe them, yet the applicant appears to have had the confidence to report this matter to the police on several occasions, indicating a level of trust in their ability to assist him. In any event, given the little detail about when and how the applicant approached the police, and given the applicant could only provide general rather than specific information about his approaches to the police, the Tribunal does not accept that the applicant ever went to the police or any authorities or influential people to report such a criminal matter, because based on the information before it, the Tribunal does not accept that such a criminal event ever occurred, being the robbery and attempted takeover of his business, [Business 1].
The applicant only referred to having tried to lodge a First Information Report (FIR) when the Tribunal mentioned what had happened in terms of this usual procedure in reporting a crime in India.[1] The applicant did not speak spontaneously about this matter to convince the Tribunal that the events he claims happened at some police station/s actually occurred. The applicant stated that the police did not file a report because they did not believe him about the shop being robbed, that they told the applicant that he had no proof, and therefore they would not investigate the matter or file an FIR.
[1]
The Tribunal accepts that the police in India are susceptible to corruption[2] and do not operate at a high standard, nonetheless, however, the applicant’s repeated claims that the police would not have at least entertained the applicant’s several reports that his business was threatened to be overtaken, he had been robbed and furthermore, was in danger of being murdered by the thugs acting for an opposition political party, were general and not placed in time and context.
[2] Ibid (5.6). The report states that a 2019 Status of Policing in India Report found that two in five police officers surveyed said that people were hesitant to rely on them and that those who contacted police may well have taken a bribe from them. Some police stations are also poorly equipped to fight crime and may lack access to basic amenities such as running water or toilets. The Union Minister of State for Home admitted in March 2023 that dozens of police stations do not have access to a vehicle and hundreds do not have a telephone. Some police complain they are overworked or lack adequate training.
Failing assistance from the police the Tribunal is not clear why the applicant did not approach the Chamber of Commerce to advise that his business had had the locks changed and that he would no longer be able to operate it to ensure he did not attract any liability for unpaid registration fees, or any other such realistic detail to convince the Tribunal that such mobs had actually threatened the applicant and denied him access to his own premises. The applicant has stated that he went to see various officials but even at hearing was unable to say clearly who such officials were simply stating it was a councillor and an important person. It is also implausible that to obtain evidence of the applicant having had his ownership documents taken by the mob who robbed his shop, the applicant did not seek assistance from the Chamber of Commerce to obtain copies of documents verifying his ownership to provide to the authorities to start investigating.
The Tribunal also has serious concerns about the applicant’s claims that the mob who had taken over his business and were looking for him to sign over the business to them had political connections because the Tribunal does not accept that such mobs ever did try to take over the applicant’s business. Given the applicant was only able to refer to this claimed mob as an amorphous group of two or three people without indicating any particular characteristics about these people and where they might have originated from except to say they came from “elsewhere”, the Tribunal rejects that such a mob ever existed. The applicant has also provided little detail about how he knew the mobs were politically connected and why an opposition party (who he could not refer to) could act with impunity. Had the applicant been assailed by persons connected to the political opposition party, the mob’s strength in terms of political clout would have been diminished because the state’s apparatus would be acting in the interests of the party in power, and not that of an opposition party. These concerns add to the Tribunal’s overall difficulties with the applicant’s lack of specificity about key events and rejects these ever occurred.
Nor does the Tribunal accept the applicant’s claims that he wandered around for several months in [Town 1] looking for the perpetrators who were looking to take over his business, and randomly came across such thugs 100 metres from the business premises. The applicant’s evidence in this regard was laboured and he needed significant prompting to tell the Tribunal where such an event (the beating) took place. Further, when the Tribunal asked the applicant as to whether he might have evidence that he had sought medical treatment and the reason for such treatment, the applicant minimised the effects of the beatings by stating that he just took pain killers. This critical event – the beating - was also shrouded in vagueness with the applicant unable to spontaneously pinpoint roughly when such an event took place. The Tribunal finds that the consistency in vagueness about the applicant’s claims have arisen because the beating never occurred, and the Tribunal rejects that it did.
The applicant claims he does not know who these thugs who wanted to take over his business were and was not able to advise why they wanted to take over the business via criminal conduct. He only knew that they were aligned with an opposition political party that the applicant could not provide the name of during the hearing and that he had been told by “people” in India about this.
It also seems implausible that this mob would not, in the applicant’s absence, approach the applicant’s wife to pressure her to persuade the applicant to sign the business over to them. The Tribunal would have expected that had they been intent on getting the applicant’s signature they would have used his wife as a middle person to achieve their end.
