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 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background 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.
On 11 July 2025, the Tribunal sent to the applicant a ‘Notice of hearing’ letter advising that a hearing had been scheduled for 16 September 2025. The letter requested that the applicant provide all documents he intends to rely on to support her matter by 9 September 2025. The letter also advised the applicant that he may use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing, noting that if he was to request such action, and the Tribunal proceeds to make a decision because it considers the issues can be determined in his absence, this does not guarantee the applicant will receive a favourable decision. The letter requested the applicant read and complete the ‘Response to hearing notice’ form and return it to the Tribunal within seven days.
On 9 September 2025, the applicant submitted a completed ‘Response to hearing notice’ form to the Tribunal. In Part 1 of the form, the applicant ticked the box indicating that he “will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing”.
On 10 September 2025, the Tribunal wrote to the applicant confirming receipt of his request for his review application to be decided without holding a hearing. The letter also stated the following:
a.A decision without a hearing might not be favourable and might result in the decision under review being affirmed;
b.The Tribunal is required to conduct an independent review of the decision under review. This means that the Tribunal considers all circumstances of his case afresh. When doing so, the Tribunal is not limited to the issues considered by the original decisionmaker. The Tribunal may identify new issues and may not agree with some, or all, of the factual findings made by the original decisionmaker;
c.The Tribunal might decide the application on a completely different basis than the original decisionmaker, including that the Tribunal is not satisfied that the applicant was an activist and supporter of the ideologies and/or groups mentioned in his protection visa application;
d.The applicant’s review application was listed for hearing because the Tribunal was not able to make a decision in his favour on the information and evidence before it. The hearing was intended to give the applicant an opportunity to provide further information and evidence before making a decision;
e.If the applicant wishes to withdraw his request for a decision without a hearing, he should do so by 2pm, 11 September 2025. If the Tribunal does not hear from the applicant by this date and time, the Tribunal will proceed on the basis that the applicant continues to request that the Tribunal make a decision without a hearing;
f.If the applicant still wishes for the Tribunal to make a decision without holding a hearing, he is invited to provide any further information or evidence that he wishes the Tribunal to consider by no later than 2pm, 12 September 2025. Any documents or written submissions not in the English language should be accompanied by English translations by a NAATI-accredited translator;
g.If satisfied that the issues in the review application can be adequately determined without a hearing, the Tribunal will proceed to make a decision based on the information and evidence before it and the hearing listed for 16 September 2025 will be cancelled;
h.If the Tribunal considers it is unable to adequately determine the issues in the applicant’s absence, the applicant may still be required to attend a hearing, in which case he would be notified of this and required to attend the hearing.
The applicant did not withdraw his request for a decision to be made without a hearing by 11 September 2025, 2pm.
The applicant did not provide any further information or evidence for consideration by 12 September 2025, 2pm.
The Tribunal concluded that the review application can be adequately determined without a hearing.
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].
Following the lodgement of the applicant’s protection visa application, he was provided with multiple opportunities by the Department on 19 August 2020 (automated acknowledgement of application letter), 24 August 2020 (acknowledgement of valid application letter) and by the Tribunal on 13 June 2023 (acknowledgement of review application letter), on 13 March 2025 (invitation to complete a pre-hearing information form), 11 July 2025 (notice of hearing letter) and 10 September 2025 (response to request for decision without hearing) to submit further information and documents. It is acknowledged that the applicant completed and submitted a pre-hearing information form on 20 March 2025 which stated that even though time had passed since his arrival in Australia and the occurrence of “this event”, he had very reliable information from credible sources that he would still be in real danger if he were to return to India. However, no information or evidence was provided in relation to this point. It is noted that the Tribunal contacted the applicant again on 10 September 2025 following his request for a decision to be made without hearing and invited him again to provide any further information or evidence by 12 September 2025 but nothing further was provided within the specified timeframe. Aside from the details in the pre-hearing information form, the applicant has not provided a response nor any further information or evidence following the abovementioned correspondence from the Department or Tribunal.
I am of the view that the applicant has been given sufficient opportunities to provide information and documentation to support his application, has been made aware of the possibility of an unfavourable outcome if a hearing is not held, and does not seek to clarify nor supplement the information he has already provided in relation to his claims for protection.
