2100930 (Refugee) - [2025] ARTA 1687

2100930 (REFUGEE) [2025] ARTA 1687 (27 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2100930

Tribunal:Clyde Cosentino
Date:27 June 2025

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

Statement made on 27 June 2025 at 11:15am
CATCHWORDS
REFUGEE – protection visa – India – fear of harm from business owner – business fraud – fear of killing – detention – physical assault – suicide of colleague – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIAC v SZQRB [2013] FCAFC 33
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 for Home Affairs on 15 January 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of India, applied for the visas on 19 August 2019. The delegate refused to grant the visa on the basis that the applicants do not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and do not satisfy any of the other criteria in s 36(2) of the Act.
The applicants appeared before the Tribunal on 28 April 2025, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicants were represented in relation to the review.
BACKGROUND
Evidence before the Department
Protection visa application
In the protection visa application, the applicants provide the following information:
·The applicant and second applicant have been married since [February] 2009.
·The second, third and fourth applicants are listed as members of the same family unit of the applicant.
·The applicant was born in Haryana and the second applicant was born in Punjab.
·All the applicants are identified as Indian Citizens.
·The applicants arrived in Australia [in] August 2019.
·The applicant was a self-employed [occupation 1] from 2013 until he departed for Australia.
·When asked why he left India, he claims:
I was working alongside [Mr A] and two other partners in a firm called [Business 1].The firm had a duration of around 1 year to do the business.
[Business 1] [Partner] [Mr A] was required to purchase [product 1] stocks for [Business 1] and [related Business 2] deliver the [product 1] stock to all the local [number] [product 1] shops around [District 1] Haryana.
I and [Colleague A] were the main people that looked after all [Business 1] [number] local [product 1] shops. We were also known as the best people to communication in between all there [number] local [product 1] shops labour and [Business 2].
·When asked whether he experienced any harm in India he claims he did. He claims:
I also worked in the Firm as [an occupation 1] … I discovered that [Mr A] was involved in money scam and fraud in to the firm during his [product 1] purchase and when we give him all daily cash collection. [Mr A] was so upset with me and started to threaten me, he offered me … money to keep my mouth shut and not tell anyone.
·When asked whether he sought help within India he claims he did. He claims:
Once [Colleague A] talk with [Mr A] our ([the applicant] and [Colleague A]) bad time start.
[Mr A] as he has good connection with Police and
Political, he used everything on us such as: -
1. [In August] 2016 he started to harass with local goons and stop us
to come to the firm [Business 1] office.
2. He stopped pretty much all suppliers and out local [product 1]
shops labour to deal with us with money and reporting even
labour started to not listen and follow our instruction.
3. We felt like we are nothing into the firm.
4. Later on they threatened my wife and made so much trouble on
her workplace as well. I was very scared when they did so much
misbehave with me and my wife in front of my kids and into the
market.
5. [Mr A] always pushed me to not come to the office.
·When asked whether he tried to move to another part of the country he claims he did. He claims:
“Please refer to the Protection Claim Statement”.
·When asked what he thought would happen to him if he returns to India, he claims:
“Please refer to the Protection Claim Statement”.
·When asked whether he will suffer harm or mistreatment if he returns, he claims yes. When asked why he would be mistreated or suffer harm if he returns, he claims:
[Mr A] also caused me to go to jail for [number] nights where I was badly beaten by the police goons and threatened for life as well. After spending lot of money and efforts my family got me out from the jail.
·When asked whether the authorities of India can and will protect him, he claims no. He claims:
“Please refer to the Protection Claim Statement”.
·When asked whether he could relocate to another part of India, he claims no. He claims:
“Please refer to the Protection Claim Statement”.
Evidence provided to the delegate
The following supporting evidence was provided to the delegate:
·An email sent to the department on 30 October 2019 from the applicants’ authorised representative attaching the following documents:
oAn account statement from the [Bank 1].
oAn Indian Income Tax Return Acknowledgement for [Business 1] (2017/2018) indicating a refund to [Business 1].
oBalance Sheets, trading accounts, financial statements and other financial documents relating to the financial operations of [Business 1].
oNAATI accredited Translation of First Information Report (FIR) of [Colleague A’s wife] of the suicide death of her husband lodged at the police station in [City 1], Haryana and dated [in] September 2019. No original FIR is attached to the translation. The Tribunal notes the following points in the translated FIR:
§[Colleague A’s wife] states in one part of the FIR: “In the house my husband [Colleague A]…”. She then states in another part of the FIR: “Then I called [Colleague A]…”. She later states in the FIR: “I saw that my husband [Colleague A]…”
§In the FIR as translated, [Colleague A’s wife] states:
“When I arrived at around 2pm after taking leave from my [workplace], I saw a boy named [Boy A] standing outside my house, who asked me straightaway where is [Colleague A], as he is not picking up my call. I said I have just come back from [workplace].”
Then that boy said that you call. Then I called [Colleague A] using my phone. Phone was ringing no one picked up so I went inside the house. At that time my maid about my husband whether [Colleague A] has come home.
To this my maid [Maid A] replied that I don’t know whether he has come or not. However, at around 12, 12:30 there was a noise of coughing coming. I then asked if there was any person who came to meet [Colleague A]. To this the maid replied that she had seen no one.
After this when I went upstairs and opened the door, I saw that my husband [Colleague A] was hanging from a ceiling fan tied with a cloth…
·A further email sent to the Department on 30 October 2019 from the applicant’s authorised representative attaching the following documents:
oBalance Sheets, trading accounts, financial statements and other financial documents and income tax returns relating to the financial operations of [Business 1].
·An email from the applicants’ authorised representative dated 31 October 2019 attaching a submission on the applicants’ behalf. No separate statement was provided by the applicants.
Delegate’s decision
As stated above, the delegate refused to grant the visa on the basis that the applicants do not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and do not satisfy any of the other criteria in s 36(2) of the Act.
The delegate indicated in the decision as followed:
[On] 01 December 2020 the applicants were sent a letter inviting them under s56 of the Act to provide additional information about some of the claims in their application and to provide clarification on particular points. As the secondary applicants are relying on the claims of the main applicant, this request was addressed specifically to the main applicant [name] (the applicant).
The s56 invitation advised the applicant that his statement of claims lacked substantiating details such as dates and locations, in regards to his claims, and that no further details to support his claims had been provided. This letter also advised the applicant that, to assist me in deciding whether to accept that his claims were genuine, I invited him to provide more information about what happened to him and his family in India, including dates and locations of events. I asked the applicant specifically to provide exact details of when, where and how [Mr A] threatened and harassed him and his family. Furthermore, I put to the applicant that according to his statements, the threats and harassment from [Mr A] had been occurring for approximately three years before he and his family left for Australia, and it would seem that if [Mr A] had a genuine intention to harm them, he had ample opportunity to do so in that time period. I asked the applicant to provide reasons as to why he believes [Mr A] would harm him and his family now, if they return to India.
The letter also advised the applicant that the supporting documents emailed by his agent were not individually identified, nor were there any statements provided explaining how each document supports his claims. In accordance with s5AAA, I requested that he resubmit the documentary evidence in a logical order, with titles and an explanation as to what the document is, and how it supports his claims.
… … …
[This] invitation asked the applicant to provide specific details and relevant supporting documents relating to these claims. This letter also advised the applicant that, if he could not provide relevant copies of documents or details of his claims as requested, he should provide a detailed explanation of why he could not provide these relevant documents, and of the efforts he made to obtain these documents.
This letter informed the applicant that if he did not respond to the invitation within the prescribed timeframe, the Department could decide the application with the information it had at that time without asking him again. The letter also advised the applicant that, if he could not respond to the invitation on time, he should contact the Department through email or their ImmiAccount, attaching a letter explaining the reason, and requesting more time to provide the information.
As at the date of this assessment, the applicant has not provided additional information in relation to his claims, including the additional information specified in the s56 invitation. Nor is there any evidence that he attempted to contact the Department to provide further information about his claims or request additional time to respond to the s56 invitation.
Evidence before the Tribunal
The applicants subsequently lodged an application for review of the delegate’ s decision to refuse the grant of their protection visas. The review application was lodged with the Tribunal on 28 January 2021. The applicants attached a copy of the delegate’s decision with the review application.
On 1 February 2021, the Tribunal sent a letter by email to the applicants acknowledging receipt of their application for review. In that letter the applicants were invited to provide further material or written arguments for the Tribunal to consider, and that the applicants should provide it “as soon as possible”. No further material or written arguments was provided by the applicants to the Tribunal to consider.
On 4 December 2024, the Tribunal wrote to the applicants advising that their case was being prepared for allocation to a Tribunal Member. They were requested to complete a ‘Pre-hearing information’ form (through a link) and to answer the questions asked in the Pre-hearing form. One of the questions the applicants were asked to provide comments to was: “In your application for a protection visa you would have provided reasons or made claims as to why you need Australia to grant you protection. Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country? Any other evidence?” The applicants did not provide any comments or information in the pre-hearing form, nor did they provide any comments or information or evidence to the question above.
On 17 March 2025, the applicants were sent a rescheduled Hearing notice (the applicants had sought a postponement of the initial hearing which was considered and granted by the Tribunal) to attend a hearing on 28 April 2025 at the Brisbane Registry about their application for review of the delegate’s decision to refuse the grant of a protection visa. In that Hearing notice, the applicants were asked to provide any evidence to support their case. It also referred them to the decision of the Department which had set out its reasons and that they should have regard to this and any change of circumstances.
On 24 April 2025, the Tribunal received a submission by the applicant’s authorised representative as follows:
This submission is in support of [the applicant] and his family in their application for protection under the Refugee Convention and Australia’s complementary protection obligations. It is submitted that the Departments’ decision to refuse the visa does not adequately consider the seriousness of the applicant’ fears of persecution and the threats faced by him and his family in India, particularly in the context of widespread corruption and influence exercised by individuals such as [Mr A], the applicant’s former business partner.
The applicant has consistently claimed that he is at real risk of serious harm, including death threats, harassment and unlawful detention due to his former business partner’s political and police connections. The applicant’s failure to fully responded to the request of further information from the department, does not negate the risks he has outlined throughout his application, nor does it diminish the credibility of those fears, especially when considered within the broader the socio-political context of India. The applicant provided the requested information to the best of his ability.
Credibility of Business Dispute and Threats
The Department acknowledged that [the applicant] and [Mr A] were business
partners in [Business 1]. It also accepted that the First Information Report (FIR) regarding the suicide of [Colleague A], and the implication of [Mr A] in acts of blackmail and
coercion.
While the Department dismissed this evidence as insufficient to established that the applicant himself had been threatened, it did not adequately consider the likelihood that [Mr A’s] conduct towards [Colleague A] could also extend to the applicant who similarly opposed [Mr A’s] actions.
The consistent claim that his former business partner used influence, prevented the applicant from accessing the business premises, leverage police contacts to have him wrongfully detained and assaulted in custody, is highly plausible in the context of small-town business disputes in India, where personal power often overrides legal protections.
Corruption and Lack of State Protection
It is well-documented fact that local police and political interference in business or personal
disputes is common in various parts of India, particularly in states like Haryana, the applicant’s claim that police acted under [Mr A’s] influence to detain and assaulted him, and that his family had to spend money to secure his release, aligns with known patterns of abuse of authority in such environments.
The failure of police to properly investigate [Colleague A’s] suicide, despite a clear allegation of
blackmail in FIR, further supports the claim that [Mr A] is protected by his political connections and beyond the reach of legal accountability.
Failure to Provide Additional Details – Context and Explanation
The Department placed significant weight on the applicant’s failure to respond to the s56
invitation. However, it did not appear to consider possible reasons for this, including
• Limited access to legal documentation or understanding of the legal requirements.
• Psychological trauma from years of harassment, threats, and detention:
• Potential fear that further disclosure may put relative in India at greater risk.
It is submitted that the lack of detailed responses should not be considered fatal to the claim, especially where other documents (FIR, business documents, tax records support the broader narrative. Furthermore, the applicant maintains he responded to the s56 request to the best of his ability and provided adequate information based on his understanding and the resources available to him at the time.
Risk of Persecution and Lack of Viable Relocation
The applicant has provided a reasonable information that [Mr A] has the means and
political connections to locate and harm him anywhere in India, including major cities like
Delhi or Mumbai. Therefore, internal relocation neither safe nor a viable option for the
applicant and his family.
In the event of return, the applicant faces a real risk of being targeted again through legal
harassment, detention, or even fatal violence, similar to what occurred with [Colleague A].
Request to the Tribunal
Given the above considerations, the Tribunal is respectfully requested to.
1. Set aside the Department’s decision to refuse the protection visa;
2. Accept the applicant’s well- founded fear of persecution due to imputed political
opinion or business rivalry;
3. Accept that there is a real risk of significant harm if retuned to India; and
4. Grant the applicant and his family protection under Australia’s refugee or complementary protection framework.
The Tribunal hearing – 28 April 2025
At the hearing, the applicant confirmed that his wife and children were present at the hearing.
The applicant confirmed that his wife and children were claiming protection based solely on the applicant’s claims of protection and that this had not changed since he first lodged his protection visa application. He confirmed that they were not giving evidence at the hearing in support of his claims, nor would they be giving evidence on their own behalf.
The applicant recalled protection visa application lodged at the Department on the 19 August 2019.
When asked if he put the application together himself or whether he received assistance, he stated that his lawyer asked him for a chronology of events. The applicant then gave his lawyer everything in the Hindi language for his application and his lawyer wrote these claims in his application. The lawyer then lodged the application on his behalf.
When asked if his claims made in his application to the Department were true and correct he stated they were.
When asked whether these were the claims he wished to raise at the hearing, he stated that they were.
The Tribunal then raised with him that, in his protection visa application, he referred to a “protection claims statement” which was in addition to the claims that he had made in his application. It indicated that there did not appear on the Department file at the time any further statement of claims made by him but only a submission made by his lawyer to the Department a little over two months after he lodged his protection visa application. The applicant confirmed that his lawyer’s submissions was what he was referring to in his application. The applicant’s representative also confirmed this to be the case.

