2407885 (Refugee)
[2025] ARTA 1572
•22 April 2025
2407885 (REFUGEE) [2025] ARTA 1572 (22 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2407885
Tribunal:General Member J Ermert
Date:22 April 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for protection visas for reconsideration, in accordance with the order that:
(i)both applicants meet s 36(2)(a) of the Migration Act.
Statement made on 22 April 2025 at 10:36am
CATCHWORDS
REFUGEE – Protection Visa – India – Federal Circuit Court remittal – religion – Hindu – Sikh – interfaith and inter-caste marriage – fear of harm from politician – seizure of family temple – fear harm from extremist Hindus and Sikhs – imputed political opinion – anti-Hindu nationalism/anti-Hindutva – particular social group – Indians in interfaith marriages where one partner is Hindu – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 36, 65, 367, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Guo v MIEA (1996) 64 FCR 151
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (1994) 34 ALD 347Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 8 November 2016 to refuse to grant the applicants Class XA Subclass 866 protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of India, applied for the visas on 20 November 2015 together with their two Australian-born children. The delegate refused to grant the visas on the basis that the applicants and their children are not persons in respect of whom Australia has protection obligations.
The applicants and their children’s application to the Administrative Appeals Tribunal (‘AAT’) for review of the delegate’s visa refusal decision was affirmed by the AAT on 17 September 2019. The applicants appealed the AAT’s decision to the then Federal Circuit Court of Australia.
On 8 April 2024, by consent, the Court remitted the applicants’ matter to the AAT for redetermination according to law, on the basis that the AAT committed a jurisdictional error by failing to take into account relevant material provided to the Tribunal in assessing the credibility of the first named applicant’s claims.
On 14 October 2024, the 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 applicants appeared before the Tribunal on 11 March 2025 to give evidence and present arguments. The applicants were represented in relation to the review.
At the hearing, it was noted that the review application of the applicants’ Australian-born children has been withdrawn, as the children have each turned 10 and become Australian citizens by operation of law, and evidence of the same have been provided to the Tribunal.
This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The first named applicant, [Mr A], is a [age] year old man of the Brahmin caste and an adherent of the Hindu faith. The second named applicant, [Mrs A], is a [age] year old woman of the Jatt caste and an adherent of the Sikh faith. Both applicants are citizens of India, and they came from Hoshiarpur, Punjab, India. They married [in] March 2007.
The applicants first arrived in Australia together on [date] December 2008 on Class TU Subclass 573 student visas (granted to [Mrs A] as the primary applicant and [Mr A] as the secondary/dependent applicant). Their visa history and movements since that initial arrival are as follows:
Date
[Mr A]
[Mrs A]
[date] /01/2009
Departed Australia and returned to India.
[date] /02/2009
Arrived in Australia.
11/05/2011
Granted Class TU Subclass 572 student visa (secondary visa holder).
Granted Class TU Subclass 572 student visa (primary visa holder).
13/12/2011
Applied for grant of Class VC Subclass 485 temporary graduate visa (as secondary applicant).
Applied for grant of Class VC Subclass 485 temporary graduate visa (as primary applicant).
03/11/2012
Application for temporary graduate visa refused.
Application for temporary graduate visa refused.
[date] /02/2013
Departed Australia and returned to India on bridging visa B (‘BVB’).
Departed Australia and returned to India on bridging visa B (‘BVB’).
[date] /03/2013
Arrived in Australia on BVB.
[date] /04/2013
Arrived in Australia on BVB.
02/08/2013
Decision to refuse temporary graduate visa affirmed by the then Migration Review Tribunal.
Decision to refuse temporary graduate visa affirmed by the then Migration Review Tribunal.
14/09/2015
Ministerial intervention declined.
Ministerial intervention declined.
20/11/2015
Application for Class XA Subclass 866 protection visa.
Application for Class XA Subclass 866 protection visa.
[Mr A] is the oldest in a family of three children. His parents are deceased, and his brother and sister are residing in India. He is educated to the tertiary level and holds a Bachelor [degree]. [Mrs A] is the younger of 2 children in her family and her parents and older sister are in India. She is also tertiary educated, and she holds a [degree].
The Tribunal accepts each of the above matters to be true.
