2203419 (Refugee) - [2025] ARTA 1588

2203419 (REFUGEE) [2025] ARTA 1588 (13 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2203419
Tribunal:General Member L Hill
Date:13 June 2025

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

Statement made on 13 June 2025 at 11:53am

CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh – dispute with brother – parents evicted and disowned brother and transferred family home into applicant’s name – brother attacked parents and threatened to kill applicant – brother’s criminal activities and connections with powerful people – period as unlawful non-citizen – consent to decision without hearing – superficial and unconvincing claims and evidence and no documentation – country information – low-level official and societal discrimination against Sikhs – no separatist opinions or activities by applicant – temporary separation from partner not significant harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Administrative Review Tribunal 2024 (Cth), ss 9, 106(3)
Migration Regulations 1994 (Cth), Schedule 2
CASES
AWC21 v MHA [2022] FCA 1568
GLD v MHA [2020] FCAFA 2
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Randhawa v MILGEA (1994) 52 FCR 437
SZRSN v MIAC [2013] FCA 751
2010120 (Refugee) [2025] ARTA 550

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 16 February 2022 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 6 December 2020. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as provided for in ss 36(2)(a) or 36(2)(aa) of the Act.
On 22 May 2025, the Tribunal invited the applicant to a hearing at the Brisbane registry, scheduled for 19 June 2025. Amongst other things, the hearing letter advised the applicant to contact the Tribunal as soon as possible if he was not available to attend or believed that he would experience any difficulties in participating in the hearing as arranged. The applicant was also asked to read and complete the enclosed ‘Response to hearing notice’ and return it to the Tribunal.
On 29 May 2025, the applicant emailed to the Tribunal a completed and signed ‘Response to hearing notice’ form dated 29 May 2025. In this form, in response to the question ‘Will you take part in the hearing scheduled for 19 June 2025’, the applicant ticked the response; ‘No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing’.
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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
Can a decision be made without holding a hearing?
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) sets out the circumstances where the Tribunal may reach a decision without holding a hearing. The Tribunal has also had regard to the consideration of the exercise of the power under s 106(3) of the ART Act in 2010120 (Refugee) [2025] ARTA 550 (13 May 2025).
Did the parties consent to proceeding without a hearing?
To proceed without a hearing, the Tribunal must be satisfied that s 106(3) of the ART Act has been met. Paragraphs 106(3)(a) and (b) of the ART Act sets out that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour of the applicant, or the applicant requests the Tribunal to make its decision without holding the hearing.
In this case, the only parties to the proceeding are the applicant and a non-participating party; and the applicant has ticked the response; ‘No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing’ in the completed and signed ‘Response to hearing notice’ form dated 29 May 2025. The Tribunal finds the applicant’s response to be a clear and unambiguous[1] indication that he does not wish to attend a hearing and wishes the Tribunal to proceed to make a decision on the material before it. The Tribunal finds that the applicant has requested, and consents to, the Tribunal making its decision without holding a hearing. The Tribunal is satisfied that s 106(3)(a) and s 106(3)(b)(ii) have been met.
Can the issues for determination be adequately determined in the absence of the parties?
[1] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025).
Paragraph 106(3)(c) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the parties’ absence. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties.
In 2010120 (Refugee) [2025] ARTA 550 (13 May 2025), when considering the key phrase ‘adequately determined’, the Tribunal indicated that relevant to the appropriateness of the Tribunal exercising the power under s 106(3) of the ART Act was whether the applicant had been provided with reasonable opportunities to present evidence and make submissions in support of their application for review. The Tribunal stated that while this was a matter for the Tribunal to assess, it was important that any such assessment should be considered with reference to the Tribunal’s objectives in s 9 of the ART Act. The Tribunal further stated that:
In protection cases, matters relevant to assessing the opportunities afforded to an applicant to present their case may include any opportunities provided prior to the delegate’s decision being made; the opportunity provided to respond to the matters raised in the delegate’s reasons for refusing the visa when lodging an application for review with the Tribunal; any responses to Tribunal outreach; and any responses to the general invitation in a notice of hearing for any further submissions or evidence in support of the application to be provided to the Tribunal.[2]
[2] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025) at [62].
