2101361 (Refugee)
[2025] ARTA 1581
•9 June 2025
2101361 (REFUGEE) [2025] ARTA 1581 (9 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2101361
Tribunal:Clyde Cosentino
Date:9 June 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 09 June 2025 at 10:15am
CATCHWORDS
REFUGEE – protection visa – India – fear of physical harm from business clients – fear of killing – verbal threats to family – state 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 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIAC v SZQRB [2013] FCAFC 33Any 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 18 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of India, applied for the visa on 19 November 2019. The delegate refused to grant the visa on the basis that the applicant does 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 does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 10 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.
BACKGROUND
Evidence before the Department
According to his protection visa application (lodged on 19 November 2019), the applicant was born in [Village 1], Uttar Pradesh, India. He last resided in [Village 1], Bareilly, Uttar Pradesh from [specified year] to August 2019. He was [age] years old at the time of application.
He completed his high school education and a University Degree ([specified]) in Bareilly, Uttar Pradesh.
He claims to be an Indian citizenship by birth and therefore an Indian national.
He arrived in Australia [in] August 2019 on a Visitor visa.
He claims to have worked as an education agent (his own small business) called [Business 1] at Bareilly, Uttar Pradesh.
He speaks, reads and writes Hindi, Punjab and English.
In his application, he makes the following claims:
·In response to why he left India he claims:
oI left India as a visitor to Australia for the business purpose to promote my business, [Business 1], with an intention to return back to India after a short temporary visit.
·In response to whether he experienced any harm he claims he did not. He claims:
oI did not face any threats when I was in Bareilly. The threats emerged only after I came to Australia.
·In response to whether he moved, or tried to move, to another part of India he claims no. He claims:
oI did not face any threats when I was in Bareilly, India. The threats emerged only after I came to Australia.
·In response to what he thinks will happen to him if he returns to India, he claims:
oIf I go back to India or my home city of Bareilly, I will face severe and significant harm and injury.
·In response to whether he thinks he will be harmed or mistreated if he returns to India, he claims that he will. He claims:
oIn the recent times, my business is facing a significant number of student visa refusals from Australia and [Country 1]. As a business owner, I try my best to do the proper job and assist students. But I do not control the outcome of the visa applications. I provided some education related services to some powerful people in my city. In my absence, they have been going to my home and giving threats to my parents. They said that they will kill me if I return to India.
·In response to whether he thinks the authorities of India can and will protect him if he goes back, he claims no. He claims:
oI fear that they have connections throughout India, and I fear that they will cause harm to me regardless of where I go in India.
·In response to whether he thinks he would be able to relocate within India to an area where he would not be harmed, he claims no. He claims:
oI do not think that relocation will help me much.
As written in the delegate’s decision made on 18 January 2021, the applicant was sent a request by the delegate under s 56 of the Act on 8 December 2020 inviting him to provide more information about his claims. That notice stated that his statement of claims lacked substantiating details in regard to his claims and that no further details or documentary evidence in support of his claims had been provided by him. The delegate stated that if he did not provide the information by a specified time that a decision would be made with the information it had on file. The delegate’s decision stated that he did not respond to the letter or provide any information to the questions asked about his claims.
The delegate subsequently made a decision to refuse the grant of a protection visa to the applicant on 18 January 2021.
Evidence before the Tribunal
On 7 February 2021, the applicant lodged an application for review of the decision made by the delegate to refuse him a protection visa. The delegate’s decision record was attached to that application for review. No further information or supporting evidence was provided with the application for review.
On 8 February 2021, the Tribunal sent to the applicant a letter via email listed as the authorised email address, acknowledging receipt of the application for review lodged by the applicant on 7 February 2021. That letter also indicated that, if the applicant wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. As at the date of hearing, no material or written arguments were provided to the Tribunal for it to consider.
On 4 December 2024, the Tribunal sent the applicant an email indicating that his file was now being prepared to be given to a Tribunal Member. It requested that he complete a pre-hearing information form by clicking on a link in that email. The pre-hearing form requested a number of questions to be completed including the following: “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 applicant returned the pre-hearing form to the Tribunal completing basic particulars about his personal circumstances. However, the question above was left blank.
On 12 March 2025, the Tribunal provided the applicant via email a Hearing invitation to attend a hearing about the review of the decision to refuse the grant of a protection visa. In that Hearing invitation, the applicant was invited to return the ‘Response to hearing notice’ form and attach additional information if he had any requests or any new information which he wished the Tribunal to consider within seven days from receipt of the Notice. It also referred him to the decision of the department which had set out its reasons and that he should have regard to this and any change of circumstances. As of the date of hearing, apart from the completed Response to hearing form, the applicant did not provide any additional information or new information for the Tribunal to consider.