The applicant stated that he last lived at [City 1], in Haryana, India. He stated that [City 1] had a large population. He had lived at this address since 2004. He was born in [City 1].
He has been married since 2009. He and his wife had been living at this address in [City 1] since 2009.
His mother and [a sibling] still live in [City 1]. He has a [sister] living in Australia. His cousins, uncles and aunts live outside of [City 1] and live within about 100 kilometres from [City 1].
When asked where his in-laws live, he stated that they live in Punjab. He has visited them from time to time.
When asked whether he was [an occupation 1] by profession he stated that he did not have [an occupation 1’s] degree but did [related work] in India. He used to do [related work] for some small companies in [City 1].
He had his own company in 2012. The name of that company was “[name]”. It was a franchise he bought. He would sell [product 2]. He was working by himself at this company. It was an individual company. He never had any partners at this company. He worked in this company until 2016 when he closed it.
When asked why he closed this company in 2016, he stated because there were some matters that occurred with the company relating to [product 2] he sold and his company ran at a loss, and he closed the company. While he could afford the financial losses here, the reason why he closed the company was because he was given an opportunity to be a partner in [Business 1] in [City 1].
When asked who gave him the opportunity to be a partner in [Business 1], he stated a person called [Colleague A]. He told the applicant that if he was not making money in the [product 2] business, he should come to [Business 1] because there was a lot of money in that business. Therefore, he began working at [Business 1]. He stated that because [Business 1] had a contract from the Haryana government for one year, the applicant was able to start in March 2016. The other partners working at [Business 1] were [Mr A], [Colleague A] and [Mr B] (who was a silent partner).
The applicant was then asked to explain why he feared returning to India. The applicant stated that a man by the name of [Mr A] was harassing him. He stated that from April 2016 to July 2016 everything was fine. After this time, he started planning to remove the partners from the company. He used to harass [Colleague A] and the applicant. [Mr A] would tell shop keepers not to deal with the applicant and the other partners. On [a day in] September 2016, he sent the applicant to the police to “talk to them”. The police then kept the applicant there for [number] nights in custody. The applicant spoke with his family and friends who spent a lot of money to release him.
On 5 September 2016 he was released from jail. After this, [Mr A] stopped the applicant from going into his office and shops. However, the applicant had his other office available (where he previously sold [product 2]). He started to work from there. [Mr A] came there with local men. Because the applicant had the authority to sign, [Mr A] put a gun to the applicant’s throat and made the applicant sign the whole cheque book. He did the same thing with [Colleague A] as well. As a result of the severe harassment by [Mr A], [Colleague A] committed suicide on [a day in] September 2016. In [Colleague A’s] suicide note, which was referred to in the First Incident Report (FIR), he stated that [Mr A] had harassed him to the point of forcing his hand to suicide.
After [Colleague A’s] suicide, the applicant became afraid. [Mr A] would appear at any time with his ruffians either at his home or at his office to force the applicant to do things. There would be five to seven ruffians accompanying him at any one time. The applicant agreed to certain demands from [Mr A] but pleaded with him to return the money that the applicant had invested in company.
[Mr A] told the applicant that when the accounts were done for 31 March 2017, he would then return the money. The company was at one time making a profit of 2.5 Crores. But on 31 March 2017, when he prepared the balance sheet, there was a loss of three or more Crores. [Mr A] kept coming to threaten the applicant. When the next year rolled over [Mr A] transferred 50 lakhs to his new firm. [Mr A] had a lot of cash as well.
[Mr A] told the applicant that there was a loss of three Crores. He said to the applicant to give him one Crores more. The applicant told [Mr A] that the company was making a profit while the applicant was there. However, the applicant did not understand how the company had gone into debt – a total loss of six Crores. [Mr A] told the applicant that he had to pay the money demanded by him. He told the applicant that if he did not pay up that he would either die or he could commit suicide. This harassment continued on a regular basis (every two weeks and monthly) over a long period of time.
[Mr A] had gone to his new company at that stage, but the applicant was still being harassed. [Business 1] received a tax return of [amount] Lakhs. However, because the applicant was still a partner by name at that company, [Mr A] needed him to sign the cheque as partner. He kept coming to the applicant to sign the cheque so that [Mr A] could receive the [amount] Lakhs. However, the applicant did not sign it. [Mr A] started to harass the applicant to sign it and eventually managed to withdraw the refund cheque of [amount] lakh through fraud and without the applicant’s signature.
The applicant was asked why this has become a problem for him. He stated [Mr A] continued to harass the applicant for more money. The applicant told [Mr A] that [Business 1] had been profitable, but that [Mr A] was fraudulent in his activities resulting in its loss. The harassment got worse after this because [Mr A] thought he would go to higher authorities. The applicant did go to the police, but they did nothing because of [Mr A’s] political connections. They did not help the applicant.
After going to the police, he went after the applicant, even going after the applicant’s wife once or twice at her [workplace] where she was [an occupation 2], telling her to either get the applicant to pay him or he will kill him. He started going to the applicant’s wife’s [workplace] after 19 February 2019.
He decided that he should take his family to Australia as he had his sister here and he thought this would be a “slight change”. He was granted a visa in May 2019. His family came to Australia [in] June 2019. The applicant came to Australia [later in] June 2019.
When asked whether [Mr A] lived all his life in [City 1], he stated that [Mr A] lived in a village near [City 1].
When asked what happened to [Mr B], he stated that [Mr B] was from [Mr A’s] village. He was not sure what plan they made together.
When asked whether [Business 1] was still operational, he stated that the company only received an annual contract from Haryana government. That contract was for one year. [Mr A] renewed the contract with his new firm.
When asked whether [Mr A’s] work and residence had been around [City 1], the applicant stated that [Mr A’s] office is in [City 1] and his work is in [City 1] but his home is in his village which was about 15 to 20 kilometres away.
When asked whether [Mr A] knew that the applicant was in Australia, the applicant stated that many of his contacts tried to find out where he was. Some of them would call him on messenger or on another App, asking him where he was. The applicant lied to them, telling some he was in [Country 1]. Life had become very scary for him as threats came to him and his family.
When asked whether [Mr A] had a new contract, he stated that he keeps taking new contracts each year. The applicant finds this out through his own contacts.
When put to the applicant that if [Mr A] now had new contracts, he would have no interest in the applicant, he stated that [Mr A] is now working independently. When he did not have the money, he involved the applicant and others. However, after taking money by fraud, he is now working independently.
When asked whether [Mr A] now operated on his own because of money he obtained by fraud the applicant stated this was the case. The applicant stated that [Business 1] finished in 2017.
The applicant stated that [Mr A] keeps renewing his contracts each year.
The Tribunal put to the applicant that, on his evidence, given that [Mr A] now has his own company, is financially independent, and that he is renewing contracts each year, that it might appear from this that he has no interest in the applicant at present time. The applicant stated that if [Mr A] was not interested in the applicant, why would his associates be contacting him six months earlier and sending him a message on messenger asking where he was and when he will be returning to India. If the applicant agreed to return to India, [Mr A] might not harass him and might leave him alone. But what will he do if he does harass the applicant and his family again. [Mr A’s] political connections have become stronger now. He asked what his life would by then. He would be thinking, where will [Mr A] put the gun to my throat again and ask him for money because greed has no limitations.
The Tribunal raised concerns that no information was ever given by the applicant at all about having a gun put his throat by [Mr A] nor has he ever raised any information about receiving messages from [Mr A’s] contacts on messenger about when he was coming back to India. The Tribunal indicated that none of this information has ever been provided by him, even after being given the opportunity in the process to provide that information.
The applicant stated that he has mentioned in his application that he has been harassed. He indicated that he may not have used the word “gun point” in the application, but he was being harassed. In relation to the message from messenger 6 months ago, he took this as a light verbal message and did not send confirmation to the Tribunal. They do not know where he is and what he was doing so he did not need to respond to that message.
