2311277 (Refugee)

Case [2025] ARTA 1591

2311277 (Refugee) [2025] ARTA 1591 (1 July 2025)

Decision and
Reasons for Decision

Respondent:

Minister for Immigration and Citizenship

Tribunal Number:

2311277

Tribunal:

General Member F Robertson

Date:

1 July 2025

Place:

Perth

Decision:

The Tribunal affirms the decision under review

Statement made on 01 July 2025 at 8:36am

CATCHWORDS

REFUGEE – protection visa – India – fears harm from uncle over land dispute – claims being shot by uncle – claims of past sexual harm – claims being involved in political movement – claims uncle has links to police, gangsters and politicians – return trips by applicant and broader family – incarcerated – new claims not accepted – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 36, 65, 359A, 369

Migration Regulations 1994 (Cth), Schedule 2

CASES

ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83; 361 ALR 227

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496

DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1

EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804

Fox v Percy [2003] HCA 22; 214 CLR 118

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347

SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 348

W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757

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

INTRODUCTION

  1. This is an application for review of a decision to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (Act).

  2. The applicant is [an age]-year-old male who is a national of India. The applicant last arrived in Australia in April 2019 as the holder of a student visa and applied for a protection visa in May 2023. That application was refused by a delegate of the Minister for Home Affairs on 3 July 2023.

  3. The applicant has applied for review of that decision. The application was heard on 10 June 2025. Following that hearing, I have determined that the decision under review should be affirmed. These are my reasons.

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Details
AGLC
2311277 (Refugee) [2025] ARTA 1591
Case
[2025] ARTA 1591
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of India, sought a protection visa in Australia, claiming fear of persecution if returned to his home country. The case was heard in the Administrative Appeals Tribunal. The central issue was whether the applicant faced a real risk of significant harm, constituting a well-founded fear of persecution if returned to India. The applicant claimed that his uncle had threatened and physically harmed him due to land disputes, and he feared further violence from his uncle, who had links to criminal and political figures. Additionally, the applicant claimed past sexual abuse by his uncle and involvement in a political movement that had led to threats from the Hindu community. The Tribunal assessed the applicant's claims against the statutory definitions of "well-founded fear of persecution" and "real risk of significant harm."

The Tribunal found that while the applicant had suffered a serious assault in 2009 and reported it to the police, he had remained in India for seven years afterward without further incident. The Tribunal concluded that if there had been an ongoing threat to his safety, it would likely have manifested during this period. The Tribunal also noted the applicant's ability to relocate within India due to his qualifications, employment experience, and language skills. Furthermore, the Tribunal did not accept the applicant's claims of past sexual abuse or ongoing threats from his uncle as sufficient to establish a real risk of significant harm. The Tribunal dismissed the application, finding that the applicant's fears were not well-founded.

The Tribunal upheld the delegate's decision, finding that the applicant's claims were not supported by the evidence. The Tribunal affirmed the decision under review, denying the application for a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9]CLAIMS AND EVIDENCE[8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.Protection visa application The applicant claimed to fear being killed or badly injured if returned to India. This fear arises from an incident in or around 2009, when he states he was beaten and threatened with death by individuals from his town. He attributes this violence to ongoing land disputes involving his family. As a result of the incident, he says he sustained serious injuries, lost blood, and required hospitalisation for several days. He reports that he lodged a complaint with the local police and registered a First Information Report. According to the applicant, the police gathered documents and commenced a court case. He indicates that documentation relating to these proceedings was attached to his visa application. Despite the prior court case, the applicant does not believe the Indian authorities can or will protect him if he returns. He states that official protection in India is only reactive and would not prevent future harm, particularly if he were to be killed. He also claims that he has no support in India, noting that his family is now in Australia. He did not relocate within India following the 2009 incident, stating he remained in his hometown to care for his father, who was suffering from [Health condition 1]. He claims relocation within India is not a viable option for him now, asserting that his life would be at high risk and that he has no alternative place to live. He says his only accommodation option is with his [sibling] in Australia. The applicant was not interviewed in relation to the application. Delegate's decision The delegate accepted that the applicant was assaulted in India in or around 2009, and that the incident arose in connection with an ongoing land dispute involving the applicant’s family. The delegate also accepted that the assault was serious enough to warrant hospitalisation, and that the matter was reported to police and became the subject of a court case. These facts were not disputed and were accepted for the purpose of the decision. The delegate also accepted that the applicant experienced psychological distress arising from his conviction in Australia in March 2023 for [Criminal offence 1]. The evidence before the delegate included medical and psychological material indicating the applicant suffered from stress, anxiety, mood swings and depression, and had attended counselling. These circumstances were not in dispute and were accepted.