Evidence before the Department
[Mr A]’s protection claims before the Department are detailed in the delegate’s decision record and can be summarised as follows:
· In March 2003, [Mr A] was asked by a local politician named [Mr C] who represented the Bharatiya Janata Party (‘BJP’) and who was also a local district [office holder] to vote for him at the municipal elections, which he did not do.
· Following [Mr C]’s election victory, [Mr C] began harassing [Mr A] and threatening revenge for not voting for him.
· [Mr A] made a police complaint in October 2004 in relation to [Mr C]’s harassment and threats, but the police did not take any action.
· In January 2007, [Mr A] became a volunteer reporter for the [Newspaper 1] newspaper where he drafted an article exposing corruption by [Mr C], but instead of publishing the article, the newspaper’s area manager shared it with [Mr C], which led to harassment and threats from [Mr C]’s supporters.
· His proposed marriage to his Sikh wife as a Hindu also caused him to be the subject of threats from a man named [Mr D] who was the [President] of [an organisation], and also his colleague [Mr E], both of whom took exception to the proposed interfaith marriage and threatened to kill him.
· [Mr A] made a police report against [Mr E] and was called into the police station a week later. [Mr C] was allegedly there to support [Mr E] and he was forced to sign a letter of compromise with [Mr E].
· In June 2007, [Mr A] was attacked with hockey sticks by [Mr C]’s men when he was going on his bike to the market. He claimed to have been beaten unconscious and was taken to hospital. In November 2007, [Mr A] moved to Mumbai for a month to stay away for a while.
· During [Mr A]’s absence, and while travelling on a bus to work in December 2007, [Mrs A] was allegedly pushed as she was getting off the bus by men [Mr A] suspected were [Mr C]’s supporters, causing her to fracture both of her legs.
· When the municipal elections were announced in June 2008 which [Mr C] was again contesting, [Mr A] was allegedly arrested and detained by police during which he claimed he was interrogated and tortured in police cell. He was released only after his mother paid INR 50,000. As a result, [Mr A] and his wife decided to apply for student visas to travel to Australia.
· Shortly after arriving in Australia, [Mr A] had to return to India again on [date] January 2009 as his mother was gravely ill. She died 2 days later. [Mr C] turned up at his mother’s funeral where he insulted and threatened him.
· 4 years later, in February 2013, [Mr A] returned to India to perform anniversary rites to honour his late mother in accordance with Hindu customs. He was accompanied on this trip by his wife and children.
· In March 2013, [Mr A] was harassed and attacked by two men while booking train tickets at the station. Following this incident, [Mr A] took his wife (who had decided to stay a while longer in India) and their children to his sister-in-law’s house.
· After [Mr A] had returned to Australia without his family, [Mr C] sent his men to molest his wife in the market, which caused her to have an asthma attack. This occurred in April 2013.
· [Mr A] and his family could not return to India as [Mr C] is politically powerful and would continue to seek revenge against him if he returned. The police could also easily make a false case against him.
The delegate refused the applicants’ protection visa application as they were not satisfied the applicant is a person in respect of whom Australia has protection obligations. The delegate accepted that [Mr C] had pressured [Mr A] to vote for him during the 2003 elections and that [Mr A] did not do so, but noted that [Mr C] won the elections anyway without [Mr A]’s vote. Given this, and in circumstances where [Mr A] was merely an ordinary member of the community without any political profile or influence, the delegate did not accept [Mr C] would have been motivated to pursue him over a 10-year period including when he returned to India in 2013 to perform Hindu rites for his late mother. When this was considered in combination with the fact that [Mr A] remained in India for 5 years from 2003 before finally leaving India with his wife on student visas, and that they had waited until they have exhausted all their migration options to remain in Australia before finally applying for protection visas in November 2015, the delegate found [Mr A]’s claimed fear of harm from [Mr C] lacked credibility. The delegate also did not accept that [Mr A] would have left his wife and children behind in India and returned to Australia alone first in 2013, if there was a genuine and ongoing threat of serious harm from [Mr C]. In any event, even if the delegate were to accept [Mr A]’s claims, the delegate found that he could have avoided the risk of harm from [Mr C] by relocating to another part of India which is a vast and populous country. The delegate also found there was no credible information to suggest that state protection would be withheld from [Mr A] and his family if they required it on their return.