The Tribunal asked the applicant what harm he feared would happen to him if he returned to India. The applicant stated that he does not have any funds. If [Mr A] pressures the applicant to give him money, he will not be able to give it to him. He can do anything to him. If he does harm him in any way, what will happen to his family. [Mr A] has political links and links with the police.
When asked what political links [Mr A] had, the applicant stated that there are some MLA’s and MP’s that he knows. He also knows the village chief as well.
When put to him that [Mr A’s] political links would only be in the area that he lives in, the applicant stated [Mr A] knows State MP’s and he knows MP’s who are out of the State as well. When asked how the applicant knows this, he stated when the applicant was in partnership with [Mr A], he would tell the applicant that he knew MLA’s and MP’s. When the police complaint (First Information Report - FIR) was lodged against him, he was out of jail in four days. He stated that legally he was in jail, but he was not actually in jail. When asked who made the FIR against him, he stated that it was [Colleague A’s] wife who made it after [Colleague A’s] suicide because of all the fraud that happened in the business. The police then came and arrested [Mr A] as a result of that FIR. On the first occasion, [Mr A] ran away and hid somewhere. However, on the second occasion, his political connections told him to go to the police and then they would what the outcome would be. He went to the police the second time and the police arrested him. However, a short time after being arrested, [Mr A] was sitting in the applicant’s office harassing him.
The Tribunal raised possible concerns that this was new information that had just been raised at the Tribunal and had not been raised at any time leading up to the hearing. The Tribunal indicated that it might have concerns here because it is important information that one might be expected to provide. The applicant stated that his application provides the FIR, that [Mr A] was going to jail and then came out of jail. He stated that when writing something as opposed to verbally narrating what happened, there are certain details that come out when you are not always writing something.
The Tribunal asked why the police could not protect him. He stated that without any reason the police kept him in jail for [number + 1] days. He stated they cannot help him. He stated he was in jail for [number + 1] days. The Tribunal indicated that there was information provided previously that he was in jail for [number] days. The applicant stated that he went into jail on [the day in] September 2016 and came out [days later in] September 2016. It was on [a family] birthday.
The Tribunal put to him that from the evidence provided the crux of his claims was that he feared harm from [Mr A] and his “thugs” if he returned to India. The applicant stated this was true. The Tribunal then put to him that his claim was that the police will not protect him as they have not done so in the past. The applicant stated that at that time [Mr A] did not have close political contacts, but in the last five years, [Mr A] has made relationships stronger with all of them.
The Tribunal indicated that it might have concerns that he has raised as new evidence that [Mr A] now has closer connections with MLA’s and MP’s. The Tribunal indicated that it might have concerns that he has never been specific about [Mr A’s] connections with MLA’s or MP’s. The applicant stated that in his protection visa application, he said that [Mr A] had political relations. However, when he is orally telling this to the Tribunal, he is giving more specific details about MLA’s and MP’s. They all come under political relations which he mentioned this in his application.
The Tribunal then adjourned the hearing to give the applicant time to speak to his authorised representative.
At the recommencement of the hearing, the Tribunal put certain matters to the applicant for comment.
The Tribunal indicated that it wanted to draw the applicant’s attention to the claim he made in his protection visa application. He stated that on [a day in] August 2016, [Mr A] started to harass the applicant with local goons and stop him from coming to the office of [Business 1] office. The applicant confirmed this to be true.
The Tribunal indicated that his authorised representative made a submission that on [that day in] August 2016, [Mr A] sent local thugs to harass the applicant. The applicant again confirmed this to be true.
The Tribunal indicated that it might have concerns with this evidence because, in his Protection visa application, he departed for [Country 2] on [that day in] August 2016 on a tourist visa and returned [later in] August 2016. The Tribunal indicated that he claimed in his protection visa application that [Mr A] sent thugs around to his place on [that day in] August 2016 and this was confirmed in a submission by his authorised representative. The concern might be that all these events occurred on the same day. The applicant stated that these thugs came the night prior to him leaving for [Country 2]. He already had acquired a tourist visa for [Country 2]. He was not sure whether it was [that day or the previous day in] August when he put it in writing. He stated they came to him the night before he left for [Country 2]. It was a company tour and there were [a large number of] people on that tour.
The Tribunal indicated that it might have concerns that [Mr A] had sent local thugs to harass him at [Business 1] office on [that day in] August 2016 on the same day he was leaving for [Country 2]. The Tribunal indicated that he was now saying it was the night before or the day before he departed for [Country 2]. The applicant stated that [Mr A] had been harassing [Colleague A] and the applicant for some time. [Mr A] told him that he should not come into the office or go to the shops. He stated that the partners responded because they needed to go to the office and needed to go to the shops. He stated that if he left for [Country 2] on [that day in] August 2016 then his “goons” came to harass him on [the previous day in] August 2016.
The Tribunal indicated that it might have concerns that there has been omissions in his protection visa application. In his application, he made claims for protection. His authorised representative made further claims in submissions made on his behalf. The claims about his partner committing suicide because he was harassed by [Mr A] was not actually put into his original written claims when he raised other claims in his application. There was nothing said about his suicide then. The issue of his suicide came a little more than two months later when his authorised representative gave submissions on the applicant’s behalf. The applicant stated this was because at that time he had no proof of this. After that time, he spoke to his contacts and friends. He got copies of the FIR and that is why it was submitted then.
The Tribunal indicated that it might have concerns that the original FIR has not been provided with the translation of the FIR. The applicant stated that he was not sure why it was not there. He stated that he can provide it if needed.
The Tribunal asked him if he acquired that document through [Colleague A’s] wife. He stated that he obtained a copy of the FIR from the police station. The Tribunal asked how he did this while in Australia. He stated that he has some friends in [the location] and he has a few of his contacts there. He stated that it is not hard to get the FIR. He stated that it is a government document, so it is easy to obtain. The Tribunal indicated it might have concerns about this given that he was able to obtain the FIR but the information had nothing to do with him. The Tribunal made it clear that the FIR was related to [Colleague A] and his wife but not to the applicant and it might have concerns about how he acquired this document. The applicant stated that the FIR is a government record and anyone can take a copy of it. He stated that in the FIR there is mention of [Business 1] and the applicant is a partner of [Business 1].
The Tribunal indicated that the applicant provided a copy of the official translation of the document. The Tribunal indicated that it might have concerns about the document itself. The Tribunal indicated that there are parts of the document that it might have concerns with. For example, one of the concerns it might have about the document is that, in the translation, in the statement from [Colleague A’s] wife, [named], she first states “In the house my husband [Colleague A’s first name]…”. She later states that “I called my husband [Colleague A’s family name with Mr]…” She then later states that “I saw that my husband [Colleague A’s first name with Mr]…”. It might appear from this that [Colleague A’s wife] does not know the name of her husband. There have been three different attempts on his name. The Tribunal indicated that it might have concerns that this document might have been contrived and not genuine. It indicated that this was only one example. The applicant stated that it is definitely a genuine document. He stated that at one place she has referred to him by different names but it could be an error in the police copy as well.
The Tribunal then invited the applicant to comment on the following country information. It referred the applicant to the Department of Foreign Affairs and Trade (DFAT) Country Information Report (29 September 2023). It put to the applicant the following country information:
5.40 In-country sources told DFAT identity documents in India are unreliable because ‘breeder documents’ (which include birth, marriage and death certificates used to support applications for identity, residence and travel documents) and other basic government identity documents can be obtained fraudulently. …
5.41 Document fraud is a common criminal activity. It is not difficult to obtain fraudulent documents…Organised networks of agents are known to provide complete packages of fake documents…The process allegedly involved tampering with original Indian passports, and forging documents such as bank statements and seals, income tax returns, identity proofs, letter heads and logos, as well as rubber stamps of government officials…