Tribunal hearing – 10 April 2025
At the hearing, the Tribunal explained briefly to the applicant the meaning of refugee and complimentary protection under Australian law.
The applicant stated that he recalled the claims that he made in his protection visa application lodged 19 November 2019. He stated that he put those claims together himself. He stated that his claims made in the protection visa application were true and correct and that these were the only claims he wished to raise at the hearing.
The applicant confirmed that he could speak, read and write Hindi, Punjab and English.
He stated that he last lived at Bareilly, Uttar Pradesh, India prior to coming to Australia. He stated that this was his home area and that he had lived there all his life.
He stated that he was previously married and had a child in that marriage but has since separated. He does not know where they are now.
He stated that his mother still lives in Bareilly. She lives at the home he was living at before coming to Australia. He has no brothers and sisters. The applicant is an only child. His mother lives on her own. Relatives support her there. He also supports her from Australia. However, she has her own source of income which is generated from the revenue she makes on her land.
He stated that he came to Australia on a tourist visa. He was originally coming here for ten days.
In India, he was running an education business. It was an education business for students. His purpose for coming to Australia on a tourist visa was to come here to visit Colleges and to improve his business. When he came to Australia, his father told them that some people had come to his home and were angry because of student visa refusals.
When asked to explain more about his business in India, he stated that the business was about student visas and coaching. He stated that, when he was in Australia, some of his clients had their visas refused. They went to his home and asked about the applicant. They said that when they find him, they will kill him. They said they were after him because of the visa refusals.
When asked how long his business had been operating for, he stated for about three years. He stated that he started his business by coaching people for their English language test. He eventually expanded his business to help clients to apply for student and tourist visas. This expansion occurred over six to seven months.
When asked if he had a business partner, he stated that he did. He stated that the business partner operated out of another office, in a city more than 100 kilometres away from the applicant’s business. When asked where the applicant’s business operated from, he stated in Bareilly. His business partner had different clients. His business partner was more knowledgeable and helped to put the visa applications together. The applicant worked at the “front desk” so to speak. He saw the clients coming in. When asked how many clients he had, he stated about twenty to twenty-five clients. They were mostly student visa clients and some tourist visa clients. He stated that his business was relatively successful in the first six months but over time the figures went down. When he came to Australia, he had twenty to twenty-five clients waiting to come to Australia and [Country 1].
When asked whether he had any concerns about going back to India when he came to Australia, he stated that he did not. When asked when the concerns began, he stated about three or four days after arriving in Australia. His problems occurred because of the visa refusals to some of his clients. They started looking for him at his home in India after he arrived in Australia.
When queried why these people would search for him only after he arrived in Australia given that they could have searched for him while he was in India, he stated that they did not know where he was at the time. This was his opinion only.
He stated that his father called him and said that some people had come to his home and were looking for the applicant. His father told him that he was out of the country. They said to his father that they would kill the applicant. They threatened his father if he got involved. His father said he would go to the police, but they threatened him and again said to him not to get involved. His father was scared and did not get involved at that point.
When asked if his father told the applicant who had threatened him, the applicant stated that his father did not have any names, nor did he know them. His father could not identify them. The applicant could only conclude that there were four or five clients who had their visas refused so it could have been any one of those. However, the applicant could not provide names or identities of persons who attended at his father’s home that day.
When asked how he found out about who came to his house, he stated that his father called him. His father told him that four or five people came and asked where the applicant was.
When asked how these people knew where he lived, he stated that he did not know how they found out about his address.
When asked again who he thought came to his home, he stated that he did not know. He stated that they did not identify themselves to his father. They just said that they blamed the applicant for their visas being refused.
When asked whether he had any other information about the people who he believed had their visas refused he stated that he did not. He knew they all came from his city. When asked how big his city was, he stated it was very large, like “Melbourne”.
When asked again about the incident that occurred at his father’s home, he stated that his father became scared. He advised the applicant that they will kill him. His father told the applicant to help himself.
When asked what he did when his father told him about the threats, he stated that at first, he became stressed and was thinking about what to do. It took him a long time to decide what to do. He was looking at options. After two and a half months, he applied for a protection visa. He applied for a protection visa before his tourist visa expired.