Decision

Reasons for decision

The applicant was not interviewed in relation to the application. Delegate's decision The delegate accepted that the applicant was assaulted in India in or around 2009, and that the incident arose in connection with an ongoing land dispute involving the applicant’s family. The delegate also accepted that the assault was serious enough to warrant hospitalisation, and that the matter was reported to police and became the subject of a court case. These facts were not disputed and were accepted for the purpose of the decision. The delegate also accepted that the applicant experienced psychological distress arising from his conviction in Australia in March 2023 for [Criminal offence 1]. The evidence before the delegate included medical and psychological material indicating the applicant suffered from stress, anxiety, mood swings and depression, and had attended counselling. These circumstances were not in dispute and were accepted. However, the delegate did not accept that the applicant currently faces a real risk of being killed or seriously harmed by the individuals responsible for the 2009 assault. The applicant had remained in his home area of Jalandhar, Punjab, for a period of seven years following the incident, before departing India in 2016. During this time, there were no further incidents of harm or threats reported by the applicant. The delegate found that if there had been a genuine and ongoing threat to the applicant’s life or safety, it would reasonably have materialised during that extended period. In light of this, the claim of a continuing threat was not accepted. The delegate also rejected the applicant’s assertion that he could not relocate to another part of India. The applicant is a relatively young, single man with tertiary qualifications in [Area of study 1], two and a half years of work experience in Australia as [an Occupation 1], and proficiency in English and Punjabi. The delegate found that these attributes would support the applicant’s capacity to re-establish himself elsewhere in India. While the delegate accepted that the applicant’s psychological condition may have caused him difficulty, it was not considered to amount to a significant impediment to internal relocation. Finally, the delegate did not accept that the applicant’s lack of familial support or accommodation in India gave rise to a real risk of serious harm or made relocation unreasonable. Although the applicant expressed concern that he would have no one to support him and nowhere to live, the delegate found these circumstances did not amount to a real risk of harm as defined, nor did they make internal relocation unreasonable in the applicant’s case.Review application The applicant applied for review of the delegate's decision in July 2023. In April 2025, the applicant provided a pre-hearing information form in which he responded to a question about whether he wished to add to, or supplement, his claims for protection by indicating that I would like to inform you that I applied for protection visa on the following grounds:From 2008 to 2016 just before I came to Australia. I have been targeted to killed by my uncle. I was shotted on his [Body part 1].[Uncle A] is part of [Gang 1] (gangs). which are everywhere is India. [Uncle A] who is aiming to take over my dad heritage land in [Village 1], district Jalandhar, Punjab,India.I was bodily harmed in 2008. all police reported and court evidence has been provided to department of home affairs when protection visa application is lodged.Further information can be obtained from [Police].Details - [Police] Name - [Mr B] ([Job title 1])Ph – [phone number]2. [Uncle A] sexual assaulting claims:When I was 12 years old [Uncle A] (my uncle was sexual assaulting me all the time when ever my family is working. He came to our house several times and touch me in private area. I told my family about it during that time and [Uncle A] completed ignore the fact he never come to our house.it been very changeling for me go back, because he is living next to our house.3. family in AustraliaI have [several] siblings and older mother. all my family is living in Australia and i have no one in India. I get support from my family. Once i get my visa approved, i have safe accommodation to in [City 1], western Australia.4. [Movement 1] activities- As I am [a Movement 1] supporter and involved in media activities and promote [Movement 1] culture. [Movement 1] Population is only 2% in India. I also received several threats from Hindu community. They also targeting me on return to India.

Ratio Decidendi

Legal Principle Established

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.[2] Among other things, persecution must involve serious harm[3] and systematic and discriminatory conduct.[4][2] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[3] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act contains a non-exhaustive list of examples of harm that involve serious harm, without otherwise limiting the nature or type of harm that might come within s 5J(4)(b). [4] Migration Act 1958 (Cth), s 5J(4)(c). A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[6] [5] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[6] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.Complementary protection criterion A person who does not satisfy the ‘refugee criterion’ in s 36(2)(a) of the Act, may satisfy the 'complementary protection criterion' under s 36(2)(aa). That criterion is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[7][7] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ). The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9]CLAIMS AND EVIDENCE[8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.Protection visa application The applicant claimed to fear being killed or badly injured if returned to India. This fear arises from an incident in or around 2009, when he states he was beaten and threatened with death by individuals from his town. He attributes this violence to ongoing land disputes involving his family. As a result of the incident, he says he sustained serious injuries, lost blood, and required hospitalisation for several days. He reports that he lodged a complaint with the local police and registered a First Information Report. According to the applicant, the police gathered documents and commenced a court case. He indicates that documentation relating to these proceedings was attached to his visa application.