Evidence before the AAT
[Mr A] maintained his claimed fear of harm from [Mr C] and his men before the AAT for the same reasons he provided to the Department. He confirmed that while he had also raised concerns in relation to [Mr D] and [Mr E] who had taken exception to his marrying his Sikh wife and threatened to harm him in 2007, he no longer held concerns in relation to those men because he has not had any further contact with those men and it has been many years since the altercations with those men occurred.
[Mr A] informed the AAT that he did have concerns in relation to the climate in India with regard to his interfaith marriage. He recounted that in the past he had been taunted at work because of his marriage (which related to his claims against [Mr D] and [Mr E]). He believed the climate of hostility had progressively worsened in India in relation to interfaith marriages. He confirmed he does not have concerns in that regard with respect to his and his wife’s immediate families.
[Mr A] informed the AAT that despite his concerns, he and his family had planned to return to Delhi in India in 2015. However, his sister had warned him not to return as some people had inquired about him. The way they talked made her suspicious as to their motives.
The AAT rejected the applicants’ review application. In the first instance, the AAT did not find [Mr A]’s evidence with respect to his claimed involvement in drafting the article exposing [Mr C]’s corruption for the [Newspaper 1] newspaper and his claimed persecution at the hands of [Mr C] to be credible. The AAT found [Mr A] failed to provide a cogent and compelling explanation for why [Mr C] would target him over many years for no particular reason other than he did not vote for him in 2003. The AAT found there was no evidence that the [Newspaper 1] newspaper existed and that [Mr A] has fabricated past incidents of harm to himself and his wife and linked them to [Mr C] for the purpose of achieving migration outcome.
As for [Mr A]’s claimed fear of harm because of his interfaith marriage to his wife, the AAT found that it was not supported by country information which suggested that reported tension in relation to interfaith marriages focused on Muslim-Hindu unions, largely driven by Hindu nationalist sentiment. Societal potential for violence generally arose where the couple’s families opposed the union, but it was accepted that the applicants’ families did not oppose their marriage and have not made threats of harm towards them in this respect. To the extent that [Mr A] had claimed to fear that he would be looked down upon and be discriminated against because of his interfaith marriage, the AAT found the claim to be generalised in nature and that any discrimination or taunts [Mr A] and his family might face do not rise to the level of serious harm amounting to persecution.
As for any claimed fear of harm arising from Sikh-Hindu tension, the AAT did not accept [Mr A]’s assertion that that he might be framed for insulting the Sikh holy book or for drug smuggling because of this tension, finding the claim to be mere speculation. Country information also indicated that a Hindu person is not subject to persecution of any kind because of the Sikh-Hindu tension, and that there was very little tension in effect at the time of the AAT’s decision.
The AAT’s review decision was quashed by the court as earlier mentioned at paragraph 4 because the AAT failed to take into account material provided by [Mr A] evidencing the existence of the [Newspaper 1] newspaper, as well as an explanation by [Mr A] as to why he was unable to provide to the AAT a copy of the article he authored at the [Newspaper 1].
Evidence before the Tribunal
In addition to all the material which was relied upon by the delegate and the AAT in making their respective decisions as outlined in summarised form above, the Tribunal now also has the below additional information which was provided by the applicants’ current legal representative by way of pre-hearing submissions (which include updated statements from both applicants and various other supporting material) and post-hearing submissions. Based on the pre-hearing submissions, the applicants’ claims have evolved somewhat and there are now three grounds based on which the applicants claimed to fear serious or significant harm in India – [Mr A]’s historical dispute with [Mr C], the dispute over ownership of [Mr A]’s family temple in [Punjab], and the applicants’ interfaith and inter-caste marriage.
Dispute with [Mr C]
22.1[Mr A] has largely maintained his claims presented before the delegate and the AAT with respect to his claimed fear of harm from [Mr C] arising from his not voting for [Mr C] at the 2003 elections and from drafting an article for the [Newspaper 1] newspaper exposing [Mr C]’s alleged corruption in political dealings. [Mr A] claimed that although [Mr C] is no longer a [politician], he remains connected to the Rashtriya Swayamsevak Sangh (‘RSS’) group and the Bharatiya Janata Party (‘BJP’), and he has posted online celebrating the election victories of the BJP.