The Tribunal indicated that, given this country information and given the concerns about the statement in the FIR, it might have concerns that this document might not be genuine, and therefore if this was the case, it might not give this document any weight at all as documentary evidence. The applicant stated that he had nothing to do with what other people are doing. He believes the document he has provided is genuine. He stated that whatever he has given is true, and he has taken an oath to the Tribunal that whatever he said will be the truth and he will not say any lies.
The Tribunal indicated that country information talks about the FIR in India. It read the following country information to the applicant:
5.6: A key consideration when dealing with Indian police is whether a ‘First Information Report’ (FIR) is made. These are the first reports made by police before they initiate a criminal investigation. Critics of the police claim that police will often refuse to register a FIR; in practice that police action depends on individual police officers and can be arbitrary. The consequences of an FIR not being registered are that the crime is not investigated and no police remedy will be available. As it is the initial action of a police investigation, subsequent police investigation is not possible without an FIR.
The Tribunal indicated that if it did not place any weight in the FIR provided, then it might mean that there was no FIR made in the first place and therefore no police action was taken against [Mr A]. The applicant stated that he did not think that it was possible that someone could commit suicide at home. It does not seem possible that a wife would not lodge an FIR if there was a suicide. When [Colleague A] committed suicide, he wrote a suicide note. The applicant stated how was it possible on this basis that [Colleague A’s] wife would not lodge an FIR.
The Tribunal indicated that it had to assess his income tax returns and financial statements against the country information that indicated that such documents could be tampered with or forged. The Tribunal indicated it would have to weigh this up with all other evidence and information before it. The applicant stated that he could not tell the Tribunal what other people were doing. He could only talk about himself. He could only give his own genuine documents. He stated that whatever documents he has given are genuine. The Tribunal indicated that it had to weigh all this up.
The Tribunal indicated that the applicant provided the Tribunal with the delegate’s decision. The delegate stated in their decision on 1 December 2020 that the applicant was sent a s 56 notice asking the applicant to provide additional information about his claims and inviting him to answer specific questions. It appears that this was not responded to by the applicant. The applicant stated that the email was sent to his authorised representative. He was not sure why that letter was not addressed. He stated that when he received the refusal, this is when he got to know about it.
The Tribunal indicated that in the Country information: DFAT report for India - 29 September 2023 on internal relocation, it states:
There are no legal barriers to internal relocation and India has a long history of internal migration. In practice, relocation is mostly intra-state rather than interstate. This probably reflects the way in which languages and cultures tend to be divided in India along state-lines; people in the same state will speak the same language as the internal migrant. However, in the northern (not north-eastern) states generally all people speak Hindi, giving greater scope for internal migration. …
The Tribunal indicated that it might appear on the evidence and on country information above, that there is not a real chance that he will be targeted by [Mr A] or his thugs if the applicant relocated elsewhere in India. The applicant stated that, if he was to go back and relocate somewhere, [Mr A] can find him anywhere. His life over there would be close to death.
The Tribunal indicated he could safely live with his in-laws in Punjab. The applicant stated that it was not just about living in Punjab or any other state. When [Mr A] did not have money, he was harassing the applicant. Now that the applicant and his wife have been living in Australia, he will think he has money and harass them even more.
The Tribunal indicated that it might have concerns about credibility of his claims given the possible omissions and inconsistencies of his claims and evidence. The Tribunal indicated that it would go away and consider those omissions and inconsistencies in light of all the material before it in order to make findings on credibility that might arise from those omissions or inconsistencies. The applicant stated that whatever he has told the Tribunal or submitted is genuine. He requested the he be allowed to live in this country because going back will be like death.
The Tribunal indicated that there might not be a real chance that the applicant and his family will suffer serious harm for reason of his race, religion, nationality, membership of a particular social group, or political opinion. The applicant stated that he just does not want to be harmed if he returned to India.
The Tribunal indicated that there might not be a real risk he will suffer significant harm if he returns to India.
The Tribunal asked whether there was anything else he wished to raise with the Tribunal in support of his claims. The applicant stated that someone committed suicide because of the harassment that he endured. He was [age range] years old. The applicant was able to endure the harassment. Things keep getting worse. He wanted to request the Tribunal to consider allowing him to stay.
The authorised representative then provided oral submissions as follows. He gathered from his statements that even if his claim does not come under the refugee criteria, it falls within complimentary protection considering that he had a partnership with [Mr A] and that [Colleague A] committed suicide. He then sought extra time to provide post-hearing submissions which the Tribunal granted.
Post-hearing submissions
On 12 May 2025, the applicants provided the following post-hearing submissions (through their authorised representative):
This submission is made on behalf of the applicant, [name], in response to specific concerns raised by the Tribunal during the recent hearing.
The Tribunal sought clarification regarding the precise date on which [the applicant] was subjected to harassment by [Mr A], as well as his location at that time. The applicant acknowledges that this information may not have been clearly articulated during the hearing and wishes to clarify that any such omission was unintentional. The applicant respectfully submits that this may have been due to the distressing nature of the events being recounted, which affected his ability to recall and express certain details accurately.
With respect to the delay of approximately two months in providing certain submissions, the applicant sincerely apologises and offers an explanation. The delay resulted from a genuine misunderstanding and his inability to engage with the process earlier. As soon as he was able to do so, the applicant submitted all relevant documentation that was then available to him.
In relation to the written statement from [Colleague A’s wife], the applicant regrets that such a document cannot be provided. [She] has expressed privacy concerns and a strong reluctance to become formally involved in this matter, which the applicant respects..
The applicant acknowledges receipt of the s56 notice. However, due to recent staffing changes within the legal firm representing him, it appears that this correspondence may have been inadvertently overlooked. The applicant apologises for any inconvenience this may have caused and assures the Tribunal that this oversight was not intentional.
In response to the Tribunal’s query as to why the applicant cannot reside with his in-laws, [the applicant] respectfully submits that he remains at significant risk of harm and does not consider himself safe anywhere within India. [Mr A] continues to pose a serious and ongoing threat to his safety. Furthermore, as a consequence of [Mr A’s] fraudulent activities, the applicant’s bank accounts have been frozen, leaving him without access to financial resources or familial
support within India.
In light of the above circumstances, and considering the applicant’s continued fear for his safety and lack of adequate protection or support in his home country, he respectfully requests that the Tribunal take these matters into account and grant him protection.
In support of the above submissions, the applicant provides the below documents/video as evidence, along with these
submissions:
- Video Link on Facebook: [a non-video link was provided].
- Bank Statement from [Bank 1] demonstrating transactions regarding the above-mentioned activities and the bank account frozen and not used since 2017
- Copy of the FIR (First Information Report) with Indian Police
- News article in [Newspaper 1] (Indian Newspaper) regarding the suicide committed by [Colleague A]: [Source with link deleted.]
The Tribunal notes that when clicking on the Facebook link (above), the Facebook page has the image of a person with English script beside it which says: “[Headline indicating suicide of Colleague A]”. The rest of the script is in non-English language. The comments below the non-English script are in English indicating that the person in the image had died. No explanation of the Facebook page has been provided by the applicants or their authorised representative.
The Tribunal notes that the Bank Statement provided is addressed to “[the applicant]”, and at an address which does not identify as “[Business 1]” at all, but instead states an address which was previously identified in the applicant’s protection visa application as his residential address. The Bank Statement makes it clear that it is a Statement of Account from 05 February 2016 to 31 March 2017. No explanation of the Bank Statement has been provided by the applicants or their authorised representative. The bank statement has been highlighted in certain parts of Cheque transfers made from the applicant’s account to [Business 1]. There appears to be a number of deposits and withdrawals by the applicant from 18 February 2016 to 3 March 2017 to various accounts not identified as [Business 1]. The Bank Statement stops at 3 March 2017 and no further bank statements have been provided. The account appears to be in credit as at 3 March 2017 in the amount of “4037.02”.
The Tribunal notes that the copy of the FIR provided post-hearing only has a few parts of it in English. The “First Information Contents” is written in non-English script. At one point in the middle of the “First Information Contents” the words “[Business 1]” is typed in English. There is no official NAATI translation or any official translation accompanying this FIR.
The Tribunal notes in the post-hearing submissions that, after clicking on the link provided in the news article, the Tribunal is brought to a page called “[Newspaper 1]”. It is titled “[Headline indicating the suicide of a trader]”. It was updated as at “06:02 AM [a day in September], 2016 IST”. The article reports:
[An age]-year-old [product 1] trader reportedly committed suicide [method indicated] at his house in [location] here today. The deceased has been identified as [Colleague A]. The police had recovered a suicide note, in which [the deceased] had blamed his four partners in the [product 1] trade responsible for his suicide.
“[The deceased] had blamed [four names including Mr A], responsible for his suicide,” said [source named].
He said a case [was] registered against the four for causing a] suicide.
The [source] said during the [investigation], it came to light that the partners had a [disagreement] involving Rs [amount] lakh. “We are inquiring the facts about the [suicide] and efforts are [proceeding] to nab them,” he said.
CONSIDERATION OF CLAIMS AND EVIDENCE
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
Criteria for 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.
REASONS AND FINDINGS
The issue in this case is whether the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
s 36(2)(aa) of the Act. It is the responsibility of the applicants to specify all particulars of their claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants provided a copy of the biodata page of their Indian passports as part of their protection visa applications. The delegate accepted that the applicants are citizens of India and there is no information before the Tribunal to the contrary. The Tribunal finds that the applicants are citizens of India, and that India is their receiving country for the purposes of assessing their claims for protection.
The Tribunal has considered the applicant’s oral evidence that his wife and children’s claims are solely based on his claims and that they would not be giving evidence on their behalf. The Tribunal established this at the start of the Tribunal hearing and the applicant confirmed this to be the case. This has remained the same since the lodgement of the protection visa application that the family members in the application rely solely on the claims made by the applicant. Given this evidence, the Tribunal finds that the applicant’s claims refer to the applicant and to his immediate family members as listed in his protection visa application and who were included in the review application. The Tribunal will, therefore, only be referring to the applicant’s claims and evidence in the subsequent part of this decision and then will make a finding on the applicant and the applicant’s immediate family members as they relate to the applicants claims, given that their claims are based solely on the applicant’s claims.
Assessment of claims
The Tribunal has considered the applicant’s protection visa application and supporting documents and submissions, the information provided by the applicant to the Tribunal prior to hearing and the oral evidence of the applicant provided at the hearing. Having considered all the evidence before it, the Tribunal does not find credible the applicant’s claims that [Mr A] and his associates or “local thugs” or contacts have threatened the applicant and his family or [Colleague A] and his family in the past.
The Tribunal notes that the applicant was assisted by a registered migration agent with the lodgement of the protection visa application. This same registered migration agent remained as the authorised representative throughout the entire protection visa application process up to and including at the time of the delegate’s decision, including providing submissions on the applicants’ behalf. The same registered migration agent remained as the authorised representative at the time of lodgement of the review application at the Tribunal and continued assisting the applicants all the way through to the Tribunal hearing and including providing pre-hearing and post-hearing submissions respectively on behalf of the applicants. On this evidence before the Tribunal, the Tribunal finds that the applicants were continually assisted professionally by a registered migration agent from the time of lodgement of the protection visa right up to when the registered migration agent provided post-hearing submissions on the applicants’ behalf to the time of this decision.
The Tribunal has significant concerns about relevant omissions of claims and evidence at the protection visa stage, as well as the applicant providing new evidence and claims at the hearing. The Tribunal also has concerns about significant inconsistencies between the applicant’s written claims and the evidence given at the hearing. Finally, the Tribunal has significant concerns about the reliability of documents presented to the Tribunal based on internal inconsistencies and independent country information.

