2204255 (Refugee) - [2025] ARTA 1680

2204255 (REFUGEE) [2025] ARTA 1680 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2204255

Tribunal:General Member R Hampson
Date:01 July 2025

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

Statement made on 01 July 2025 at 1:43pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – opposition to the BJP government – social activist – reservation quotas to educational institutions – torture – attack on home – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106
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, 384, 499
Migration Regulations 1994, Schedule 2
CASES
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 March 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of India, applied for the visas on 20 September 2018. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations as provided for in ss 36(2)(a) or 36(2)(aa) of the Act.
The applicants applied to the Tribunal on 15 March 2022 for a review of this decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (ART). Under the transitional provisions of the Administrative Review Tribunal (Consequential and Transitional provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised before 14 October 2024 are taken to be an application for review before the ART. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicants contacted the Tribunal on 11 June 2024 requesting a letter for Medicare which was provided to them on 12 June 2024.
The Tribunal sent the applicants a prehearing information form on 6 February 2025. The applicants returned this form to the Tribunal with questions answered. In this form, the applicants were asked if they wished to participate in a hearing when scheduled by video to which they ticked the box ‘no.’ This form also included a section where the applicants could provide further information about their claims for protection, to which they did not provide any further information.
On 16 May 2025, the Tribunal sent the applicants an email inviting them to a hearing at the Brisbane registry on 25 June 2025. The hearing letter advised them to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2204255 (Refugee)

Details

AGLC: 2204255 (Refugee) [2025] ARTA 1680
Case: [2025] ARTA 1680
Decision Date: 1 July 2025

CaseChat Overview and Summary

The case involves the primary visa applicant, [name], and his wife, [name], both Indian nationals, who applied for a protection visa in Australia following their arrival on Visitor visas in August 2018. The applicants alleged they faced persecution in India due to their opposition to the BJP government and their activism related to reservation quotas in educational institutions. The primary visa applicant claimed to have been tortured and his home attacked due to his political activities. The administrative review of their protection visa refusal was conducted by the Administrative Appeals Tribunal.

The key legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under the ‘refugee’ criterion or the ‘complementary protection’ criterion, as set out in sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth). Specifically, the Tribunal had to determine if the applicants had a well-founded fear of persecution for reasons of political opinion, and if there was a real chance they would be persecuted if returned to India. Additionally, the Tribunal needed to ascertain if the applicants faced a real risk of significant harm if removed from Australia, which would trigger complementary protection obligations.

The Tribunal concluded that the applicants did not meet the criteria for a protection visa. It found that the applicants' claims were not supported by sufficient evidence to establish a well-founded fear of persecution. The Tribunal noted the lack of documentary evidence and the absence of further submissions or documents to substantiate the applicants' claims of persecution and torture. The Tribunal also considered country information and determined that the applicants would likely be able to seek protection from the Indian authorities. As a result, the Tribunal affirmed the decision under review, refusing the applicants' application for a protection visa.

The final orders of the Tribunal were to affirm the decision of the delegate, refusing the applicants' application for a protection visa. The applicants were given the right to seek review of the Tribunal's decision in the Federal Court of Australia.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal is therefore satisfied that the issues for determination can be adequately determined in the absence of the parties and that s 106(3) of the ART Act has been met. BACKGROUND According to their protection visa application the primary visa applicant, [name] (the primary visa applicant) and his wife, [name] (the secondary visa applicant) claim to be [an age] year old and [an age] year old nationals of India. The primary visa applicant was born in [Village 1], Gujarat, India. He claims his ethnicity is Indian and his religion is Hinduism. The secondary visa applicant was born in [Village 2], Gujarat, India. She claims her ethnicity is Indian and her religion in Hinduism This couple state they were married [in] May 1987 and have [number] adult children all of whom reside in Gujarat, India. The primary visa applicant has also listed his parents who are both deceased, his [siblings] who all still reside in Gujarat, India. The secondary visa applicants also listed her parents who are both deceased, and her [siblings] all of whom still reside in Gujarat, India. The applicants list their employment as self-employed selling [products] from [specified year] to 2018. Both applicants list their highest education as primary school. Both applicants arrived together in Australia [in] August 2018 on Visitor visa’s. The applicants applied for a protection visa on 20 September 2018 and were granted a Bridging visa (BVA). Evidence before the Department The applicants provided a personal statement along with their protection visa application and it is summarised below:(a)The primary visa applicant claims he was a common citizen and a social activist who helps and assists people when needed and stands for truth and justice. (b)In early 2015 his community started a movement to in the ‘reservation quota’ to give reservation to poor people in government colleges, universities, and the government sector’. The primary visa applicant was a leading voice in the community.(c)He protested peacefully but innocent people were beaten and harassed by ‘political goons of the BJP.’ (He states he has included a BBC news article in his statement, however the delegate has not been able to locate this document and it does not appear to be attached as indicated by the applicant.)(d)He then decided to run to campaign against the BJP government and attended meetings, met people there and wrote articles against the BJP government requesting people not to vote for the BJP government in the December 2017 assembly election. (e)He claims he was threatened by the government to stop his involvement in this movement and offered money to stop his involvement. (f)The BJP won government and after this, the applicant claims he was harassed and put pressure on as a voice raised against the BJP. He did not accept money offered for his silence.(g)His house was attacked and his family ‘tortured.’ (h)He went to the police but the police were ordered not to help him. (i)He could not tolerate the ‘torture’ so he decided to leave his country, India for Australia.

Evidence

Evidence Before The Court

No further documents, or submissions relating to the applicants claims for protection have been provided to the Tribunal. CONSIDERATION OF CLAIMS AND EVIDENCECriteria 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

Decision

Reasons for decision

On 20 May 2025, the applicants responded to the hearing invitation via the online portal. In this form, the applicants 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.’ 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? Section 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 only the parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour of the applicant, or the applicants request the Tribunal to make its decision without holding a hearing. Section 384(1) of the Act stipulates that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act. The Tribunal notes that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Citizenship. The applicants have 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 20 May 2025. The Tribunal finds the applicants response to be clear and unambiguous[1] indication that they do not wish to participate in a hearing and wish the Tribunal to prod to a decision on the material before it. 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[2]: 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.[3][2] 2203419 (Refugee) [2025] ART (13 June 2025).[3] Ibid.

Ratio Decidendi

Legal Principle Established

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