Dispute over [Mr A]’s family temple
22.2[Mr A] claimed that his family was given some land after the 1947 partition of India, on which there is a small building that had been used as a mosque but which his family converted to and used as a Hindu temple and which his family made available to others wishing to pray. The temple was coveted by others, including neighbours who were members of the RSS/BJP, and this resulted in a campaign of harassment against his family. The dispute was resolved in his family’s favour after [Mr A]’s mother went to court and obtained a court order in 1989 recognising their ownership of the land and stymying the neighbours’ attempts to seize the temple.
22.3Following his mother’s passing, custodianship of the temple passed to [Mr A]’s brother [Mr F], who lives in a house attached to the temple.
22.4In 2020, the COVID-19 pandemic caused [Mr F] to close the temple to protect the health of his family and temple attendees. The closure of the temple reignited the dispute over its ownership, which had now expanded to involve local members of the RSS/BJP who were angered by the temple’s closure and perceived it to be a sign of disrespect to the Hindu religion. In 2022, a mob of RSS/BJP supporters, aided by the local police, forcibly entered the temple and, disregarding the 1989 court order, forced [Mr F] to hand over the keys to the temple.
22.5[Mr A] claimed the people who forcibly took over the temple have continued to harass and threaten [Mr F] and his wife and that they have tried to block [Mr F]’s access to the temple, calling on the police to arrest him instead. The same people have also threatened his sister’s husband who lives in the area. [Mr A] claimed if he returned to India, he would be regarded as a threat by the people who seized the temple and that he would be harmed to stop him from taking back the temple. It has been submitted that the people who forcibly seized the temple would be able to act with impunity because of their profile as local members of the RSS/BJP and the rise of the Hindu ultranationalist movement in India.
The applicants’ interfaith and inter-caste marriage
22.6The applicants claimed to fear harm from extremist Hindus and Sikhs who are opposed to their interfaith and inter-caste marriage. Their families were against their marriage, and although they eventually persuaded their families to allow them to marry, they were forced to have a shorter wedding ceremony and celebration than what is culturally normal and very few members of their families attended. They had to endure community gossips and other forms of harassment, which in [Mr A]’s case included threats to kill from [Mr D] and [Mr E], and in [Mrs A]’s case, the incident in which she was pushed from a bus and the incident in which she was jostled and molested by men in the market which triggered her asthma attack. The applicants claimed that not only would their interfaith and inter-caste marriage not be accepted, their risk of harm in India from Hindu and Sikh extremists, especially Hindus because of the rising influence of Hindu ultra-nationalists, would be exacerbated by the fact that they have brought their children up to respect and practise both the Sikh and Hindu religions.
During the hearing, the Tribunal and the applicants discussed their claims and the reasons for their ongoing fear of harm in India. The Tribunal also questioned the applicants about the delay in their protection visa application of almost 7 years since their first arrival in Australia despite everything that happened to them before in India, and over 2.5 years since their return to Australia in 2013 after having spent time in India for the purpose of observing the 4 year anniversary rites to commemorate the passing of [Mr A]’s mother, during which both applicants allegedly experienced harm from [Mr C]’s BJP/RSS associates. The Tribunal also questioned [Mr A] about why he or his brother [Mr F] cannot assert their rights in relation to the family temple by seeking to have the 1989 court order upheld through the judicial system.
In response to the delay in protection visa application, [Mr A]’s evidence was that they did not know about protection visas and ‘Google was not available’ in India. They first learned about protection visas when a stranger who was a migration agent, a lawyer or a law student overheard [Mr A]’s emotional phone call with his sister about the prospects of returning to India while his sons played near him in a park. Upon striking up a conversation with [Mr A] and learning about his predicament, the stranger suggested to [Mr A] that protection visas might be a possible pathway for him and his family. As for going through the Indian judicial system to have the 1989 court order in relation to their family temple upheld and enforced, [Mr A] cited futility as the reason for not pursuing that course of action, due to prevalent corruption in India and that the court process would in any event take too long.
The applicants’ legal representative made very detailed post-hearing submissions in relation to the two issues mentioned above, which the Tribunal summarises below.