The Tribunal has considered that the applicant has claimed in his original protection visa application that he worked alongside [Mr A] (he was initially identified as [Mr A] but was later referred to as [a name variant of Mr A] by the applicant and his authorised representative) and two other partners in [Business 1] (the “firm” as the applicant calls it). [Product 1] stock was purchased by [Mr A] and, following this, the firm delivered the [product 1] stocks to [number] [product 1] shops around [District 1], Haryana. The applicant and [Colleague A] looked after the distribution of the [product 1] stock to the [product 1] shops on behalf of the firm. The applicant worked at the firm as [an occupation 1]. The applicant discovered that [Mr A] was involved in a “money scam and fraud in…the firm during his [product 1] purchase and when [they] gave him all daily cash collection”. [Mr A] was upset with the applicant and started to threaten the applicant, offering him money to keep quiet and not to tell anyone.

100. He continues by stating that [Colleague A] started to talk to [Mr A] about these matters. From there, things got bad for both the applicant and [Colleague A]. [Mr A] had connections with the police and political connections. On [the day in] August 2016, he started to harass them (he does not identify exactly who has been harassed here) with “local goons” and stopped them (again he does not identify who he has stopped) from coming into the firm. He stopped almost all the suppliers and [product 1] shops dealing with them. The applicant felt like he was nothing to the firm. Later on, he threatened his wife and made “so much trouble in her workplace as well”. He was very scared when “they” “misbehaved” in front of the applicant’s wife and children and “into the market”. [Mr A] always “pushed [the applicant] to not come to the office. [Mr A] was the cause for the applicant going to jail “for [number] nights”. He was “badly beaten by the police goons and threatened…”. His family spent a lot of money to get him out of jail. (No information was provided about when this occurred and where and in which police station.)
101. Two and a half months after lodging his protection visa application, the applicant’s registered migration agent added further claims and evidence on the applicant’s behalf in a submission provided to the delegate. There was no statement made by the applicant at the time. The new claims and evidence were as follows:
·[Mr A] was one of four partners in the firm. The other partners included the applicant, [Colleague A] and [Mr B].
·[Mr A] was an influential person, having connections with politicians and police in the area and beyond (no further evidence was provided here to support this claim). [Mr A] exercised influence over the other partners in the firm’s operations. He engaged in fraudulent activities. [Mr A] profited from the firm using coercion and fraudulent means. [Mr A] threatened the applicant when the applicant found out about the fraudulent means. The applicant informed the other partners. [Colleague A] and the applicant were harassed and threatened.
·On [the day in] August 2016, [Mr A] sent “local goons” to stop [Colleague A] and the applicant from entering the firm’s premises. Local [product 1] stores were told not to deal with the applicant and [Colleague A]. Threats were extended to their families, and they used “local thugs” to inflict verbal abuse.
·[Mr A] used his influence with the police by having the applicant taken into custody “without proper procedures for [number] days”. The applicant was “beaten badly” and “threatened with life” by the police. His family paid for his release. (No information was provided about when this occurred and where and in which police station.)
·On [the day in] September 2016, because of bullying and “threats made to him and his family by [Mr A]”, [Colleague A] committed suicide. The police were involved but [Mr A] did not get “dragged into the matter”. [Mr A] threatened the applicant and his family further.
·On [a day in] 2017, the firm stopped operating as it only had a one-year contract with the Haryana government. The applicant was forcibly stopped from attending the firm’s premises. The firm had made significant profits. [Mr A] made out a claim that the firm was in debt and transferred the money to his own business. [Mr A] filed a wrong income tax report and showed that the firm had made a loss and that he was to claim wrong tax returns. The applicant informed [Mr A] that the company had made significant profit and could not support the wrongful tax return. The threats increased to the applicant and the applicant’s family.
·In January 2019, [Mr A] was sent a cheque by the Indian Income Tax Department. [Mr A] could not cash the cheque without the signature of the applicant who was a partner of the firm (at least on paper). The applicant and his family were harassed by [Mr A] “in various ways”.
·The applicant and his family left for Australia in August 2019.
·Relocation is not an option given [Mr A’s] political contacts and contacts within the police force. He and his family will not be safe if they relocate.