In this case, the Tribunal notes that the applicant has been provided with the following opportunities to present his case:
·On 6 December 2020, the applicant lodged with the Department of Home Affairs (the Department) an application for a protection visa and provided his claims for protection.
·On 8 December 2020, the department wrote to the applicant, acknowledging receipt of his valid application. He was advised that “all claims, supporting documentation and evidence should have been provided when you lodged your application” but that “additional information may be submitted visa ImmiAccount, email or by mail”.
·On 23 December 2020, the applicant submitted a written statement of claims to the Department for consideration (2020 statement).
·On 15 October 2021, the Department wrote to the applicant and advised him that they needed more information to assess his application. In summary, he was advised that his application lacked key details about what had happened to him in India and why he could not return. To assist in determining that his claims were genuine he was asked to provide detailed information and documentary evidence in response to the questions set out in the letter. He was also asked to provide further information about why he could not relocate or obtain protection from the authorities in India in relation to the harm he feared on return.
·On 11 November 2021, the applicant provided a written response to the Department’s request for further information. This response provided further details of his claims for protection (2021 statement).
·On 16 February 2022, the delegate of the Minister made a decision that they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations as provided for in s 36(2)(a) and s 36 (2)(aa).
·On 10 March 2022, the applicant lodged with the Tribunal his application for review of the delegate’s decision dated 16 February 2022.
·On 11 March 2022, the Tribunal wrote to the applicant acknowledging his application for review. He was advised that the Tribunal had requested the Department to provide all documents and files which they considered relevant to his application. He was also requested to “provide material or written arguments for [the Tribunal] to consider… as soon as possible”.
·On 11 March 2022, the applicant lodged with the Tribunal a written statement in support of his application for review (2022 statement).
·On 6 February 2025, the Tribunal wrote to the applicant and advised him that his application was being prepared to be given to a Tribunal Member. He was asked to the complete a ‘Pre-hearing information’ form and return it to the Tribunal. In this form, there was a section ‘Claims for protection’. This section provided the applicant with an opportunity to provide more information about his claims for protection and any other reasons he was afraid to return.
·On 14 February 2025, the applicant lodged a completed and signed ‘Pre-hearing information’ form. No further information was provided in the section ‘Claims for protection’.
- On 22 May 2025, the Tribunal wrote to the applicant inviting him to attend a hearing at the Brisbane registry. The hearing invitation requested the applicant to complete the ‘Response to hearing notice’ form and asked him to provide all documents he intended to rely on in support of his case by 12 June 2025, if he had not done so already. He was also advised that any documents or written arguments should be in English or if not then accompanied by a translation from a qualified interpreter.
To date, the applicant has not raised or indicated to the Tribunal that he wishes to provide any additional material or new information, documents and/or written arguments for consideration. Nor has the applicant provided any additional material, information, documents and/or written arguments relating to his claims for protection to the Tribunal, even when provided with the opportunity to do so such as in the “Pre-hearing information’ form.
The Tribunal is satisfied that the applicant has had an opportunity to present his case and provide all the information, evidence and submissions that he considers important and relevant in support of his application; and it follows, that the Tribunal is satisfied that the issues for determination in this review can be adequately determined in the absence of the parties. The Tribunal is satisfied that s 106(3) of the ART Act has been met.
CLAIMS FOR PROTECTION
The applicant is a [Age]-year-old male. He arrived in Australia [in] June 2001 on a Higher Education Sector (subclass 573) visa. This visa expired on 15 March 2014. On 11 March 2014, the applicant was granted a Vocational Education and Training Sector (subclass 572) visa. This visa expired on 6 June 2015. On 5 June 2015, the applicant was granted a Bridging Visa A (subclass 010) (BVA). This BVA expired on 29 September 2015. Between 30 September 2015 and 7 December 2020, the applicant remained in Australia without a valid visa. On 6 December 2020, the applicant lodged his application for a protection visa and on 8 December 2020, the applicant was granted a Bridging Visa C (subclass 030) (BVC).
The applicant’s claims for protection, which were before the Department, are set out in the ‘application for a protection visa’, his 2020 statement and 2021 statement. In summary, the applicant claims:
·He is seeking protection and cannot return to India.
·He has stated that there is no future and life left for him in India and he will experience mental and physical harm because of his religion. He identifies his religion as Sikhism.