Delay in protection visa application
The representative submitted that, at first blush, the story regarding how [Mr A] found out about protection visas may seem incredulous as it relies on a succession of coincidences. However, the representative submitted that coincidences do happen, and that just because one event is coincidental in relation to another, it does not mean either event is untrue or did not happen. When proper regards are had to the applicants’ circumstances leading up to their protection visa application, they provide a plausible and rational explanation for the long delay in applying for protection visas, including after their return to Australia following the 2013 visit to India.
First, in relation to [Mr A]’s evidence that ‘Google did not exist’ when they were trying to leave India, it was submitted that internet access in India was severely limited and the level of internet penetration in 2008 in India was only 4.8%,[1] compared to 72% of Australians who has access to internet in 2008.[2] Therefore, the applicants’ failure to apply for protection visas immediately upon or shortly after their first arrival in Australia should be viewed in the context of their limited access to the internet and to online information in 2008-2009.
[1] ‘Percentage of population using the internet in India from 2000 to 2017’, Statista (2025).
[2] Australian Bureau of Statistics, ‘Household Use of Information Technology, Australia, 2008-09’ (Catalogue No 8146.0, 16 December 2009).
Second, the applicants’ lack of knowledge about the existence of protection visas at the time of their arrival in Australia should be understood through the lens of India’s own domestic situation at the time, where there was an absence of refugee-related issues in Indian political discourse vis-à-vis Australia, which resulted in a general lack of awareness of asylum seekers and the act of seeking asylum itself. Unlike in Australia where refugee issues have dominated political debates for decades, concerns about refugee issues in India have only attained prominence in political discourse recently following the influxes of (largely Muslim) asylum seekers from Myanmar (following the Rohingya genocide) and Afghanistan (following the country’s fall to the Taliban in late 2021), and most of these concerns are connected to the rise of Hindu nationalism.
Third, the applicants approached an agent in India in 2008 for assistance to leave India as quickly as possible, who helped prepare and file a student visa application for the applicants with [Mrs A] as the primary applicant and [Mr A] as a dependent. Given India in 2008 was the single largest source country for student visa applications to Australia, where more than 65,000 Indian nationals were granted student visas to Australia from almost 80,000 applications,[3] it was prudent and logical for the applicants to have applied for student visas as a means of escape, and that they have done so should not be construed as undermining the credibility of their claimed fear of harm.
[3] Department of Immigration and Border Protection, ‘Student visa and temporary graduate visa programme trends 2008-09 to 2014-15’ (2015).
Furthermore, the applicants’ travel to Australia coincided with a significant shift in the demographics of Indians who applied to study in Australia, from applicants who typically hailed from larger Indian cities, were schooled predominantly in English, and applied to study undergraduate or graduate courses at tertiary institutions, to applicants who had a generally low level of English proficiency, came from smaller towns and villages, and focussed on vocational studies. This has encouraged the emergence of a ‘cottage industry’ of relatively unsophisticated migration agents in India who facilitated the preparation and making of student visa applications but who were otherwise not equipped to provide advice on alternative visa options that might be more appropriate for the applicants’ circumstances.
The applicants’ representative submitted that in the period between the applicants’ arrival in Australia and their return visit to India in 2013, the applicants maintained a low profile as they tried to adjust to life in a new and unfamiliar culture. [Mr A], for example, had to adjust from being a respected figure from a high caste in India to being a ‘nobody’ in Australia living in a share house and working at a [workplace] in a job beneath his perceived social standing. The applicants also have a very small social circle with whom they did not share their past experiences, because they perceived there was little utility in explaining their situation to people who cannot help them. When their student visas, which offered viable pathways to permanent residency in Australia, neared their expiry in 2011, the applicants applied for subclass 485 graduate visas, believing they had reasonable prospects of success because of their tertiary qualifications in India, their employment history, and the coursework that [Mrs A] undertook in Australia as the primary student visa holder.
