2308166 (Refugee) - [2025] ARTA 1981

2308166 (REFUGEE) [2025] ARTA 1981 (12 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2308166
Tribunal:General Member T H R Baggiano
Date:12 September 2025

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

Statement made on 12 September 2025 at 2:54pm
CATCHWORDS
REFUGEE – protection visa – India – religion and political opinion – Sikh and separatist supporter – non-acceptance by Hindu neighbours and discrimination and attack in public – affiliation with banned student group – no further information provided and consent to decision without hearing – responsibility to specify claims and provide evidence – claims accepted in part – one-off or occasional experiences not serious harm or persecution as defined – country information – low level of official and societal discrimination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (4)(b), (5)(c), 36(2)(a), (aa), (2A), 65, 348A
Administrative Review Tribunal Act 2024 (Cth), s 106(1), (3)
Migration Regulations 1994 (Cth), Schedule 2
CASE
Chan Yee Kin v MIEA (1989) 169 CLR 379
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
Randhawa v MILGEA (1994) 52 FCR 437
VSAI v MIMIA [2004] FCA 1602
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 6 June 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. The decision and statement of reasons is made by the Tribunal.
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…

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 2308166 (Refugee)

Details

AGLC: 2308166 (Refugee) [2025] ARTA 1981
Case: [2025] ARTA 1981
Decision Date: 12 September 2025

CaseChat Overview and Summary

The applicant, a citizen of India, sought a protection visa from Australia, claiming religious and political persecution due to his Sikh faith and support for separatist movements in Punjab. The Refugee Review Tribunal was tasked with reviewing the delegate's decision to refuse the applicant's visa application. The key legal issues the Tribunal had to address were whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth), specifically regarding the definition of persecution and whether the applicant faced serious harm due to their religion or political opinions. Additionally, the Tribunal had to consider whether the applicant's claims were substantiated by credible evidence.

The Tribunal concluded that the applicant's claims, while credible, did not meet the threshold for protection under the Act. The Tribunal accepted that the applicant had faced some discrimination and attacks in India due to his religious and political beliefs, but these incidents were not severe enough to constitute persecution as defined by the Act. The Tribunal noted that the country information indicated a low level of official and societal discrimination against Sikhs and political separatists in India. The Tribunal also found that the applicant had not provided sufficient evidence to substantiate their claims of persecution. As such, the Tribunal affirmed the delegate's decision to refuse the applicant's protection visa application.

In light of the above findings, the Tribunal affirmed the delegate's decision to refuse the applicant's protection visa application. The Tribunal found that the applicant had not provided sufficient evidence to meet the criteria for a protection visa under the Act. The Tribunal also noted that the country information did not support the applicant's claims of serious harm or persecution in India due to their religious or political beliefs. Consequently, the Tribunal upheld the delegate's decision and denied the applicant's application for review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCEBackground and receiving country The applicant claims to be a [Age]-year-old national of India. The applicant has claimed his place of birth as Pathankot, Punjab, his ethnicity as Indian and his religion as Sikhism. 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 me to the contrary. I find that the applicant is a citizen of India, and that India is his receiving country for the purposes of assessing his claims for protection. Procedural history On 19 August 2020, the applicant applied for a protection visa. On 19 August 2020, the Department sent to the applicant an automated acknowledgement of application letter which stated that the Department may make a decision on his application without requesting additional information, and that he should provide the Department with all information that is relevant. On 24 August 2020, the Department sent to the applicant a letter acknowledging receipt of his valid application for a protection visa. The letter stated that all claims, supporting documentation and evidence should have been provided when the protection visa application was lodged. However, the Department advised that applicant that additional information could be submitted via ImmiAccount, email or by post. The Department also stated that a decision could be made on his application at any time after it was found to be a valid application based on the information provided and without further opportunity to present any more information at an interview. On 6 June 2023, the delegate refused the applicant’s protection visa application. On 9 June 2023, the applicant applied for review of the delegate’s decision with the Tribunal. The review application was acknowledged by the Tribunal on 13 June 2023 and the acknowledgement letter invited the applicant to provide any further material or written arguments as soon as possible. On 13 March 2025, the Tribunal invited the applicant to complete a pre-hearing information form. On 20 March 2025, the applicant submitted a completed pre-hearing information to the Tribunal. Where the form asked for details of the applicant’s claims for protection, the applicant stated the following:a.Even though time has passed since my arrival in Australia and the occurrence of this events, I have very reliable information from credible sources that I would still be in real danger were I was [sic] to return to India.

Decision

Reasons for decision

In the circumstances, the hearing was cancelled and the Tribunal proceeded with a decision on the papers for reasons set out below. Making a decision without a hearing The circumstances in which the Tribunal may reach a decision without a hearing in respect of a reviewable decision is set out in s 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). Section 106(1) provides that the Tribunal may make its decision in the proceedings in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) apply. Section 106(3) of the Act states that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the proceeding or hearing of the proceeding are the applicant and the non-participating party, the applicant requests the Tribunal to make its decision without holding a hearing, and the Tribunal is satisfied the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. Section 348A 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. I note that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Multicultural Affairs. The Tribunal has before it a copy of the Department’s file, which includes the applicant’s protection visa application form and the delegate’s decision record. Based on this information, the Tribunal is able to determine the applicant’s identity and receiving country. It is also able to form conclusions about whether the applicant meets the criteria for a protection visa under ss 36(2)(a) and 36(2)(aa) of the Act without seeking further evidence or submissions from the applicant. It is acknowledged that ss 36(2)(b) and (c) of the Act may also be issues for determination in the proceeding, but in this particular case, there is no evidence to suggest that those criteria are met. According to EIZ20 v Child Support Registrar, it is for the Tribunal to decide whether an application can be adequately determined without holding a hearing.[1] In carrying out its duties, the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues in a review application. If the parties do not take action to dissuade the Tribunal that the decision can be adequately determined in the absence of the parties, there is no obligation for the Tribunal to seek further information or hold a hearing.[2] The Tribunal may also find that there is sufficient information before it in order to adequately determine the issues in the application, but still determine that there is insufficient evidence in order to substantiate the applicant’s claims for protection.[3][1] EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 (20 Jul 2023).[2] Ibid [60].[3] Ibid [69].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.