When asked how many times these men came to his home, he stated that it was on that one occasion only. He stated that his father never saw them again. The applicant did receive calls from unknown numbers and did not answer them. However, when it was put to him that it could be anyone ringing from an unknown number, he stated this was true.
He confirmed that there had been no communication from them to his father or to anyone since the time they came to his home in 2019.
When asked why he thought they stopped coming to his house, he stated that they were watching out for him. He confirmed that there had been one threat but that there had been no other threats again and that his parents did not hear from them again.
He stated that his business partner has no more connections with the applicant and that the applicant has shut his business since the threats. His business partner did not take over the applicant’s business.
When asked whether his business partner had heard anything about the threats, he stated that he did and advised the applicant not to come back. When asked how he heard about the threats, the applicant stated that his business partner comes from the same area. There are students who talk.
When put to him that these people have shown no interest with the applicant since his time in Australia and that they had only came to his home once, he stated that they told his father that they would kill the applicant if they found him. This is the reason why he is scared.
When asked whether there was any other reason why he did not want to return to India, he stated no. He stated that the reasons he has given are the only reasons. He is afraid of being killed.
The applicant confirmed that his mother has been living at the same house where he lived since [August] 2019. She has not had any trouble with anyone coming to the house nor has anyone made any threats since August 2019. Neither his father (since deceased) nor his mother had seen anyone come to his house since that time or make threats to the applicant.
When asked why he thought the police could not help, he stated because the people threatening him were powerful people. They threatened his father to stay away, and they said they would assault or harm him, so he did not go to police.
When asked why he could not seek police protection in India, he stated that they will not be able to protect him at all no matter where he goes.
When asked whether there was anything else he wanted to say in support of his claims, he stated that he has told his story, and it is the truth.
The Tribunal then indicated that it wanted to raise some matters with the applicant for his comments. It indicated that his evidence was that these people were powerful people, but he did not know who these people were who had threatened him. The applicant stated that when he was in India, he saw powerful people, who had come to seek the applicant’s assistance, with security guards who had firearms. The applicant believes that the person who threatened him was one of these people, but he is not sure.
The Tribunal indicated that it might have concerns that he now mentioned that in India he saw powerful people with their security guards who had guns when they came to see him about visas but none of this was mentioned at any time previously in his application or afterwards. The applicant stated that there were people waiting in their vehicles who were security for these powerful people, and they had firearms. He stated that these people are powerful, and they will kill the applicant.
The Tribunal indicated that he had claimed that the people who made threats were powerful people. However, from his evidence, they only ever came to his house once and only threatened him once. His parents never saw them again. They have never threatened him again. It appears that this is inconsistent with his claims that these people want to harm or kill him. The applicant stated that they went to his home just once. They were looking for him. Because of his online posts, they know he is not there anymore. Once they find him, they will kill him.
The Tribunal indicated that these people might not be interested in him at all. His parents have not been harmed and they have never returned to his home again. The applicant stated that they are quiet because they are waiting for him. Once he goes back, they will harm him.
The Tribunal indicated to the applicant that he provided the Tribunal with the delegate’s decision when he applied for review. The delegate stated in that decision that he was sent a request under s 56 of the Act asking him to provide more information about his claims. That notice stated that his statement of claims lacked substantiating details in regard to his claims and that no further details or documentary evidence in support of his claims had been provided by him. The delegate stated that if he did not provide the information by a specified time that a decision would be made with the information it had on file. The delegate’s decision stated that he did not respond to the letter or provide any information to the questions asked about his claims. The applicant stated that he was requested to provide further information, but he did not have any more evidence. He told them clearly that he had no more evidence to provide. He had no security cameras installed.
The Tribunal indicated that on 8 February 2021, he received an acknowledgment letter from the Tribunal that it had received his application for review. That letter asked him to provide material and written arguments for the Tribunal to consider. It appears that he did not provide further information or material in support of his claims. He stated that he had already written his story in detail and had nothing new to submit.
The Tribunal indicated that on 4 December 2024, the Tribunal sent him a pre-hearing information form to complete. In that form, one of the questions to complete stated: 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? It indicated that he did not provide any information or further evidence in support of his claims. The applicant stated that, when he submitted it, he thought that he would describe everything at the hearing. He had no physical evidence and wanted to say everything in person when he was at the hearing.
The Tribunal indicated that on 12 March 2025, he was emailed a Hearing invitation to attend a hearing about his review of the decision to refuse the grant of a protection visa. In that email, he was asked to provide any evidence to support his case. He did not provide anything in response to this request. The applicant stated that he replied to the form, but he did not have any more evidence to give.