The representative further submitted on the applicants’ behalf that at various times prior to 2015, the applicants sought advice and assistance from migration agents. With the exception of one, the agents they consulted belonged to the Indian community in Melbourne and were engaged to assist with the visa pathway that they embarked on: to help apply for onshore student visas, and subsequently subclass 485 graduate visas, and once the then Migration Review Tribunal (‘MRT’) affirmed the decision to refuse them the graduate visas, to apply for Ministerial Intervention under s 351 of the Act. It was submitted that although the applicants approached Indian migration agents through the Indian community because of matters including ease of communicating in a language other than English, the applicants were also reticent to be forthcoming about their situation in India for the simple reason that they feared they could not trust the agents they engaged not to pass information – about, for example, [Mr A]’s dispute with [Mr C] – back to India, in the belief that, if this happened and their migration applications did not succeed (requiring them to return to India), they could be exposed to an even higher likelihood of harm.
The applicants applied for review of their subclass 485 graduate visa refusal with the MRT with the assistance of a migration agent, on the understanding that they had reasonable prospects of success at review, such that the pathway they were on still remained open to them. However, when their review application failed and their subsequent request for Ministerial Intervention was also declined, the applicants applied for bridging visas E on departure grounds in the belief that all their migration options had closed, and they made preparations to return to India. The representative submitted it was against this background that [Mr A] had the telephone conversation with his sister in the park that was overheard by the stranger.
The representative submitted that the above background, viz. the applicants’ limited ability to access internet and online information in India, hailing from a country without a domestic refugee status determination process and where awareness of refugee issues is low, and socialising predominantly with compatriots in Melbourne and dealing with Indian migration agents from whom they withheld their past for fear that the information might make its way back to their persecutors in India, combine to provide a reasonable and rational explanation for why the applicants have not applied for protection visas sooner. The applicants’ delay, however, does not mean they do not have a well-founded fear of persecution; they have persistently pursued lawful status through the only visa pathway they knew and believed to be open to them – applying, like tens of thousands of other Indian nationals – for student visas, hopeful that this was the first step towards permanent residence and durable protection in Australia. The representative submitted that the applicants have generally provided a credible and consistent account of their past harm in India, and that their claims have been supported by contemporaneous evidence, including medical evidence and court documents. Accordingly, no adverse weight should be placed on, and no adverse inference as to the credibility of the applicants’ claims should be drawn from, the applicants’ delay in applying for protection visas.
Enforcement of the 1989 court order
It was submitted that attempts to enforce the 1989 court order would be a futile exercise because of three coalescing factors: (a) the extent to which the local court, through which [Mr A]’s mother previously obtained the 1989 court order and where [Mr A] or his brother [Mr F] must also lodge their injunction application under Order 39 of the Civil Procedure Act 1908 (India), is affected by corruption and politicisation,[4] [5] including from [Mr A]’s persecuting agents; (b) the expense and delay in obtaining remedies through the court system, in circumstances where there is country information indicating that more than 20% of cases in India’s district courts take over 5 years to resolve and almost 10% of cases take over 10 years to resolve,[6] and that a court’s list of cases can go untouched for many years unless a heavy bribe is paid in the registry to the concerned official;[7] and (c) the risk that that the very act of seeking to have the 1989 court order enforced could increase the likelihood that the applicants would experience harm in India, particularly when considered against the circumstances in which the temple was seized in 2022. For example, extrajudicial pressures such as extortion or vigilantism might be exerted on the applicants to dissuade them from pursuing their case.
CONSIDERATION OF CLAIMS AND EVIDENCE
[4] DFAT Country Information Report – India, Department of Foreign Affairs and Trade, XXX
[5] International Council of Jurists, ‘Judicial Independence in India: Tipping the Scale’, January 2025.
[6] Sameer Yasir, ‘A Lifelong Nightmare’: Seeking Justice in India’s Overwhelmed Courts’, The New York Times, 13 January 2024.
[7] Utkarsh Anand, ‘Supreme Court Bar to Bench: Step out in burqa to see what people think of you, The Indian Express, 18 June 2015.
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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
Corruption
Corruption is a significant problem in India. Despite ManMohan Singh, who was the Prime Minister of India between 2004 to 2014, declaring the fight against corruption as a high priority, corruption remained widespread and there were many instances of political and bureaucratic corruption, public funds embezzlement, fraudulent procurement practices, and judicial corruption.[8] The landslide victory of the BJP in 2014 was attributed among other factors to a strong focus on rooting out corruption, yet the problem of corruption persists to this day. Since 2014, India has consistently ranked low on the World Justice Project Rule of Law indices measuring absence of corruption across government.[9] Similarly, India has consistently scored 41 or less on Transparency International’s Corruption Index, with a score of 38 in 2024 (-1 from 2023) which ranked India 96 out of 180 countries for public sector corruption.[10]
[8] Chene M, ‘Overview of corruption and anti-corruption efforts in India’, U4 Anti-Corruption Resource Centre, Chr Michelsen Institute, 21 January 2009.
