2311277 (Refugee)
[2025] ARTA 1591
•1 July 2025
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
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).
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.
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.
CRITERIA FOR THE GRANT OF A 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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are a member of the same family unit as a person who satisfies either s 36(2)(a) or (aa).
Refugee criterion
Section 36(2)(a) of the Act 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 decision‑maker 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.[1]
[1] Migration Act 1958 (Cth), s 5H(1)(a).
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.
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.
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 Australia
I 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.
The applicant also provided several photographs of scars to his body which I have considered.
The applicant appeared before the Tribunal on 10 June 2025 to give evidence. The hearing of the review application was unable to be completed on that day and a further hearing was held on 18 June 2025. On both occasions, the Tribunal hearing was conducted with the assistance of a Punjabi interpreter.
The applicant’s evidence
The applicant is [an age]-year-old Sikh man of Punjabi ethnicity. The applicant’s oral evidence at the hearing can be summarised as follows.
He was born in India and migrated to Australia, where he completed a diploma and advanced diploma in [Area of study 2]. He subsequently worked as [an Occupation 1], most recently in 2023. He has no children. He resides in Perth with his mother and extended family, including [siblings]. Another [sibling] lives in Melbourne. His father passed away in 2011. The applicant first travelled to Australia in 2016, and his mother, who had previously visited twice on tourist visas, has since applied for permanent residency.
The applicant stated that his family previously owned land and a home in India. Following his father’s death, his paternal uncle took control of the property around 2019. There is an ongoing legal dispute concerning this matter. The applicant alleged that during a visit to India in 2019, his uncle threatened to kill him and his entire family if they returned. He attributed these threats to a combination of familial dispute over land and his uncle’s alleged connections to politicians and criminal figures. The applicant claimed that his uncle had previously shot him in 2008, breaking bones in [Body parts 1 and 2], and causing injuries that required over a month of hospitalisation. He reported that the shooting occurred when he objected to the uncle carrying out unauthorised construction on the family property. He also claimed that medical documentation relating to these injuries remains in India and could not be obtained.
The applicant further claimed that his uncle sexually abused him as a child, beginning when he was approximately nine or ten years old. He disclosed the abuse to his family several years later. He stated that a local panchayat was convened to address the matter, but the uncle did not admit to the abuse. His evidence was that he has not disclosed these incidents to any professionals in Australia, including his psychologist, out of fear of ridicule.
In 2019, the applicant returned to India. His evidence was that he returned so that he could become engaged. He described it as a planned inter-caste marriage, which had to be kept secret. Upon discovery, members of the bride’s family and others threatened to kill him, and he claimed his uncle supported those threats. He did not have further contact with the woman and expressed concern that she may have been killed. He agreed that this matter was not included in his protection visa application, explaining that his brother prepared the application while he was in custody and did not know it should be included.
The applicant's evidence in relation to this claim became more elaborate during the second hearing on 18 June 2025, when he claimed the woman had been killed. His conclusion was based entirely on his own speculation; he stated he had been unable to contact her when he tried in November 2024, some five years after he last had contact with her in 2019, and that people in the village had told him she had not been seen. From this, he concluded she must have been killed.
When it was suggested to the applicant that a more plausible explanation for being unable to contact a person after a five-year gap was that she had married someone else, moved away, and changed her telephone number, the applicant was unwilling to accept this as a possibility. His insistence on the most dramatic and least likely explanation, without any evidence, further undermines his credibility. His offer to provide nude photographs of the woman, purportedly to prove their relationship, was an unusual and inappropriate attempt to add weight to an otherwise unsubstantiated claim. As the 2023 DFAT Report notes while inter-caste marriages can sometimes lead to family opposition,[10] the applicant’s claim is so devoid of specifics and reliant on implausible speculation that it appears to be a generic scenario constructed for the purpose of his visa application.
[10] 'DFAT Country Information Report: India ', Department of Foreign Affairs and Trade, 29 September 2023, 20230929154911 (2023 DFAT Report), [3.136]-[3.142],
The applicant acknowledged that his protection visa application did not reference the shooting, the sexual abuse, or his uncle as the perpetrator of harm. He explained this omission by stating the application was prepared by his brother during a period of incarceration and limited communication. He accepted that the application was a last resort to remain in Australia, stating that he has no support in India and fears serious harm if he returns. Despite having returned to India several times since 2016, he claimed those returns were under the impression that the land dispute was settled, and the threats had ceased. He stated that the uncle later reneged on that understanding.