The Tribunal indicated that it appeared that he failed to provide further particulars and information in support of his claims from the very beginning when he lodged his protection visa application. It indicated that it might appear that he has been vague and lacking in detail with his claims from the very outset and that this vagueness and lack of detail of his claims, when given the opportunity to provide more detail on several different occasions, might go to the credibility of his claims in part or whole. The applicant stated that, since he made his application, he has said everything about his claims. He has no evidence. He wanted to tell his story before the Tribunal because he had no evidence.
The Tribunal indicated that there had been inconsistencies raised with him at the Tribunal. This might go to credibility of his claims. For example, the applicant stated that the inconsistencies relating to the men who had firearms (which was not mentioned at an earlier stage) might go to credibility of his claims. This was one of the inconsistencies mentioned. The applicant stated that these people are powerful people. He has seen these people holding guns and they are powerful.
When asked whether there was anything else in support of his claims, he stated that he does not think he has left anything out. He has told the whole story.
CONSIDERATION OF CLAIMS AND EVIDENCE
On 7 February 2021, the applicant lodged an application for review with the former Administrative Appeals Tribunal (AAT). On 14 October 2024, the 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.
Receiving country
The applicant provided a copy of the biodata page of his Indian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of India and there is no information before the Tribunal to the contrary. The Tribunal, therefore, finds that the applicant is a citizen of India, and that India is his receiving country for the purposes of assessing his claims for protection.
REASONS AND FINDINGS
The issue in this case is whether the applicant engaged Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. 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.
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
The Tribunal has significant concerns with the credibility of the applicant’s claims. The Tribunal found the applicant to be vague and lacking in any detail when asked to expand upon his only written claims made in his protection visa application. At the hearing, the applicant was unable to provide any specific details about his claimed persecutors’ identities, where they were from and how they came to find out where he lived and why they would have come searching for him after he arrived in Australia. He was only able to provide vague and very limited details of why they wanted to harm him, why they only came to his family home on the one occasion and why they had not made any contact with his parents or with the applicant since that time. The applicant made significant new claims at the hearing which were not made in his initial application or at any stage leading up to the hearing. The applicant was vague and lacking in detail in his claims when he first lodged his application for a protection visa on 19 November 2019. The applicant failed to provide any further details or further information about his claims in the application process and in the review process, even after he was invited to do so in writing by the delegate and by the Tribunal respectively.
The Tribunal has considered all these factors in totality and finds that they significantly undermine the credibility of his claims overall. For the reasons given below, the Tribunal does not accept his claims about his fear of suffering serious harm from persons in India arising out of his business.
The applicant makes the following written claims in his protection visa application 19 November 2019. At the time of his arrival in Australia on a visitor visa, there had been no threats made to him while he lived and worked in Bareilly, Uttar Pradesh, India. He was a business owner back in India providing education services to students including powerful people in his city. He did not control the outcome of the visa applications for students. He came to Australia on a visitor visa for the purpose of promoting his business called [Business 1]. It was his intention to return to India. However, after arriving in Australia, “powerful people” came to his home and made threats to his parents. They told his parents that they would kill the applicant if he returned to India.
The applicant was invited in writing by the delegate to give additional information as it related to his claims under s 56 of the Act on 8 December 2020 but the applicant did not provide any further information as invited. On 8 February 2021, after the applicant lodged his review application, he was invited in the acknowledgment letter from the Tribunal to provide any material and written arguments for the Tribunal to consider. However, no material or written arguments were provided in support of his claims. On 4 December 2024, in the pre-hearing form sent to him by the Tribunal, the applicant was referred to his reasons or claims as to why he needed Australia to grant him protection and was asked whether he wanted to give “any more information” about his claims of protection. He was asked whether there were any other reasons why he was afraid to return to his country and whether he had “[a]ny other evidence” to provide. The applicant did not provide any more information or any other evidence in response to these questions. In his Hearing invitation sent on 12 March 2025, he was asked to provide any evidence in support of his case, but he did not provide any evidence in support of his case leading up to the hearing. The applicant was provided ample opportunity to provide details about his claims but failed to do so at any time during the application or review process.
The applicant only provided further oral evidence in support of his claims at the hearing on 10 April 2025. At the hearing, the applicant claims that, while he was in Australia, his father told him that some people who were his clients had come to his home and were angry about their student visa refusals. He was told by his father that they had threatened to kill the applicant if he returned because of their visa refusals. These threats occurred about three or four days after he had arrived in Australia. In the applicant’s opinion, he did not think they knew where he was at the time he resided in India but that they visited his home after he was in Australia.