102. The applicant has provided a number of documents in support of his claims. The Tribunal has considered these documents in light of the applicant’s claims. However, the Tribunal has significant concerns about the inconsistencies between the applicant’s documents provided and his claims and evidence. These concerns are further amplified by the Country Information report on India by the Department of Foreign Affair and Trade (DFAT) on 29 September 2023” (which was put to the applicant) relating to the prevalence of fraud relating to documents:
5.39 In 2012, the Government of India introduced a QR code-based municipal service validation code facility to provide electronic verification of birth, marriage and death certificates lodged by clients at registrar offices. This facility is not yet available India-wide. DFAT understands issuing authorities do not routinely conduct verification of documents submitted by clients before issuing birth, death or marriage certificates with the QR facility.
5.40 In-country sources told DFAT identity documents in India are unreliable because ‘breeder documents’ (which include birth, marriage and death certificates used to support applications for identity, residence and travel documents ) and other basic government identity documents can be obtained fraudulently. Easily-faked bank statements or utility bills can also be used to demonstrate residency. Verifying documents is time consuming and largely unreliable given the ease of fraudulently obtaining genuine documents of all types.
5.41 Document fraud is a common criminal activity. It is not difficult to obtain fraudulent documents. For example, a passport might be based on only one other form of identification. Organised networks of agents are known to provide complete packages of fake documents. For example, The Times of India reported in February 2019 the arrest of five persons in Hyderabad for fabricating documents and official stamps, and helping people obtain visas for Western countries. The accused allegedly took applicants’ original passports, charging approx. AUD 750-850 as a first instalment, and a further AUD7,500-8,500 if the visa was successful. The process allegedly involved tampering with original Indian passports, and forging documents such as bank statements and seals, income tax returns, identity proofs, letter heads and logos, as well as rubber stamps of government officials, immigration stamps used at Indian airports, and immigration service stamps of Australia, the UK, the US, and the UAE. Sources told DFAT organised networks such as those arrested in Hyderabad in 2019 provided complete packages of fake documents and charged significant fees for the provision of fraudulent documents.[2]
[2] Department of Foreign Affair and Trade (DFAT) Country Information Report on India – 29 September 2023, Paragraphs 5.39 to 5.41

103. The applicant’s comments to this country information were that he had no control of what other people were doing and that he could only provide his own “genuine” documents and that he had taken an oath to the Tribunal to tell the truth. The Tribunal has considered these comments. However, they do not allay the Tribunal’s concerns about the reliability of the documents and their own inconsistencies with the applicant’s written and oral evidence and with independent country information considered above.
104. The applicant was put on notice that it might have concerns about the credibility of his claims given the omissions of evidence from the beginning of his protection visa application, the new claims and evidence provided during the application process and at the hearing itself and internal inconsistencies. The Tribunal has considered the applicant’s comments that whatever he has told the Tribunal or submitted to the Tribunal is genuine. However, they do not explain away the credibility concerns of the claims and evidence due to the omissions of evidence, new claims and evidence provided and internal inconsistencies. The Tribunal will address these credibility concerns below.
105. When lodging his protection visa application, the applicant provided several partnership agreements, a bank statement and various financial documents with no detail of why they were relevant to his claims. These documents were attached to an email sent by his authorised representative which stated: “Please find attached documents provided by [the applicant] in relation to the application for protection filed by him and members of his family.” However, there was no further explanation in this “submission” as to how these documents were relevant to the applicant’s claims. The delegate, in the delegate’s decision submitted to the Tribunal with the review application, that the applicant was asked, in accordance with s 5AAA, to resubmit the documentary evidence in a logical order, with titles and an explanation as to what the documents were, and how they supported the applicant’s claims. The applicant did not respond in any way to the request.
106. In the applicant’s protection visa application, he claims that he worked alongside [Mr A] and “two other partners” at [Business 1]. In the submission by the applicant’s authorised representative dated 28 October 2019, the applicant claims that he was a partner at [Business 1] with [Mr A] as well as “[Colleague A] and [Mr B]”. However, the applicant provided a Partnership Deed entered into [in] March 2016 at [City 1] (Haryana [Reference number]) which indicated that there were seven partners, and not four, who entered into a partnership agreement carrying out business trading under the name of “[Business 1]”. While the Deed is a copy of the original, it is signed by all seven partners and witnessed accordingly with various stamps. In the Deed, [one paragraph] states: “That the bank account in the name of the partnership shall be opened and operated jointly or severally by [Mr A name variant] (1^st Party) and by [variant of Colleague A’s name] (4^th Party) of this Deed under their mutual understanding …” The Deed was entered into at the time the applicant stated in evidence he first entered into agreement with [Mr A]. The Tribunal accepts, on the face of this document provided by the applicant, that the applicant entered into partnership with [Mr A] and five others at [Business 1] in March 2016 and that [Mr A] and [Colleague A] operated the bank accounts both jointly or severally. The Tribunal accepts that the Deed unequivocally states that there are only two bank account owners in the partnership of [Business 1], namely [Mr A] and [Colleague A], and that they can operate this bank account both “jointly or severally”. On the evidence before the Tribunal, there are no other partners except [Mr A] and [Colleague A] who have been given the authority to operate [Business 1] bank account.
107. The Tribunal does not accept as reliable the second Partnership Deed provided by the applicant which states that it was entered into [in] October 2016. When considering this document, the Tribunal notes that there are no stamps at all on the Deed, it is simply typed up, and there are four names written as “partners”, not seven as in the March 2016 Deed. There are four signatures at the end of the Deed but no signatures in the “witness column” which is blank. Given these concerns and given DFAT’s country information about the prevalence of fraudulent documents, the Tribunal gives the October 2016 Deed no weight at all.
108. The Tribunal finds it concerning that the March 2016 Deed provided by the applicant indicates that there are seven partners of [Business 1] and not four partners as indicated by the applicant. The applicant has claimed throughout the application process that there are four partners in this business venture. This is inconsistent with the Partnership Deed entered into [in] March 2016 which states that there are seven partners. These credibility concerns about the makeup of partners at [Business 1] is enhanced further by the online news article titled “[the headline of the suicide of a trader]” provided to the Tribunal in the applicant’s post-hearing submission which points to at least five partners at [Business 1] (when including the death of [Colleague A]) and not including the applicant who was not mentioned in the article. The October 2016 Partnership Deed which the applicant provided the Tribunal (and which the Tribunal has given no weight to) indicates four named partners who are involved at [Business 1] but later the applicant provides a copy of a Form No. 3CB” from “[a legal firm]” which refers to three of the partners referred to previously and one new partner. The Tribunal finds on these financial documents and income tax returns that there are major discrepancies between who the partners actually are at [Business 1]. Given these internal inconsistencies between the applicant’s evidence and documents provided by the applicant, and given DFAT’s Country Report that document fraud is a common criminal activity and that it is not difficult to obtain fraudulent documents including “bank statements and seals, income tax returns, identity proofs, letter heads and logos, as well as rubber stamps of government officials”[3], the Tribunal finds the copies provided in support of the applicant’s claims, namely an Indian Income Tax Return Acknowledgement, Form No. 3CB, Balance sheets, Statement of Income, Partner Capital Account, Trading Account, and all financial documents provided as not reliable. Given this finding, the Tribunal gives all these documents no weight at all in support of the applicant’s claims.
[3] Department of Foreign Affair and Trade (DFAT) Country Information Report on India – 29 September 2023, Paragraph 5.41
109. The Tribunal finds that the “[Bank 1]” Statement of Account further enhances the Tribunal findings that the applicant is not credible in his claims. Firstly, it is the only bank account provided. It is a bank account made out to the applicant at his residential address and for the period between 18 February 2016 to 3 March 2017, where the remaining balance is “4037.02” in credit. There is no indication that the applicant is a partner of [Business 1] or that money that he was receiving in his work was for [Business 1]. The applicant has not identified at all why deposits were coming in or why withdrawals were coming out. On three different occasions the applicant transfers moneys to “[Business 1]”. However, there has been no explanation as to why these amounts were transferred to [Business 1], only that the applicant has transferred these amounts, legitimately, across to [Business 1] on 29 March 2016, 5 April 2016 and 26 May 2016. The Tribunal does not find that the bank statement does anything more than indicate that the applicant has transferred money across to [Business 1] to which he was a partner at that time. The Tribunal does not accept post-hearing submissions by the authorised representative that the bank statement demonstrates “transactions regarding the above-mentioned activities and the bank account frozen and not used since 2017”. There is no evidence at all that this bank statement in anyway indicates that the applicant was forced to make payments to [Mr A], nor does it indicate in any way that the bank account has been frozen and not used since 2017 as there has been no later statement that adjoins this one provided to the Tribunal. The last entry on the statement of account from 5 February 2016 to 31 March 2017 is that the account was in credit of “4037.02”. Apart from accepting that it is the applicant’s private bank account and that he has made three transfers to [Business 1] for which he was a partner, the Tribunal does not place any weight on this bank statement as it relates to the applicant’s claims.
110. The applicant has claimed that, not long after the applicant was released from jail [later in] September 2016, [Mr A] came and threatened the applicant with a gun with his local thugs and forced the applicant to sign the whole cheque book because the applicant had the authority to sign. The Tribunal does not accept these claims at all given that the applicant never once claimed that he was forced to sign cheques at the protection visa application stage, when asked by the delegate to provide more information under s 56 of the Act, when the applicant was asked to provide further information about his claims when the Tribunal sent him a pre-hearing form with specific questions about his claims or in any pre-hearing submissions when invited to do so in the hearing invitation letter. Moreover, the Tribunal finds that [Mr A] had the authority to sign the cheques given that he had the authority in the March 2016 Partnership Deed to sign either jointly or severally with [Colleague A]. Further, the three transfers made from the applicant’s bank account (taken from the bank statement provided) occurred from March to May 2016 whereas the applicant has claimed that [Mr A] forced him to sign cheques after [his release in] September 2016. The Tribunal finds these inconsistencies and omissions significant and going to the credibility of the applicant’s claims that he was forced by [Mr A] and his local thugs to sign cheques after the applicant was released from jail.
111. The Tribunal has significant credibility concerns about the applicant’s claims that he was detained and beaten over a [number + 1]-day period. The Tribunal notes that the applicant initially claimed (with no detail about the dates of arrest, what police station he was detained at and the purpose of his going to the police station in the first place) that he was detained for [number + 1] days as a result of [Mr A’s] connections to the police. His authorised representative then made submissions that the applicant was detained for “[number] days” which is inconsistent with the applicant’s evidence of being detained for [number + 1] days. Both the applicant and his authorised representative provided no detail about the dates of arrest, what police station he was detained at and the purpose of his going to the police station in the first place. This information was not provided to the delegate when invited to do so in the s 56 letter sent to the applicant. At no time during the review process has the applicant provided any further information or detail about his detention. The Tribunal finds these omissions of detail about his detention with the police significant and going to the credibility of his claims, given that the applicant has claimed his detention is a sure sign of the influence [Mr A] has over the police and politicians. The applicant has failed to provide any details or evidence about his detention, and what occurred to him at any stage throughout the application process except the limited detail he provided at the hearing itself when invited to do so, even after being assisted by his authorised representative.