Given the Tribunal has rejected that any of the events (barring that he used to own a [occupation 1] business in [Town 1]) ever occurred in the past and that no state or other non-state actors have acted in the way the applicant claims to harm him, it follows that the Tribunal does not accept that there is a real chance that they would so on the applicant’s return to India now or in the reasonably foreseeable future.
In summary, the Tribunal does not accept:
·[Business 1] was taken over physically by a mob sometime in June 2018 – August 2018, or at any time.
·upon the applicant’s return to India in 2018 or at any time his shop was taken over by a mob who belonged to a previous state government but who was now in opposition, because the Tribunal does not accept that such a mob ever existed.
·his [specific products] and other [items] were stolen, the locks broken and replaced with other locks and his shop ownership documents were taken over.
·the applicant was ever harmed physically and assaulted about 100 metres from his shop, or anywhere else, when he tried to claim back his business, by a mob or anyone else.
·the applicant went to the local police to report the incident to get help to get his lost property back, but they asked him to leave as he did not have proof of the crime and he did not have ownership documents.
·the police kept saying the applicant had made up a story about his shop having been robbed and the applicant was subject to threats by the responsible mob to sign over the business to them.
·the applicant was not provided with any help or support by the legal system as he was unable to file his case even after repeatedly visiting the unidentified authorities and influential people.
·if the applicant returns to his town the people who had taken or wanted to take his business will come to know and they would be on alert again. They would think the applicant started some action against them and they would try to attack him and previously there had been cases of murder.
·that the applicant will face serious harm by way of physical attacks or will face murder on return to India.
·the applicant’s presence anywhere in India will bring a lot of stress to his family due to constant pressure to sign ownership documents to any anti-social mob.
·the applicant will be constantly asked to transfer the ownership of the business to the mob, and he could lose his life and his family could also be under threat.
·the applicant will not be left alone until he transfers his business and wealth to an unspecified mob the Tribunal does not accept ever existed.
The Tribunal accepts that the applicant has fears about not being able to provide for his family in [Town 1] if he returns there and that he does not want to move away from the area to earn a living because he wants to be close to his aged parents and has concerns he and his family could not thrive in another area of India. The Tribunal does not doubt that it will be difficult for the applicant after many years of living in Australia to readjust to life in India, but the applicant has run a business in a small town in India and would have skills in retail and as a [generic occupation 1] in making [products 1]. He has also turned his hand to [the specified service] and has taken advantage of newer opportunities in the economy in Australia such as [occupation 3].
The Tribunal accepts that life in some urban centres in India are more expensive but as the applicant has adapted to life in Australia, a vastly different country to his home country, the Tribunal finds that to survive the applicant would be able to spend some periods away from his family to make funds to support them, just as he has done in Australia. While the Tribunal appreciates that the currency rate in Australia means that the applicant’s family can have a higher standard of living if he continues to work in Australia, the Tribunal has no evidence that for example, he will face significant economic hardship that threatens his and his family’s capacity to subsist; he would be denied access to basic services, where the denial threatens the applicant and his family’s capacity to subsist; or that he would be denied the capacity to earn a livelihood of any kind, where the denial would threaten the applicant’s and his family’s capacity to subsist.
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).
Complementary protection
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 has also considered whether it has 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. The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution. The Tribunal having rejected the applicant’s claims, individually and in their totality, finding that there is not a real chance that the applicant will face serious harm on account of any s.5J reasons, finds that it is not satisfied that there are substantial grounds for believing that there is a real risk he will suffer significant harm due to any adverse profile with any state or non-state actors in India and the Tribunal rejects that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment by non-state or state actors.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
Member

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.
…

National Commission for Scheduled Castes, How to file a Police FIR/complaint online How to file a Police FIR/complaint online (ncsc.nic.in). According to this website an FIR is a written document which is prepared by the police in India. It is prepared when the police receive information about the commission of a cognizable offence. In simple terms, it is a complaint lodged with the police by the victim of a cognizable offence or by someone on his or her behalf, but anyone can make such a report either orally or in writing to the police. People in some parts of India can also lodge an FIR through an online medium. In reality, however, the Tribunal accepts that registration of FIR depends on individual police officers and can be arbitrary. See Australian Government, Department of Foreign Affairs and Trade, Country Information Report India, 29 September 2023, country-information-report-india.pdf (dfat.gov.au) (5.6).

[2024] AATA 3539

18 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Appeal