His father told these people that the applicant was in Australia. His father did not know who they were or what their names were. His father could not identify them. They did not identify themselves to his father. The just said that they blamed the applicant for their visas being refused. The applicant could only conclude that there were four or five clients who had their visas refused and that it could have been any of them. The applicant was unable to identify the people who came to his father’s home to threaten him. The applicant did not know how these people came to know where he lived. The applicant did not have any other information about these people except that they lived in the same city as the applicant. His father told him to help himself.
He claims that these people came to his father’s home only once. His father never saw them again. They never communicated with his father again. His mother has never had any communication from these people. These people never communicated with the applicant while he was in Australia. The applicant did receive some calls on “unknown numbers’ which he did not answer but agreed that they could have been anyone with a no-caller ID.
At the hearing, he gave new evidence that was not provided previously that, when he was in India, powerful people came to seek assistance from the applicant for student visas and that they came with security guards who had firearms. The applicant believed that the persons who threatened him could have been one of these people. He gave new evidence at the hearing that he believes that they know he is in Australia because of his online posts though no examples of online posts were given in evidence and no claims of this were ever made leading up to the hearing.
The Tribunal has significant concerns about the applicant’s claims and the lack of specific details that he has given about his claims from the outset, given that he had been provided with ample opportunity in writing to do so and given that he was asked at the hearing to provide further details in support of his claims. The applicant’s claims of fearing harm centres solely around communication from his father from India to the applicant in Australia just days after he arrived in Australia [in] August 2019 that several people came to his house and threatened to kill him because they had their visas refused. Yet, these same people, who the applicant claims are “powerful” people, turned up to his house and threatened the applicant just once, never coming to that address again to see if the applicant was there or threatening the applicant ever again. His parents never saw them again. The Tribunal would think that if powerful people were threatening to kill the applicant that they would be attending at the applicant’s home on more than one occasion throughout the course of a five-and-a-half-year period in which the applicant has been in Australia since first being notified of the threats.
The Tribunal finds the claim that certain persons threatened the applicant at his home just days after he arrived in Australia to be contrived and going to the credibility of his claims given that he does not know who his claimed persecutors are apart from them being “powerful people” who sought help with their visas; given that the applicant did not know where they came from except that they were from the applicant’s “own city”; given that the applicant did not know how they came to find out about where he lived; given that his father was unable to identify them at all, and given that they only came to visit the applicant at his parents address to threaten the applicant on one occasion only just days after the applicant arrived in Australia but never visited that address or communicated with his parents again. The applicant’s own oral evidence is that he is guessing that there are “four to five” people who could have something against the applicant because their visas were refused but he gave evidence that he was not certain about this.
The Tribunal finds the applicant’s claims lacking in credibility given his evidence at the hearing that the people who came to his father’s home did not identify themselves to his father; given that his father did not know who they were at all; and given that the applicant only received the information about the threats from his father on one occasion.
The Tribunal finds the applicant’s claim of being threatened by certain persons not to be credible at all given that the threats were made against the applicant at his former home only days after he arrived in Australia; given that his father could not identify these people making the threats; given that this information was only passed onto the applicant in Australia by his father in India just after the applicant’s arrival in Australia; given that these people never contacted his father or parents again; given that the applicant was never directly threatened by these people who remain unknown to the applicant but who the applicant believes “in his opinion” are powerful people who he helped with their visas; given that they have not contacted the applicant since August 2019 (the applicant conceded at the hearing that the “unknown numbers” that he received on his mobile phone could have been anyone trying to contact him with a “no caller ID”); given that the applicant has no further information about these “powerful” people he claims were his clients; and given that he does not have information about where these “powerful people” come from and only that they come from the applicant’s city.