112. The Tribunal has considered the authorised representative’s post-hearing submissions that the applicant acknowledges that this information may not have been clearly articulated during the hearing and wished to clarify that any omission was unintentional. It has considered the submissions that this “may have been due” to the distressing nature of the events being recounted, which affected his ability to recall and express certain details accurately. Having considered this submission, the Tribunal does not accept that inarticulation during the hearing or omissions made were unintentional, given that the Tribunal has indicated already in this decision that the applicant had several different opportunities from lodgement of the protection visa application to the hearing itself to provide details and evidence and information in support of his claims, when invited to do so and with the assistance of his authorised representative. Moreover, the applicant did not provide at any stage any medical reports or certificates that indicate in any way that the applicant is suffering any anxiety or stress or emotional issues relating to his claims. On the evidence before it, the Tribunal does not accept these submissions as a reason for the applicant not providing clear details about his claims and for omitting claims or evidence or providing new claims or evidence. Accordingly, the Tribunal finds these inconstancies, omissions, lack of detail to specific claims and new claims intentional and going to the credibility of his claims.
113. The Tribunal has considered the translated First Information Report (FIR) that was provided as part of the protection visa application. However, the Tribunal has significant concerns about the reliability of this report. Firstly, only the translated English version was provided to the delegate without the FIR attached. The applicant provided an untranslated FIR as part of his post hearing submissions when it was raised with him that there was no actual FIR attached to the translation. However, the Tribunal does not give any weight to the untranslated version given to the Tribunal (post-hearing) given that there was no translated version that accompanied it. The Tribunal cannot know that the new FIR is actually the same one as the translated version. Notwithstanding this, the Tribunal has significant concerns about the reliability of the Translated FIR.
114. In the first instance, the translated version is supposed to record the complaint of the aggrieved wife of [Colleague A] as made in first person. Yet, as noted earlier in the decision, [Colleague A’s wife] states in one part of the FIR: “In the house my husband [Colleague A’s first name]…[italics added]”. She then states in another part of the FIR: “Then I called [Colleague A’s family name with Mr]…[italics added]”. She later states in the FIR: “I saw that my husband [Colleague A’s first name with Mr]… [italics added]”. On three different occasion it appears that [Colleague A’s] wife does not know how to identify her own husband.
115. In the second instance, [Colleague A’s wife] states:
When I arrived at around 2pm [emphasis added] after taking leave from my [workplace], I saw a boy named [Boy A] standing outside my house, who asked me straightaway where is [Colleague A], as he is not picking up my call. I said I have just come back from [workplace].”
Then that boy said that you call. Then I called [Colleague A] using my phone. Phone was ringing no one picked up so I went inside the house. At that time my maid about my husband whether [Colleague A] has come home.
To this my maid [Maid A] replied that I don’t know whether he has come or not. However, at around 12, 12:30 [emphasis added] there was a noise of coughing coming. I then asked if there was any person who came to meet [Colleague A]. To this the maid replied that she had seen no one.
After this when I went upstairs and opened the door, I saw that my husband [Colleague A] was hanging from a ceiling fan tied with a cloth…