Brother’s evidence
The applicant’s [brother] is now an Australian citizen and works as [an Occupation 2] with [Workplace 1]. He arrived in Australia in December 2008, shortly after a violent altercation with their paternal uncle in India, during which he stated that bones were broken and the applicant required hospital treatment. He described their uncle as having a longstanding pattern of aggression stemming from disputes over family land following their father’s death in 2011.
The brother initially stated that his last visit to India was in 2019 for his wedding. He explained that, in accordance with cultural and religious expectations, the groom’s family is traditionally required to travel to the bride’s location. He stated that the visit lasted approximately eight weeks and clarified that they did not stay at their own family property during that time. Instead, they remained with his wife’s family and were informed by locals that the uncle was not present in the area.
Upon further questioning, the brother acknowledged that he also travelled to India in March 2023 and again in January 2025 for a short trip. He did not initially mention these later trips. When pressed on this inconsistency, he attributed it to memory and maintained that he had no intention to mislead. He stated that, during such visits, the family takes steps to ascertain the uncle’s whereabouts to avoid confrontation. He also acknowledged the family’s strong attachment to the land, despite the risks.
The brother stated that he obtained a court document relating to the dispute with their uncle via online means and avoided collecting further documentation in person to prevent aggravating the situation. He acknowledged that both he and the applicant were listed as respondents in a court case initiated by the uncle, which was ultimately dismissed. He could not clarify why the same legal representative was listed for both parties, noting the similarity in names of different lawyers.
He referred to a separate ongoing dispute concerning unauthorised construction by the uncle on their family land. A local court found in their favour, and the matter is now before a district court.
The brother confirmed that he completed the applicant’s protection visa application. He did not provide a clear explanation as to why the application omitted any reference to the uncle or the alleged sexual abuse. He admitted he is not a professional and was unaware of the significance of certain claims. He acknowledged that the family’s understanding of what needed to be disclosed evolved over time.
The brother asserted his ongoing efforts to support the applicant and maintained that their uncle is a genuine threat to their safety. He acknowledged that the applicant had disclosed childhood sexual abuse within the family but noted that most relatives did not believe it at the time due to their young age. He concluded by reaffirming the seriousness of the threats and harm the applicant had experienced, including being shot.
[Friend A] [Friend A] gave oral evidence. Her evidence was brief and in fairly general terms. [Friend A] indicated she has been a close friend of the applicant for approximately five or six years. They remain in regular contact, speaking around twice a week. She said the applicant disclosed the details of his situation to her, including threats made by his uncle, [Uncle A], in connection with a dispute over family property. [Friend A] recounted that the applicant told her about a 2019 trip to India during which his uncle threatened to kill him. She confirmed that all her knowledge of these matters comes from what the applicant has told her. She also indicated that she knows the applicant’s brother, [Brother A] who she understood the applicant had told her that [Brother A] faced the same risks as the applicant.
Evidence of [Cousin A]
[Cousin A], the applicant’s cousin, claimed that their uncle, [Uncle A], is a violent individual who would go to any length for land, property, and money. He claims that [Uncle A] has previously harmed [the applicant], including shooting him and sexually harassing him on multiple occasions. [Cousin A] alleges that [Uncle A] has criminal connections, including links to police, gangsters, and politicians, and that he has killed people in the past without facing legal consequences.
He states that due to [Uncle A’s] influence and reach across India, [the applicant] is not safe anywhere in the country and would be at risk of being killed if returned. He further claims that [the applicant] has no support or accommodation in India. [Cousin A] urges the Tribunal to consider these concerns seriously, describing the matter as one involving someone’s life.
Evidence of [Mr C]
[Mr C], a former member of the [Police] and currently an elected village head and community worker from [Village 1], Punjab, provides a written statement in support of [the applicant]. He outlines his personal background, expressing disillusionment with law enforcement in India due to widespread corruption and disregard for human rights, particularly against Sikhs.