·He has also stated that he cannot return to India as his brother has threatened to kill him on arrival. He also believes if his brother doesn’t kill him, he will torture him “physically, mentally and psychologically” on return.
·The reason for his brother’s threats is because his brother has been evicted from the family home in India and disowned by his parents because of his disobedience and criminal actions. The family home has been transferred into his name because his parents do not want his brother to have anything to do with the family or the family’s property.
·His brother is jealous of him. His brother has told his parents and other members of their community that he will teach him a lesson if he was to return to India. His brother has also said he will also take all the family property from him.
·He has stated that he has received threatening phone calls in the past and has had to change his phone number. This has caused him a great amount of stress.
·His parents have tried to solve this issue with the village communal (panachayat) but things got worse and his brother attacked his parents. His brother also threatened them and told them to tell him not to return or he would face the same treatment.
·His brother has connections with powerful people in society. These people facilitate his brother’s criminal activities and as a reward his brother has been given the power to hurt people like him.
·He believes if he returns to India, he will have to engage in court cases and hearings. He won’t be able to get a police clearance, which will be important for him to be able to return to Australia and his de-facto partner, ‘[Ms A]’ whom he plans to marry.
·He does not believe he would be able to seek any help from anyone if he was to return because in India the resourceful and powerful people, like politicians, government officials, as well as military personnel can do whatever they want and a vulnerable person like him cannot seek help. He doesn’t believe anyone will help him on return.
·He does not believe that he could relocate to another area of India as his life will be in danger even if he moves.
In support of his claims, the applicant provided an original and translated to English statement written by his father, [Mr B] (father’s statement). In summary, his father states that his son, [Mr C], his daughter-in-law, [Ms D] and his grandson, [Mr E] are not in his control. They do not look after or care for him and do not reside with him. They harass and trouble him and he “disinherits” them from his estate, and moveable and immovable property. He has no affiliation or association with them as of 8 December 2011.
On 7 May 2021, the delegate refused to grant the applicant a protection visa under s 65 of the Act. The delegate considered the applicant’s claims for protection but found that the information provided was unconvincing and lacked any verifiable details. The delegate did not accept that the applicant’s parents had transferred any property to the applicant or that he stands to inherit any property in India. Nor did the delegate accept that there were any court or legal proceedings pertaining to his parent’s property. The delegate also did not accept the applicant’s claims regarding his ongoing conflict with his brother, [Mr C]. Notwithstanding this, the delegate accepted that the applicant was a Sikh but found that based on the evidence before him including the country information, there was not a real chance that he would suffer serious harm or a real risk that he would suffer significant harm because of his religion on return to India. The delegate concluded that the applicant was not a person whom Australia had protection obligations as outlined in paragraphs 36(2)(a) or 36(2)(aa) of the Act.
On 11 March 2022, the applicant submitted a further statement in support of his application to the Tribunal (2022 statement). In summary, the applicant claims:
·He has already provided evidence of a feud between his parents and his brother in India. After his parents’ “demise”, he will be the heir to their property. His brother will not let this happen.
·His parents have already disowned his brother and filed a complaint against him for physical harassment and mental torture. He does not want to be a part of this matter. He has been in Australia since 2009. He has not returned to India because of the feud in his family.
·He fears if he returns to India he will be harassed by his brother in relation to the “property issues”. He has no connections in India and believes he will be in danger there.
·Police and court hearings will be agonising for him as he hasn’t been in India since 2009.
No further material, information, documents and/or written arguments or submissions relating to the applicant’s claims for protection have been provided to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 applicant meets the criteria for the grant of the protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference (and receiving country)
The applicant has provided to the Tribunal a copy of his current Republic of India passport ([Number]). The Tribunal is satisfied that the applicant is a citizen of India. There is no evidence before the Tribunal to suggest that the applicant has citizenship of any other country, or that he has a right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied that s 36(3) of the Act does not apply. The Tribunal finds that the receiving country is India; and on this basis the applicant’s claims have been assessed against India.
Does the applicant satisfy the refugee criterion for protection?
The mere fact that a person claims a fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to persuade the Tribunal that all the statutory elements are made out.[3] 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 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 applicant’s claims, or to establish or assist in establishing the claims: s 5AAA. Nor is the Tribunal required to accept uncritically any and all claims made by an applicant.[4]
[3] MIEA v Guo (1997) 191 CLR 559.