116. In this complaint, which is translated to have been made later that same evening, [Colleague A’s wife] is stating that she arrived home around 2pm only to then state that at “12 or 12:30” she heard a coughing noise which she found out to be [Colleague A] hanging himself. The time of her coming home and the time of hearing [Colleague A] coughing cannot be reconciled in this complaint.
117. In the third instance, the applicant makes a new claim at the hearing that [Colleague A] and his family were threatened by [Mr A]. However, in the complaint in the translated FIR, [Colleague A’s wife] states “…two days back my husband told me about this fight among them”. She does not mention at all that there has been ongoing threats and harassment to her and her family by [Mr A] which is claimed by the applicant.
118. In the fourth instance, the Tribunal places weight on the DFAT’s Country Report that document fraud is a common criminal activity and that it is not difficult to obtain fraudulent documents.
119. It was put to the applicant that the Tribunal might have significant concerns about the reliability of the FIR. It has considered the applicant’s response that the FIR is a genuine document and that the names of [Colleague A] might be due to the police. However, given that this is a significant document for police when they are investigating a person after a complaint is made against them, it is in their interest to have it recorded carefully. Given that the Tribunal has raised at least four different concerns about this document, these concerns together indicate to the Tribunal that the translated document is unreliable. The Tribunal, therefore, gives it no weight as it relates to the applicant’s claims.
120. The Tribunal has considered the online news article provided by the applicant post-hearing which indicates that, as of September 2016, the police were investigating a suicide of [Colleague A] and that it was to investigate four partners named (the applicant not being one of them). It accepts this article and the Facebook page that a [Colleague A’s name] died at that time. The Tribunal accepts that an FIR may have been made by [Colleague A’s wife] against several partners but the Tribunal does not accept that the FIR made by [Colleague A’s wife] is the one presented by the applicant as evidence given the Tribunal’s significant concerns with its reliability above.
121. The Tribunal has considered the applicant’s new claims made only at the hearing that he had a gun put to his throat by [Mr A] and was threatened on a number of occasions by [Mr A] after he was released from jail [in] September 2016. The applicant did not raise this event in his protection visa application, nor when the delegate requested further information and details in its s 56 letter to the applicant, nor when he lodged his review application, nor when he was invited by the Tribunal to provide further information in the pre-hearing form sent to him, nor after the hearing invitation went out to him inviting further information and material, all while being represented by his authorised representative. The tribunal finds this omission of such a serious claim to be significant and going to the credibility of his claims. The applicant has stated himself that he departed for Australia because of the seriousness of the threats being made to him and his family yet still failed to raise this particular event at any time leading up to the hearing. When this was put to him, the applicant stated that he had said in his protection visa application that he had been “harassed”. While the Tribunal accepts that the applicant has stated that he was being threatened and harassed, he still provided no details of how this significant claimed event occurred, even after being given the opportunity to provide further information about it on many different occasions throughout the application and review process and with the assistance of his authorised representative. The applicant has raised this at the hearing as a significant event that happened to him when he was in India yet failed to make this claim when given the opportunity on several different occasions.   Having considered this evidence before it, the Tribunal finds that this new claim made at the hearing is not credible and that [Mr A] did not put a gun to the applicant’s throat after he was released [later in] September 2025 (which the Tribunal has already found not to be credible).
122. For the same reasons given above, the Tribunal does not accept that [Mr A] put a gun to [Colleague A’s] throat as well, a new claim made at the hearing and not raised at any time during the application process or the review process.
123. The Tribunal has considered the new claims raised at the hearing that [Mr A’s] associates sent him messages via messenger (while the applicant was in Australia) and made enquiries as to where the applicant was. The applicant gave evidence at the hearing that this was a significant fear for not returning to India knowing that [Mr A’s] associates were looking for him. However, the Tribunal has considered that no evidence at all has been provided to support this. The Tribunal has considered that the applicant has not provided this new information to the Tribunal, even when given the opportunity to do so in the pre-hearing form provided to answer and in the hearing invitation which sought further evidence. The Tribunal has considered that the applicant has remained silent about this all the way through the review process, even after being assisted by his authorised representative.   The applicant indicated in response that he believed that it was a light verbal message and did not send confirmation of this to the Tribunal. The Tribunal does not accept this response given that he initially raised it as a significant issue for his not returning to India before the Tribunal’s concerns were raised with him. Given the evidence before it, the Tribunal finds the applicant’s new claims raised at the hearing that [Mr A’s] associates were trying to locate him while he was in Australia as not credible.
124. Given the Tribunal’s significant concerns above about the credibility of [Mr A] and his associates ever harassing the applicant or threatening him, the Tribunal does not accept at all that [Mr A] or his associates threatened the applicant or his family at any time while working at [Business 1]. This credibility finding is further enhanced by the applicant’s claims that [Mr A] used “local thugs” to threaten the applicant and his family on [the day in] August 2016 (as raised in the submission made on the applicant’s behalf by his authorised representative and raised by the applicant in his protection visa application). When it was put to the applicant at the hearing that the applicant actually departed India on [that day in] August 2019 on a tourist visa to [Country 2], he stated that it was either [the previous day] or [that day in] August that they came to harass him. He stated that it was the night before they left for [Country 2]. The Tribunal finds this answer contrived, given that the applicant never offered at any stage of his application that this might have occurred a day or so earlier. The Tribunal finds that the applicant’s response that it was the night before he left for [Country 2] as being contrived to answer the discrepancy of dates after the concern was put to him at the hearing. The applicant was assisted by his authorised representative throughout this process.
125. Moreover, the evidence indicates that the applicant returned from his holiday in [Country 2] after two weeks, only to then remain in India for a further two years and ten months before deciding to come to Australia. The applicant has shown that he has the means to travel given that he travelled with his family for two weeks to [Country 2] for a holiday in August 2016.   The Tribunal finds on this evidence, if the applicant’s fear and concerns were that great prior to leaving for [Country 2], that he would have made arrangements before the two year and ten months to depart for Australia, given that he has claimed that the threats and harassment were serious in 2016, and he had the means to travel at any time. The Tribunal finds the applicant’s departure for a holiday to [Country 2] and return to India and his residing for a further two years and 10 months in India as not indicating that he had a subjective fear of suffering harm as he claimed and that this also goes to the credibility of his claims of suffering harm from [Mr A] and his local thugs or fearing that he will suffer harm from [Mr A] or his associates or thugs.
126. Having considered all the evidence before it, the Tribunal accepts that the applicant was a partner at a firm called [Business 1] with six other partners the applicant listed as partner number seven), as identified in the Partnership Deed entered into [in] March 2016. It accepts from this same Partnership Deed that [Mr A] and [Colleague A] were also two partners at [Business 1]. It accepts from this same Partnership Deed that [Business 1] bank account was opened in the names of [Colleague A] and [Mr A] only, either jointly or severally under the Deed. It accepts from the only Bank Statement provided by the applicant that he transferred money into [Business 1] from his own personal account on three different occasions between 29 March 2016 and 26 May 2016 and that, on the face of that bank statement, the transfers point to ordinary transfers made alongside other various transfers in that bank statement and do not indicate at all that any coercion was the reason for such transfers. The Tribunal finds that the applicant had no official control of the bank accounts as indicated by the Partnership Deed of [March] 2016, and as indicated from the Bank Statement which was made out to the applicant at his private residential address (which matches his residential address provided in his protection visa application) and not to [Business 1] in any official capacity. There is no evidence provided that identifies the applicant as having control or any authority over payments within [Business 1]. The Tribunal accepts from the online news article provided that [Colleague A] committed suicide and that the police were investigating four other partners from [Business 1] relating to the suicide in September 2016. The Tribunal finds from this same online news article that the applicant was not part of any investigations by the police and that the police had no interest in him at all. The Tribunal accepts that [Mr A] was of interest to the police along with three other former partners at [Business 1] in September 2016.
127. However, given the assessment of the available evidence before it, the Tribunal does not accept the claims as credible that [Mr A] has threatened and harassed the applicant relating to [Business 1] or for any reason in the past over money in which the applicant had authority to give to him (given that the evidence does not show that the applicant had authority over the bank accounts). It does not accept on the evidence that [Mr A] has threatened the applicant in the past or that he has an interest in the applicant, given that the evidence provided indicates that any investigation of [Mr A] was due to the suicide of [Colleague A], the other main partner of [Business 1]. The Tribunal does not accept as credible the claims that [Mr A] is connected to politicians and local police and that he has (or will) target the applicant or his family if he was to return. On the evidence before it, it does not accept as credible the claims that [Mr A] sent local goons or local thugs or associates to the applicant’s premises to threaten him, that he put a gun to the applicant’s head, that he made the applicant sign an entire cheque book, that he attempted to force the applicant to sign a tax return over to him, that he threatened his wife at [her workplace] and family at home. It does not accept as credible the claims that he spent time in jail or that he was beaten in jail. It does not accept as credible the claims that he received messages while in Australia from [Mr A's] associates attempting to find out where he was. It does not accept that [Mr A] threatened [Colleague A] and that this was the reason for his suicide given that the news article clearly states that [Colleague A] blamed four partners for his suicide in his suicide note and not just [Mr A]. It does not accept that [Mr A] will now perceive the applicant and his family having money because they have been living in Australia and therefore target them if they return.
128. The applicant has given evidence at the hearing (and the Tribunal accepts this evidence) that [Business 1] has finished up, that [Mr A] has his own company and his own contracts (meaning that he is financially independent) which he has set up on his own, and that he is able to renew his contracts each year. Given this information, and given that the Tribunal does not accept that [Mr A] or his associates are targeting the applicant or his family nor does it accept that [Mr A] is seeking money from the applicant in the past or at this time, the Tribunal finds that there is no real chance that the applicant will suffer serious harm from [Mr A] and his associates for any reason were the applicant and his family to return in the reasonably foreseeable future.
129. Having considered that the second, third and fourth applicants are relying solely on the claims made by the applicant and that their application rest entirely on the outcome of the applicant’s claims, the Tribunal finds on the evidence that there is no real chance that the applicant, second applicant, third applicant and fourth applicant will be targeted by [Mr A] and/or his associates, were they to return in the reasonably foreseeable future, given the credibility findings above and given the applicant’s evidence at the hearing that [Mr A] now has his own company, his own contracts which he has set up on his own and that [Mr A] is renewing contracts with his company each year.
130. Given that the Tribunal does not accept that the applicants have suffered serious harm or any harm (including threats) from [Mr A] or anyone associated with him, and given that it does not accept that they have escaped because of threats or harm that they have experienced from [Mr A] or persons associated with him, and given that it does not accept that they will experience systematic and discriminatory conduct because of these threats or past claimed harms were they to return in the reasonably foreseeable future, it finds that there is no real chance that the applicants will suffer serious harm by way of systematic and discriminatory conduct in the reasonably foreseeable future for reasons of their race religion, nationality, membership of a particular social group or political opinion, and therefore do not meet s 5(J)(1) of the Act.
Complimentary protection
131. The Tribunal has also considered the applicants claims under the complimentary protection criteria, and in particular has assessed the applicants’ claims against the real risk consideration.
132. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee definition.[4] For the reasons given above, the Tribunal found that there is no real chance that the applicants will suffer serious harm from [Mr A] and/or his associates or from the police for one or more of the reasons mentioned in s 5J(1)(a) of the Act.
133. In assessing the facts against complimentary protection, the applicant has given evidence at the hearing (and the Tribunal accepts this evidence) that [Business 1] has finished up, that [Mr A] has his own company and his own contracts (meaning that he is financially independent) which he has set up on his own, and that he is able to renew his contracts each year. Given this information which the Tribunal accepts, and given the credibility findings as a whole, and given that the Tribunal does not accept that [Mr A] or his associates are targeting the applicant or his family nor does it accept that [Mr A] is seeking money from the applicant in the past or at this time, nor does it accept that the police or authorities has targeted or is targeting the applicant, the Tribunal finds that there is no real risk that the applicant will suffer significant harm from [Mr A] and his associates for any reason were the applicant and his family to return to India in the reasonably foreseeable future.

134. Having considered that the second, third and fourth applicants are relying solely on the claims made by the applicant and that their application rest entirely on the outcome of the applicant’s claims, the Tribunal finds on the evidence that there is no real risk that the applicant, second applicant, third applicant and fourth applicant will suffer significant harm from [Mr A] or his associates or from local authorities if they were to return to India in the reasonably foreseeable future.
135. Having regard to the Tribunal’s findings above, the Tribunal is not satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that the applicants will suffer significant harm. Therefore, s36(2)(aa) of the Act is not met.
[4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013)per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION

137. The Tribunal affirms the decisions not to grant the applicants protection visas.
Date of hearing: 28 April 2025
Representative for the Applicant: Mr Iqbal Chaudhry (MARN: 1174774)

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.
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36     Protection visas – criteria provided for by this Act
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(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.
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