[Mr C] claimed to be well-acquainted with the conflict between [the applicant] and his uncle, [Uncle A]. He describes [Uncle A] as a politically connected gangster who has committed serious crimes, including murder, without facing prosecution. According to [Mr C], [Uncle A] has exploited his influence over police and criminals to take control of land and property belonging to [the applicant’s] family.
He claims that [Uncle A] has physically harmed [the applicant] in the past, including shooting him in the [Body part 1] and threatening to kill him. More gravely, he claims that [Uncle A] sexually abused [the applicant] when he was a child and subjected him to repeated harassment, which allegedly led to [the applicant] developing [Health condition 2]. [Mr C] asserts that [the applicant] continues to suffer from [Health condition 2 symptoms] and requires ongoing medication.
[Mr C] asserts that [the applicant] would face a real threat to his life if returned to India, stating that [Uncle A] will kill him and that police protection would be unavailable due to systemic corruption. He urges the Tribunal to consider the seriousness of the circumstances before making a decision.
Submissions and additional material provided between hearings
On 17 and 18 June, the applicant provided the following additional material:
(a)a written statement from [Witness A];
(b)a written statement from [Witness B]; and
(c)a written statement from [Witness C].
At the hearing, when asked what additional information these witnesses could provide beyond their written statements, neither the applicant nor his brother could articulate any substantive new evidence that would be adduced. Given that I had received their written evidence and that there was no indication their oral evidence would add to it, I determined that taking oral evidence from them would have limited probative value. I note that their statements were couched in similar and generally conclusory terms. In these circumstances, I considered it was not necessary to take oral evidence from them but invited submissions on what weight I should give to their written statements.
The statements from [Witnesses A, B and C] were provided between the first and second hearing dates. The timing of their provision causes me significant concern, as it suggests a coordinated attempt to bolster the applicant’s claims after weaknesses in his case were raised during the first hearing. The statements themselves are strikingly similar in content and structure, and contain broad, conclusory allegations about [Uncle A’s] character and criminal history without any detail as to the basis of the witnesses’ knowledge.
While they purport to be ‘witnesses’ to the 2008 incident, their claims of past murders and gangster connections are speculative, undetailed and unsubstantiated. Similarly, the evidence from the applicant’s cousin, [Cousin A], and village head, [Mr C], are general and lack detail. [Mr C], for example, could not articulate the specifics of the sexual abuse allegations (which he claimed were put to [Uncle A] and denied) beyond generic assertions that it was abuse and molesting the applicant. Given my serious concerns about the credibility of the applicant and his brother, who would be expected to have the best knowledge of events, I do not accept these similar, late, and conclusory statements from their friends and relatives as being reliable.
Witnesses who did not give oral evidence
In his pre-hearing information form, the applicant sought that I take oral evidence from Mr [B] who was described as a [Job title 1] of Police and who it was said could give evidence about prior police reports. I attempted to contact Mr [B] on multiple occasions at both hearings unsuccessfully. As such, I have no evidence from Mr [B] and give no weight to the submission about the evidence he would give.
ANALYSIS, FINDINGS AND REASONS
An applicant is responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.[11] When assessing the claims made, I am not required to uncritically accept any or all the allegations made.[12] I do not need rebutting evidence before finding a particular factual assertion is not made out.[13]
[11] Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 [148] (Ladhams J).
[12] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[13] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 [7] (Heerey J).
I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the Department of Foreign Affairs and Trade (DFAT) Country Information Report[14] to the extent relevant and material to the disposition of this review application.
[14] 2023 DFAT Report.
Country of nationality
The applicant claims to be a citizen of India and initially travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that India is the applicant’s country of nationality and the receiving country.
Does the applicant satisfy the refugee criterion?
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.[15]
[15] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).
Does the applicant have a well-founded fear of persecution?
In this case, I have significant concerns about the applicant’s credibility.
The assessment of credibility is a difficult task,[16] which should be careful, thoughtful, and conducted fairly and reasonably.[17] Inconsistencies in an account may or may not be significant[18] and allowances may be required where an account is given through an interpreter.[19] I should usually give the benefit of the doubt to those who are generally credible but are unable to substantiate their claims.[20]
[16] See Fox v Percy [2003] HCA 22; 214 CLR 118 [31] citing Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 348.