[4] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
The Tribunal has considered the applicant’s claims for protection set out in his application for a protection and his and his father’s statements, however, for the following reasons, like the delegate, the Tribunal does not accept the applicant’s claims for protection relating to his brother are true.
Firstly, the details the applicant has provided about the property dispute involving his brother are superficial and unconvincing. For example, the applicant has not provided any details of his brother’s criminal actions/activities and/or how his brother has disobeyed his parents. Nor is it evident on the information provided, when his brother became connected with “powerful people” in society, who these people are or the extent of his brother’s connection or involvement. It also remains unclear from the information provided why such “powerful people” would want to facilitate his brother’s criminal activities and/or reward his brother by allowing his brother to hurt people. The applicant has also not provided any dates, times or the details of threatening phone calls he claims to have received.
Secondly, the applicant has not provided any documents to substantiate a core aspect of his claims for protection, that being the transfer of his family’s property into his name. He has stated that it is this property transfer which has led to his brother becoming jealous and upset with him. The Tribunal has read the applicant’s father’s statement, the only document provided in support of his claims for protection, however, it makes no mention of a transfer of any type of estate and/or property to the applicant. In fact, it makes no mention of the applicant by name at all. This statement is not a will, nor does it clearly express his father’s wishes on how any assets including the family property are to be distributed on death, including to whom.
Based on the information provided by the applicant, and the concerns expressed above, the Tribunal does not accept that the applicant’s claims that his family and/or parents have transferred and/or gifted and/or made a bequest in a will or trust of any type of property including the family to the applicant. It follows, that the Tribunal does not accept the applicant’s claims that his brother will attempt to and/or take his family’s property from him on return to India. Nor does the Tribunal accept that the applicant’s brother has made threats to harm and/or mistreat the applicant including torturing and/or killing him should he return to India. Like the delegate, the Tribunal finds the applicant’s claims for protection relating to a property dispute involving his brother are not credible.
Separately, the Tribunal has considered the details of the applicant’s father’s statement. The Tribunal is prepared to accept that as set out in the statement, the applicant’s father does not reside with and/or have any association and/or affiliation with the applicant’s brother, daughter-in-law and grandson, and does not wish for them to have his estate and/or any of his property, should he die. However, as outlined above, his father’s statement makes no mention of the applicant nor does it substantiate the applicant’s evidence that his father and/or his parents have been attacked and/or threatened by his brother and/or sought to solve the issues with his brother with the village communal (panachayat) and/or filed any type of complaint including with the police and/or that there are any legal and/or court cases filed and/or ongoing in India. The applicant has not provided any documentary evidence to substantiate these aspects of the claims.
Based on the information provided by the applicant, and the concerns expressed above, the Tribunal does not accept that the applicant’s father and/or his parents have been attacked and/or threatened by his brother and/or sought to solve the issues with his brother with the village communal (panachayat) and/or filed any type of complaint including with the police and/or that there are any legal and/or court cases filed and/or ongoing in India. It follows, that the Tribunal does not accept that on return to India the applicant will have to engage or be a part of any type of legal and/or court cases and/or hearings and won’t be able to get a police clearance because of any issues arising from a property dispute involving his brother and/or any issues between his father and/or parents and his brother, sister-in-law and nephew.
Notwithstanding the above findings, the Tribunal notes that in his application for a protection visa, the applicant states his religion as “Sikhism”, which like the delegate, the Tribunal accepts. In the application for a protection visa, the applicant claimed that there is no future and life left for him in India and he will experience mental and physical harm because of his religion. Apart from this statement, the applicant has not claimed that he has experienced any issues because of his religion in the past.
In 2023, the Department of Foreign Affairs and Trade reported that Sikhism is the dominant religion in Punjab. There are significant populations of Sikhs in nearby states such as Haryana, Delhi, Rajasthan, Uttar Pradesh and Uttarakhand and there are Sikhs all over the country. Sikhism was founded in Punjab in the late 15th century. Unlike Hinduism, it is monotheistic. Its religious values emphasise equality and service to the poor. Sikhs commonly work in many industries, notably agriculture, transport and business. There are very senior Sikhs in politics and Sikhs are well represented in the armed forces. Sikh men in particular are readily identifiable because of their turbans and long, full beards. This visibility means that they are a common sight in the streets as well as in media and entertainment.[5]
[5] Australian Government - Department of Foreign Affairs and Trade (DFAT), DFAT 2023 Country Information Report India (Report, 29 September 2023).