EVIDENCE
In the applicant’s protection visa application, the applicant provided the following details in his protection claims:
a.He left India after raising his intolerance in his state;
b.His family was well-off in the area but Hindu neighbours never accepted them and accused them of having a link to separatists;
c.He liked the idea of a separate state for his people as he was discriminated and humiliated in a public place;
d.He started to talk about the atrocities committed against Sikhs by the state and central government;
e.The local people did not like this and attacked him;
f.They took off his turban forcefully and cut his hair;
g.He was so furious and humiliated but could not do anything about it as they were a minority in the area;
h.This happened to many of them in their day-to-day life;
i.They got used to it and moved on;
j.He was affiliated with the banned All India Sikh Student Federation;
k.Hindu fanatics threatened the applicant with violence when he raised the issue to local government;
l.He reported the matter to police but they never took any action against the culprits;
m.He did not try to move to another part of India to seek safety as he did not feel safe to move within his country;
n.Like him, so many young students are regularly getting involved with the All India Sikh Student Federation, some of them motivated by the prospect of a separate state or some of them lost close relatives wo supported the creation of the state of Khalistan and wanted to take revenge;
o.Innocent people were arrested solely for being related to or living in the same village as a member of the opposition groups;
p.The applicant was outspoken about the atrocities committed against Sikhs. However, he was not in favour of using any violent means to create a separate state;
q.The applicant believes he will be harmed or mistreated up return to India. In recent months, hate crimes against Sikhs see to have increased in his area, and it is a reflection of rising intolerance. This danger has become catastrophic after the BJP won the general election in India and they have won in the applicant’s state. There was news every two to three days that “Sikh man” was attached by miscreants in business or public place;
r.He is very worried about his life and decided to apply for protection in Australia;
s.He does not think that authorities in his country will protect him upon return because after the BJP won their second term, hate crimes against the increased;
t.He does not think that he would be able to relocate within India as he will not be safe anywhere within India.
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.
REASONS AND FINDINGS

The applicant has not provided any further information or evidence in support of his protection claims, aside from a brief sentence in his pre-hearing information form to the Tribunal. He has not done so despite being prompted by the Department and the Tribunal on multiple occasions as outlined in paragraph 32. The applicant has also declined to attend the Tribunal’s scheduled hearing and sought for the matter to be determined in his absence. Further, in relation to the additional sentence in the applicant’s pre-hearing information form, he has not specified who his credible sources are nor why they are of the view that his life would still be in real danger upon return to India.
I note that s 5AAA of the Act states that it is the applicant’s responsibility to specify all particulars of their claim and to provide sufficient evidence to establish the claim. Although the concept of onus of proof is not relevant to administrative inquiries and decision-making, the relevant facts of the individual case need to be provided by the applicant in as much detail as necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s claim for them, nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant.[4]
[4] s 5AAA of the Act; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].
In his claims, the applicant claimed to like the idea of a separate state due to the discrimination and humiliation his people had suffered in public places, and that he had spoken out against the atrocities committed against Sikhs by the state and central government, resulting in Hindu neighbours not accepting his family and accusing them of having links with separatists. Despite the lack of detail around when, where and how often he had spoken out about these issues, I am willing to accept that these were the views that he expressed in India due to his Sikhism.
In relation to the claim that the applicant had his turban forcefully removed and his hair cut off, I accept this claim due to his Sikhism and the views that he held (discussed above) despite the lack of detail around when and where this incident took place.
However, in relation to the claim that he was affiliated with the All India Sikh Student Federation, I do not accept this claim as he has not provided any information or detail on:
a.How he was affiliated with the All India Sikh Student Federation and when this affiliation commenced and whether his affiliation was in the past or ongoing, noting that he was a student between 1988 and 2000;
b.If he was affiliated with All India Sikh Student Federation, what his involvement was with this group, whether he took part in any protests or activities run by the group and when these activities took place;
c.Any harm or harassment he suffered from authorities as a result of his affiliation with the All India Sikh Student Federation and when any such incidents occurred.
Refugee criterion assessment
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
I have accepted the applicant’s claims that he spoke out against discrimination and atrocities committed against Sikhs which resulted in negative reactions from Hindu neighbours and his turban being forcefully removed, his hair cut off and being accused of having links to separatists. However, I need to consider whether the harm involves ‘serious harm’ and amounts to one of the types or levels of harm outlined in s 5J(5) of the Act.
In relation to the applicant’s neighbours accusing him of having links to separatists and any future accusations of the same nature, the applicant has not provided any information of harm that ensued from this accusation. As such, I find that the claimed harm does not amount to one of the types or levels of harm in s 5J(5) of the Act which qualifies as serious harm.
In relation to the act of forcefully removing the applicant’s turban and cutting off his hair, I have considered whether this harm amounts to significant physical ill-treatment under s 5J(5)(c) of the Act. I have determined that the removal of the applicant’s turban is not significant physical ill-treatment as it relates to an item of clothing that can be replaced and is not related to his person. In relation to the cutting off of his hair, while this act had an impact on the applicant’s person, the applicant has not provided any information or evidence which details any physical impact or related issues. Further, drawing on the decision of VSAI v MIMIA,[5] where Crennan J stated that frequency or regularity of certain conduct may be relevant to determining whether conduct amounts to ‘serious harm’, I am of the view that this unfortunate and unpleasant incident did not amount to serious harm due to the lack of frequency or regularity for the purposes of s 5J(4)(b). While I do not wish to be dismissive of the applicant’s experience, the applicant has not claimed that such conduct was repeated.