[17] See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [22]–[28] (Kenny, Griffiths and Mortimer JJ).
[18] ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).
[19] See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).
[20] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 [203]-[204].
The claims he has presented to the Tribunal are substantially different from, and far more serious than, those he made in his initial protection visa application. The applicant has not provided a plausible explanation for the evolution and expansion of his claims, which undermines their reliability.
The core of the applicant’s case before the delegate was a fear of harm from unnamed "individuals from his town" due to a land dispute, stemming from a single incident of being "beaten" in 2009.
Before the Tribunal, the applicant’s claims have expanded dramatically. He now appears to assert that his paternal uncle, [Uncle A], is the sole perpetrator of harm, his uncle did not merely beat him, but shot him in 2008. He also claims his uncle is a ‘gangster’ with political connections and has committed other serious crimes, including murder and that he is immune from police action. He further claimed at the Tribunal that his uncle sexually abused him throughout his childhood. The applicant further claimed that he returned to India in 2019 for a secret inter-caste proposal and marriage, but was subsequently threatened with death by the bride’s family, with his uncle’s support.
Additionally, there was a bare assertion that the applicant was a [Movement 1] supporter and has been threatened by the Hindu community.
The evolution of the original claim made to the delegate and the addition of these very serious allegations, particularly the claims of being shot and of sexual abuse, at such a late stage is highly problematic. These are not minor details that an individual would forget or consider irrelevant when making an application for protection. The applicant's explanation, that his brother completed the application form on his behalf while he was in custody and had limited communication, is not a satisfactory reason for these fundamental omissions. That is particularly so when it appears that the applicant’s brother was aware of the claimed risks and past harm.
The applicant had from May 2023 until the hearing in June 2025 to put his full case forward, yet these new claims only materialised in April 2025 and at the hearing itself. I consider that this significant delay strongly suggests that the new claims are embellishments or fabrications, created to bolster a case that the applicant knew had been found wanting by the delegate.
Information raised pursuant to s 359A of the Act
During the hearing on 18 June 2025, I identified information that I considered would be the reason, or part of the reason, for affirming the decision under review. As required by s 359A of the Act, I provided the particulars of this information to the applicant, explained its relevance and the consequences of it being relied upon and invited him to comment on the information.
Specifically, I drew the applicant’s attention to the evidence of his friend, [Friend A], who stated that both the applicant and his brother, [Brother A], faced the similar risks in India. I also referred to the evidence from his brother, [Brother A], concerning his multiple return trips to India, including as recently as January 2025 as potentially undermining the claims raised.
I explained to the applicant that this information was relevant because if his brother faced the same threat but was able to safely return to India, it would suggest that the risk to the applicant was not as great as he claimed. I informed him that relying on this information could lead me to find that he does not have a well-founded fear of persecution.
The applicant indicated that he understood the relevance of the information. In response, he claimed for the first time that the risk to him was in fact greater than the risk to his brother. He stated this was because the family land had been left directly to him by his paternal grandmother, as he was the youngest son.
I do not find this explanation to be credible. This is another significant detail about the ownership of the land that has emerged only at the very end of the review process, in direct response to information that was adverse to his case.
Throughout his application and testimony, the applicant and his brother consistently referred to the land as their ‘father's land’ or similar. This suggestion that the land was, in fact, his personal inheritance from his grandmother was a significant inconsistency. I formed the view that it was a recent invention designed to counter the problematic evidence of his brother's safe travel to India. In my view, his response in this regard further undermines the applicant’s overall credibility.
Documentary evidence relied upon
In support of his claims, the applicant submitted a document from [Court 1] in [Town 1]. He claimed this document supported the assertion that his uncle, [Uncle A], was charged by police following the alleged attack.
However, on examination, the document does not support this claim. To the contrary, it appears to list both the applicant and his uncle, [Uncle A], as respondents in a matter where the State of Punjab is the petitioner.
Further, the document indicates that both the applicant and his uncle were represented by the same advocate. When questioned about these significant anomalies, the applicant was unable to provide a clear explanation as to why he was listed as a respondent. His attempt to explain the shared legal representation by suggesting it involved two different lawyers who coincidentally shared the same name was implausible and I did not find it credible in all the circumstances.