Some Sikhs claim that their beliefs are not properly recognised by the Indian Government as a religion; the constitution groups Sikhs, Buddhists and Jains with Hinduism, for example. This means that laws relating to Hindu marriage, for example, also apply to Sikhs. A small number of Sikhs support a separatist movement for the creation of an independent Sikh state called ‘Khalistan’. The separatist movement has now been mostly supressed within India, however low-level tensions remain and there are continued calls for compensation for the Sikhs killed in violence.
DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence. This may be because most Sikhs live in Punjab, which is a majority Sikh state, and Sikhs outside of Punjab have strong communities based around their places of worship. However, DFAT is not aware of violence or discrimination commonly occurring against Sikhs in other parts of India.[6]
[6] Ibid.
The country information indicates that Sikhs in India generally face a low level of official and societal discrimination and violence, and can practice their beliefs/religion, work, participate in politics and the armed forces. The applicant has not claimed that he has ever been involved in any separatist movements and/or activities and/or expressed that he intends to be in the future. Given the applicant’s lack of any past or present involvement with any separatist activities and/or opinions, the Tribunal does not accept that on return the applicant would become an activist and/or be involved in any separatist movement activities.
Approximately 16 million Sikhs live in Punjab, which is a majority Sikh state,[7] and the country information before the Tribunal does not suggest that they are imputed to be supporters and/or involved with separatists by the Indian authorities and/or other groups in India merely because they are Sikh. Like the delegate, the Tribunal finds that the evidence before it does not support that the ordinary Sikhs in Punjab, where the applicant resided prior to his arrival in Australia, are targeted and harmed by anyone including the Indian authorities. Having considered the country information and the applicant’s individual profile, the Tribunal does not accept that the applicant faces a real chance of harm on the basis of his religion as a Sikh should he return to India, now or in the reasonably foreseeable future.
[7] Australian Government - Department of Foreign Affairs and Trade (DFAT), DFAT 2020 Country Information Report India (Report, 10 December 2020); Australian Government - Department of Foreign Affairs and Trade (DFAT), DFAT 2023 Country Information Report India (Report, 29 September 2023).
Having regard to the all the evidence, the Tribunal is not satisfied that there is a real chance of the applicant being harmed by any person or group or by the Indian authorities on the basis of his religion as a Sikh, his past experiences or profile, or for any other reasons claimed, either individually and/or cumulatively, should he return to India, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
In considering whether the applicant meets the complementary protection criterion under s36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.
As set out above, the Tribunal is not satisfied that there is a real chance of the applicant being harmed by any person or group or by the Indian authorities on the basis of his religion as a Sikh, his past experiences or profile, or for any other reasons claimed, either individually and/or cumulatively, should he return to India, now or in the reasonably foreseeable future. The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion;[8] and it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.
[8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
In the applicant’s 2021 statement, he stated that he was living in a de-facto relationship with his partner, [Ms A]. He made no mention of his relationship status and/or his partner in his 2022 statement which he submitted to the Tribunal. Notwithstanding this, the Tribunal is prepared to accept that the applicant continues to be in a de-facto relationship, and based on the information in 2021 statement, should the applicant return to India, his de-facto partner would not return with him. The Tribunal accepts that should such separation occur, it may be upsetting for the applicant, however, on the evidence before it, the Tribunal does not accept that any such separation would be permanent or long term or constitute the type of harm considered to be significant harm under s 36(2A). In any event, Australian courts[9] have confirmed that separation from one’s family in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definition of significant harm under s 36(2A). It follows, that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm on account of any separation from his de-factor partner.
[9] SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 at [47]-[49]; GLD v Minister for Home Affairs [2020] FCAFA 2 at [36]-[58]; AWC21 v Minister for Home Affairs [2022] FCA at [29].
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)(aa).
Member of the same family unit
There is no information before the Tribunal to suggest that the applicant’s de-facto partner has been granted a protection visa and/or 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.
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.
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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.
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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.
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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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