The Tribunal has considered the applicant’s comments to these issues raised by the Tribunal. The applicant commented that, it was his opinion only, that those making threats against him did not know where he lived while he was living in India but found out where he lived after he came to Australia. He commented that he believed they stopped coming to his home because they were watching out for him and waiting for his return. The Tribunal has considered the applicant’s evidence. However, the applicant has only speculated and not offered any concrete evidence that those making threats against him found out where he lived after he came to Australia. The Tribunal finds on the overall evidence before it that the claim that these persons found out about the applicant’s residence only a few days after he arrived in Australia and confronted his father only and not the applicant who was already in Australia contrived and going to the credibility of his claims. The applicant’s evidence that his claimed persecutors stopped coming to his home after visiting him on the one occasion only since the first and only threat was made to him in India in August 2019 and that they never followed up on these threats appears highly implausible to the Tribunal given that he claimed that these were “powerful” people in his city who had made the threats and who were keeping a watchful eye over whether he returns or not. If it was the case on the applicant’s evidence that these were powerful people in his city, the Tribunal does not accept that such people would simply stop making the threats after only one unsuccessful attempt. The applicant has given no evidence of how he has come to know that these people are waiting for him for his return, given that he does not know who these people are nor do his parents know who they are. The Tribunal finds the applicant’s responses significantly lacking in detail about his claimed persecutors and therefore finds his responses not to be credible at all.
The Tribunal has significant concerns about the new evidence provided by the applicant at the hearing, given that they were never raised during the protection visa process or the review stage. The Tribunal finds that this new evidence raised only at the late stage of hearing goes to the credibility of his claims. The applicant gave new evidence at the hearing that he recalled in the past powerful men coming to see him about their student visas and they had with them security guards who were carrying firearms or guns and that this made him afraid. He gave new evidence at the hearing that he made online posts and that these powerful people would have known he was not in India anymore because of these online posts. He gave new evidence at the hearing that they threatened they would harm his father if his father went to the police or got involved. He gave new evidence at the hearing that his business partner knew about these threats, possibly through other students, and told the applicant not to come back to India.
The Tribunal raised with the applicant its concerns about the lateness of this new evidence and that he had ample opportunity throughout the application process and the review process to provide further information and additional information in support of his claims but failed to do so. The applicant’s comments and responses to concerns raised were that he was requested to provide further information but did not have any more evidence to give. He stated that he had no security cameras installed. He stated that he had already written his story in detail and had nothing further to submit. He stated that he thought that when he submitted his review application, he would describe everything at the hearing. He stated that he had no physical evidence and wanted to say everything at the hearing and had no more evidence to give since lodging his protection visa application.
The Tribunal has considered these comments in light of all the evidence before it. The Tribunal finds that the applicant’s comments do not adequately answer why he was prevented or why he would not provide new evidence in support to his original claims which remained vague and lacking in detail. The Tribunal finds it significantly concerning that the applicant had ample opportunity to provide further details to his claims throughout his visa process and during the review process. The Tribunal has identified several times where the delegate and the Tribunal together invited the applicant to provide further information or additional information in support of his claims but that he failed to do so on each occasion. The Tribunal does not find his comments that he had no physical evidence or that he was waiting for the hearing to occur to tell his story as reasons for him not to provide supporting and new evidence when he was invited to do so. The new evidence given by the applicant at the hearing did not require the applicant to have had physical evidence on him. The applicant was prompted throughout the process to provide new and additional information, but he failed to do so. The applicant was not hampered in any way in explaining his claims further or providing additional evidence in support of his claims when he was invited to do so throughout the process, if he believed that his life was in danger if he returned. Given these findings and given the findings of the Tribunal above about his consistent lack of detail of the original claims made, the Tribunal finds this new evidence raised by the applicant as not credible at all.
Given the Tribunal’s findings above and having considered the claims and evidence both individually and cumulatively, the Tribunal does not accept as credible the applicant’s claims that he had “powerful people” as clients who had security guards with guns when visiting the applicant. It does not accept as credible the applicant’s claims that unidentifiable powerful people came to visit the applicant’s home only a few days after he arrived in Australia, that they verbally threatened the applicant by telling his father that they will kill him because their visas had been refused, that this was a message passed onto him by his father, that his father was threatened not to go to the police or get involved, that his business partner knew of these threats, and that these “powerful” people have connections throughout India. Given all the evidence before it, the Tribunal does not accept that the applicant has suffered any threats or has been threatened with harm in any way by powerful people or his former clients or any person.
Given the Tribunal’s findings above, the Tribunal finds that there is not a real chance that the applicant will be harmed by powerful people or former clients or by any person if he were to return to India. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason and is not a refugee as defined in s 5H(1) of the Act.
The Tribunal has therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[2] For the same reasons discussed above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm from powerful people or former clients or by any person.
[2] MIAC v SZQRB [2013] FCAFC 33
The applicant has not claimed to fear harm for any other reason if he returns to India and the Tribunal finds that no other protection claims arise on the accepted facts.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 10 April 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
0