[5] VSAI v MIMIA [2004] FCA 1602 at [53].
Keeping in mind the importance of keeping uncut hair in the faith of Sikhism, I have also turned my mind to whether the conduct of forcefully removing the applicant’s turban and cutting off his hair resulted in serious mental harm. While the applicant had stated that this conduct resulted in him being furious and humiliated, he has not provided any further information or evidence that the anger and humiliation resulted in serious mental harm or psychological damage. As such, I find that such harm does not fall within one of the types of harm listed in s 5J(5) and/or is not at the same level of harm as the types of harm listed in s 5J(5).
Further, I have also taken into consideration and give weight to the following country information:
a.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;[6]
b.The Department of Foreign Affairs and Trade also assesses that 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.[7]
[6] DFAT Country Information Report – India, Department of Foreign Affairs and Trade, 29 September 2023, paragraph 3.60.
[7] DFAT Country Information Report – India, Department of Foreign Affairs and Trade, 29 September 2023, paragraph 3.63.
Notably, while the country information cited in this decision comes from the most current 2023 Department of Foreign Affair Country Information Report for India, the information mirrors the corresponding sections of the 2020 Country Information Report on India cited by the delegate in their protection visa decision record. I have referenced the most current Country Information Report on India as it is relevant to assessing any future persecution the applicant may face if returned to India. The applicant has not provided any response, information or evidence to rebut the 2020 country information referenced by the delegate which provides for the same assessment level.
Taking into consideration that the applicant resided in the Sikh state of Punjab and that this is his home region and that the nature and severity of harm described in the country information is not indicative of harm that would amount to serious harm, I find that there is not a real chance that the applicant will suffer serious harm if returned to India due to his religion at the hands of neighbours or ‘local people’ in Punjab.
As I have not accepted that the applicant was affiliated with the All India Sikh Student Federation, it follows that I do not accept that he would be harmed by government or authorities for his claimed affiliation with this group. Therefore, I find that there is not a real chance that the applicant will suffer any harm if returned to India due his claimed affiliation with the All India Sikh Student Federation.
For completeness, I also give weight to the country information referenced in paragraph 43 which provides an assessment of “low level of official and societal discrimination and violence” against Sikhs in India. In my view, this indicates that there is not a real chance that the applicant will suffer serious harm by authorities if returned to India due to his religion, or imputed political belief that may arise from his Sikhism.
Complementary protection criterion assessment
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa) of the Act.
Under the complementary protection criterion, I will need to consider whether the applicant has a real risk of suffering significant harm upon return to India.
Without diminishing the applicant’s claimed past experience of having his turban forcefully removed and his hair cut off, I have taken into consideration the singular occurrence of this conduct, and, from a forward-facing perspective, balanced this with the country information referenced at paragraph 43 which states that Sikhs in India generally face a low level of official and societal discrimination and violence.[8] The applicant has not given details of how long ago or how recently this incident took place. As such, I have given weight to this country information which is the most up-to-date assessment on the situation for Sikhs in India. As mentioned previously, the delegate in their decision record, also referenced the corresponding paragraph of the 2020 Department of Foreign Affairs and Trade Country Information Report on India in their decision record to which the applicant has not provided any subsequent comments on. Despite the unfortunate incident the applicant experienced previously, this country information supports my finding that there are not 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 of significant harm for the reasons claimed.
[8] DFAT Country Information Report – India, Department of Foreign Affairs and Trade, 29 September 2023, paragraph 3.63.
In relation to the applicant being accused of having links to separatists by neighbours, the applicant has not stated that he would speak up about his support for a separate state should he return to India. However, should his neighbours or ‘local people’ accuse him of having such links simply due to his Sikhism, I do not find that such harm falls within the types of harm set out by s 36(2A) of the Act. Specifically in relation to ‘degrading treatment or punishment’, the term ‘degrading treatment’ is defined as an act or omission that causes, and is intended to cause extreme humiliation which is unreasonable. In determining whether the accusation from neighbours would amount to ‘extreme humiliation’, I have taken into consideration the applicant’s circumstances and a range of factors including the applicant’s choice and ability to speak up for Sikhs whilst living in a majority Sikh state and the lack of information or detail on whether the applicant suffered any humiliation specifically due to the accusations, whether the accusations resulted in any such humiliation extending into certain areas of the applicant’s daily life and whether any such humiliation caused mental or psychological harm that reached an extreme level. Based on these factors and the lack of detail around the impact of such accusations upon the applicant, I do not accept that accusations from neighbours would be conduct that would amount to ‘degrading treatment or punishment’.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicant to the assessment of ‘well-founded fear’.[9] I have not accepted for reasons set out above, that there is a real chance that the applicant will suffer serious harm at the hands of government or authorities due to his religious and/or political (or imputed) beliefs from his claimed affiliation with the All India Sikh Student Federation.
[9] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Therefore, I am 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 of significant harm for the reasons claimed.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
T H R Baggiano
General Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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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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