2205855 (Refugee) - [2025] ARTA 1764

2205855 (Refugee) [2025] ARTA 1764 (22 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2205855
Tribunal:General Member R Hampson
Date:22 July 2025

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

Statement made on 22 July 2025 at 3:21pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – Patel caste – escalation of violence between Patel caste and other groups within Indian society – activist family – fears being forced to join movement by family and be violently targeted – decision on the papers, without a hearing – father gravely unwell – 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, 5AAA, 5H, 5J–5LA, 36, 56, 65, 369, 384, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
2010120 (Refugee) [2025] ARTA 550
2203419 (Refugee) [2025] ART
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR
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 1 April 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 15 October 2018. On 1 April 2022 the delegate refused to grant the visas on the basis that they are not persons to whom Australia owes protection obligations.
The applicant applied to the Tribunal on 20 April 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 were sent a pre-hearing information form on 6 February 2025. This form includes questions about whether the applicants requires an interpreter if there were to be a hearing, and if they wished for this to be a video hearing, along with a space to add details of their claims for protection. The applicants did not respond to this form.
On 1 July 2025 the applicants were invited to attend a hearing before the Tribunal set down for 11 August 2025.
On 10 July 2025 the applicants responded to this hearing invitation form stating by crossing a box that they would not participate in the hearing and to request…

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 2205855 (Refugee)

Details

AGLC: 2205855 (Refugee) [2025] ARTA 1764
Case: [2025] ARTA 1764
Decision Date: 22 July 2025

CaseChat Overview and Summary

In the matter of 2205855 (Refugee), the applicants, who are nationals of India, sought a protection visa based on their claims of persecution due to their involvement in the Patel caste movement in Gujarat. The applicants, both from the Patel caste, argued that escalating violence between their caste and other groups in India posed a risk to their safety if they were to return to their home country. The Tribunal reviewed the matter on the papers, without a hearing, due to the father of the first applicant being gravely unwell and the applicants’ request for an expedited decision.

The legal issues before the Tribunal involved determining whether the applicants qualified for a protection visa under the 'refugee' criterion, as defined in section 5H of the Act, or under the 'complementary protection' criterion, as outlined in section 36(2)(aa) of the Act. The applicants had to demonstrate a well-founded fear of persecution based on their political opinions or membership in a particular social group, and a real chance of being persecuted if returned to India.

The Tribunal found that the applicants' claims lacked detail, substance, and evidence. The delegate had previously rejected the applicants' claims, and despite an opportunity to provide more information, the applicants did not avail themselves of this opportunity. The Tribunal affirmed the delegate's decision, concluding that the applicants did not meet the criteria for a protection visa under either the refugee or complementary protection grounds. The Tribunal found that the applicants did not demonstrate a well-founded fear of persecution or a real risk of significant harm if returned to India.

The Tribunal did not find it necessary to hold a hearing as the applicants had not provided any new evidence or submissions that could change the outcome of the case. The urgency expressed by the applicants due to their father's medical condition did not alter the Tribunal's assessment of the applicants' claims. The Tribunal concluded that the applicants were not entitled to a protection visa based on the evidence and submissions presented.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal is satisfied that the applicants have had an opportunity to present their case and provide all the information, evidence and submissions that they consider important and relevant in support of their 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.BACKGROUNDEvidence before the DepartmentProtection visa application According to her protection visa application dated 15 October 2018, the applicants claim to be now [age] and [age] year old nationals of India. Both applicants were born in India. They claim their ethnicity is Gujarati and their religion is Hinduism. They were married in India in1999 and have [an age] year old [child]. The applicants have an extensive migration history which was extracted from the delegates decision record at included at paragraph 16 above. The applicants have separate claims and these as summarised by the delegate are included below:The first applicant: He is from the Patel caste in Gujarat. He left India in 2009 and while there had been sectarianviolence between Muslims and Hindus, he had not experienced any harm prior to hisdeparture. In the intervening years, there has been an escalation of violence between the Patel casteand other groups within Indian society. The Patel caste have been campaigning for affirmative action in the allocation of universityplaces and government jobs and his family are very active in the cause. He is concerned that if he returns to India his father will compel him to join the movement andthat he may become involved in the violence and be harmed. Conversely, he is concernedthat if he does not join the movement, the campaigners will target him. He does not wish to become involved with the Patel campaign, as he is a pacifist[5].The second applicant:Applicant 2 has made her own claims for protection that are largely like her husband’s claims,plus, the following additional claim: As a female, she would feel scared and threatened if she had to relocate to another part of India[6].Supporting documents [5] The delegate’s decision record, p3, dated 1 April 2022[6] Ibid, p4. The applicants provided the department with the following documents along with their protection visa application:a.A copy of their Indian passports.b.A copy of their marriage certificatec.A copy of their respective payslips for jobs they work at in Australia. d.The first applicant’s Australian drivers licence.Interview The applicants were not offered an interview with the delegate. Summary of the delegate’s decision The delegate did not accept any of the first or second applicants claims, finding they lacked detail, substance and evidence and the applicants did not avail themselves of the opportunity to provide more detail on these claims in response to the s 56 letter. The delegate did not accept either of the applicants claims both together and separately in their entirety.

Evidence

Evidence Before The Court

The applicants have contacted the Tribunal by email on Saturday 19 July 2025 with a request for an expedited decision based on the following statement (extracted from the email):‘My hearing on 11th Aug 9.30 am. I already responded we are not attending. I got your email any decision you notifed me. Now my current situation .my father [has Medical condition 1] latest report 19 th July. Decision help me wind up as soon as possible, because I came here 2009 as student visa now I am on bridge visa E so my visa conditions not allowed to go any country. Decision help me rent break leage, super, banking’.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

Decision

Reasons for decision

The applicants were not offered an interview with the delegate. Summary of the delegate’s decision The delegate did not accept any of the first or second applicants claims, finding they lacked detail, substance and evidence and the applicants did not avail themselves of the opportunity to provide more detail on these claims in response to the s 56 letter. The delegate did not accept either of the applicants claims both together and separately in their entirety. The delegate therefore concluded they were not satisfied the applicants were refugees as defined by s 5H of the Act and as such not a person to whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate then considered if the applicants met the criteria for complementary protection as defined by s 36(2)(aa) of the Act and determined they were not satisfied the applicants were persons in respect of whom Australia had protection obligations as provided for by s 36(2)(aa) of the Act. Evidence before the Tribunal The applicants did not provide the Tribunal with any further evidence or submissions on 7 July 2025 after requesting a decision be made without hearing which was accepted and acknowledged to the by the Tribunal on 15 July 2025. The applicants have contacted the Tribunal by email on Saturday 19 July 2025 with a request for an expedited decision based on the following statement (extracted from the email):‘My hearing on 11th Aug 9.30 am. I already responded we are not attending. I got your email any decision you notifed me. Now my current situation .my father [has Medical condition 1] latest report 19 th July. Decision help me wind up as soon as possible, because I came here 2009 as student visa now I am on bridge visa E so my visa conditions not allowed to go any country. Decision help me rent break leage, super, banking’.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).

Ratio Decidendi

Legal Principle Established

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