In my view, this court document, rather than supporting his claim, further undermines the applicant’s credibility.
For all of these reasons, I do not consider that the applicant is a credible or reliable witness and I do not accept the applicant's claims are credible or reliable.
Harm from [Uncle A] (shooting, land dispute, and ongoing threats)
I do not accept that the applicant was shot by his uncle, [Uncle A], in 2008, nor do I accept that his uncle is of ongoing interest to him or poses a threat to him for any reason.
In my view, the most significant factor undermining this claim is that it was not mentioned in the applicant's protection visa application. The initial claim referred to a ‘beating’ by ‘individuals’. It is implausible that a person lodging an application based on a fear for their life would describe being shot by their uncle as a mere ‘beating’ by unnamed village people. This is a fundamental contradiction and inconsistency not a simple oversight or addition of detail.
In my view, the applicant’s own actions contradict his claim of fearing serious harm from his uncle. He remained in his home village for seven years after the alleged 2009 incident before first travelling to Australia in 2016. More importantly, he returned to India, including in 2019. His explanation that he believed the dispute was ‘settled’ is not credible and the applicant was not able to articulate any real basis for genuinely holding that belief or why that belief turned out to be untrue. That is particularly so of the applicant genuinely believed his uncle was the violent and powerful gangster, who had already shot him, broken his [Body parts 1 and 2], as now claims. I consider it to be implausible that the applicant would voluntarily return to the vicinity of an uncle who had shot them based on a vague and undetailed assumption that matters had been resolved.
The applicant’s brother also stated that he returned to India for his wedding in 2019 and made further trips in 2023 and 2025. [Brother A’s] failure to recall these recent trips during his evidence damages his credibility. The fact that family members continue to travel to India, vaguely taking ‘precautions’ but evidently not viewing the risk as prohibitive, undermines the claim of a deadly, ongoing threat.
I also do not consider that the applicant’s claims are given additional weight based on the evidence of the witnesses. As noted above, the statements are largely conclusory, use similar formulaic language despite apparently being drafted independently.
While I am prepared to accept there may be a civil dispute over family land, a relatively common occurrence in India, I find that the applicant has fabricated or grossly exaggerated the claims of violence and threats from his uncle to create a basis for a protection claim.
Claim of Childhood Sexual Abuse
I do not accept the applicant’s claim that he was sexually abused by his uncle as a child.
This is another extremely serious allegation raised for the first time more than two years after he lodged his protection application. The profound delay in raising this matter casts serious doubt on its veracity. The applicant’s stated reason for not disclosing it earlier, including to his own psychologist, namely a fear of ridicule, is self-serving and not credible in the context of a protection claim where he now asserts it as a core part of his fear. The brother’s evidence that the family did not believe the allegations when the applicant was young further weakens the claim. This allegation has the appearance of a further invention designed to add gravity to his asserted fear of his uncle.
Claim of Inter-Caste Marriage and Resulting Threats
I do not accept that the applicant travelled to India in 2019 for the purpose of an inter-caste marriage, or that he was threatened as a result.
This claim suffers from the same credibility issues as the others. It was raised for the first time at the final hearing and is entirely lacking in detail. The applicant could not provide the name of the woman, her family, or any specific details about how the alleged threats were made. His dramatic and unsubstantiated speculation that the woman may have been killed further detracts from his credibility. Whilst, I accept that the 2023 DFAT Report reports while inter-caste marriages can sometimes lead to family opposition or violence[21], I find that the applicant’s claim is so devoid of detail and specificity that it appears to be a generic scenario constructed for the purpose of his visa application rather than a recounting of his genuine personal experience. I do not accept that the applicant was engaged to, or intended to become engaged to, a woman from another caste or that he was imputed to be intending to enter into an inter-caste marriage or that he was threatened or harmed for any reason related to, or arising out of, that.
[21] 2023 DFAT Report, [3.136]-[3.142].
[Movement 1]I do not accept that the applicant is a supporter of [Movement 1] or that he has been threatened by the Hindu community for this reason.
This claim is a bare assertion made in the pre-hearing form with no evidence to support it. The applicant provided no details of his alleged "media activities" or the nature of the threats he faced. Indeed, when asked at the hearing whether there was any other reason he feared harm other than the harm he claimed to fear from his uncle and in relation to his claimed proposed inter-caste marriage, the applicant did not refer to any fears related to, or arising out of, any support for [Movement 1].
I am not satisfied that the applicant is a genuine supporter of [Movement 1]. For that reason, I do not accept that if he were to be returned to India that he would come to the adverse attention of any group for this reason. This claim appears to be a final, baseless attempt to add a further claim.
Family in Australia
The applicant refers to the presence of his family in Western Australia. I do not accept that the presence of the applicant’s family in Western Australia would result in the applicant facing a real chance of serious harm, now or in the reasonably foreseeable future, if he was to be returned to India. I find the applicant has qualifications as [an Occupation 1] and substantial work experience as [an Occupation 1] in Western Australia. I am satisfied that if the applicant were to be returned to India that he would be able to obtain employment. I am not satisfied that the presence of the applicant’s family in Western Australia would result in a threat to the applicant’s life or liberty, his significant physical harassment or significant physical ill-treatment. I am further not satisfied that it would involve the applicant facing capacity to subsist being threatened in any way or that, having regard to the non-exhaustive definition of serious harm in s 5J(5) of the Act, that it would involve the applicant facing a real chance of serious harm.
Overall conclusions and findings
Considering the claims and evidence before me, I find the applicant is not a credible or reliable witness. His account has evolved from a relatively minor (though still serious) assault claim by unnamed perpetrators into a series of unsubstantiated and implausible allegations of extreme violence and repeated persecution at the hands of his uncle. The timing of these new claims is concerning and, in my view, is indicative of fabrication or embellishment in response to the delegate's decision to refuse to grant a protection visa.
The applicant’s actions, and those of his family, in returning to India are inconsistent with his claims of fearing a real chance of serious harm. I am satisfied that the narrative concerning [Uncle A] has been fabricated or grossly exaggerated. I do not accept that the applicant is of adverse interest to [Uncle A], or any other person in India.
Insofar as I have accepted that there was, or is, a family land dispute in India, I am not satisfied that the dispute has, or will, now or in the reasonably foreseeable future, result in the applicant being targeted for harm by anyone or otherwise would result in the applicant facing a real chance of serious harm.
I have also considered the applicant’s medical conditions, namely his [Health condition 2] and the conditions referred to in the correspondence from [Medical centre 1], particular related to stress and anxiety. Having done so, I am not satisfied that the applicant faces a real chance of serious harm on account of his [Health condition 2] or his medical conditions more broadly.
I have also considered the applicant’s claims cumulatively. There is no aspect of any individual claim, when assessed together with one or more of the others, that leads me to conclude the applicant faces a well-founded fear of persecution. I have considered whether the applicant’s medical conditions might increase either the likelihood or the severity of harm, by making him more vulnerable, by amplifying the severity of any harm suffered, or by increasing the chance of such harm occurring. I am not satisfied that, even on a cumulative basis, the applicant faces a real chance of serious harm for any reason.
For the above reasons, I am not satisfied the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act or that the applicant is a refugee within the meaning of the Act. The applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion?
To satisfy s 36(2)(aa) of the Act there must be 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 that they will suffer significant harm.[22]
[22] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
Where claims overlap, I am permitted to refer to and rely on my relevant findings when considering the refugee criterion under s 36(2)(a) when assessing whether the applicant satisfied s 36(2)(aa).[23] In those circumstances and for the same reasons that I have found that the applicant does not face a real chance of serious harm, I find the applicant does not face a real risk of significant harm.
[23] See DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.
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 that they will suffer significant harm. I am not satisfied that the applicant will face a real risk of significant harm for any other reason, including on a cumulative consideration the claims raised.
For the above reasons, I find the applicant does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.
Conclusion
The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa) and find that the applicant is not 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) based on 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). The decision under review should be affirmed.
DECISION
The Tribunal affirms the decision under review.
Date of hearing:
10 June 2025 and 18 June 2025
Representative for the Applicant:
Not applicable
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