[9] DFAT Country Information Report – India, Department of Foreign Affairs and Trade, 10 December 2020, [2.30].
[10] Corruptions Perception Index, Transparency International.
Corruption is prevalent at all levels of government and society, particularly in sectors such as the police, the judiciary, public services and public procurement, and affects citizens in many of their interactions with institutions.[11] NGOs for example report the payment of bribes to expedite services, such as police protection, school admission, water supply, or government assistance.[12] Citizens face substantial obstacles in the pursuit of justice, including demands for bribes and difficulty getting the police to file a First Information Report, which is ‘necessary to trigger an investigation of an alleged crime.’[13] Corruption in Indian politics is also widespread, with corrupt officeholders often not prosecuted effectively despite repeated large-scale political corruption scandals.[14]
Religion, Hindu nationalism, and interfaith and inter-caste marriage
[11] '2023 Country Reports on Human Rights Practices – India', United States Department of State, 22 April 2024; 'Freedom in the World 2024 – India', Freedom House, 28 February 2024; DFAT Country Information Report – India, Department of Foreign Affairs and Trade, 29 September 2023; 'BTI 2024 Country Report – India', Bertelsmann Stiftung, 19 March 2024; 'Despite US Finding Proof of Bribery in Indian Railways, Modi Government Has Taken No Action', The Wire, 6 October 2022; 'More than 118 cases of corruption await prosecution sanction', The Hindu, 19 October 2023; 'Ashok Gehlot flags ‘rampant corruption’ in judiciary', The Hindu, 31 August 2023; ‘India is no longer pretending to care about corruption’, New Internationalist Magazine, 1 July 2024.
[12] '2023 Country Reports on Human Rights Practices – India', United States Department of State, 22 April 2024.
[13] Freedom in the World 2024 – India', Freedom House, 28 February 2024.
[14] 'BTI 2024 Country Report – India', Bertelsmann Stiftung, 19 March 2024.
Since the election of the BJP government in 2014, Hindu nationalism, sometimes known as Hindutva, roughly translated as ‘Hindu-ness’, has come to dominate the Indian political landscape.[15] A key aim of Hindu nationalism is to ‘restore’ the pre-eminence of Hindu culture-civilisation in India. The mainstreaming of Hindutva politics has led to a widespread yet unfounded narrative that Hindus in India are under threat from Muslims, and has led to new laws being passed under the BJP around citizenship and marriage which have been described as discriminatory to minorities.[16] There have been high-profile attacks by right-wing Hindu nationalists against minority religious communities and some analysts have claimed that the national government has created a permissive environment for right-wing Hindu nationalist groups to intimidate members of minority religions through violence, hate speech and otherwise. The most prominent Hindu nationalist group is the RSS and it has many affiliated organisations, including the BJP which emerged from the RSS as its political arm, and the Vishwa Hindu Parishad (VHP). When violence by Hindu nationalists occurs, it attracts significant media attention. Violent incidents are often perpetrated by extremists and fringe groups. While uncommon, when they do occur, they can lead to fatalities. Hindu nationalists enjoy a significant amount of political and social capital.[17]
[15] ‘What is Hindu nationalism and how does it relate to trouble in Leicester?’, The Guardian, 21 September 2022.
[16] Ibid.
[17] DFAT Country Information Report – India, Department of Foreign Affairs and Trade, 29 September 2023, [3.19], [3.20] and [3.28].
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. Sikhs commonly work in many industries, notably agriculture, transport and business, and there are very senior Sikhs in politics and Sikhs are well represented in the armed forces. DFAT 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, and Sikhs outside of Punjab have strong communities based around their places of worship. However, DFAT is not aware of violence or discrimination commonly occurring against Sikhs in other parts of India.[18]
[18] Ibid, [3.60], [3.61] and [3.63].
Interfaith and inter-caste marriages are legal in India and occur occasionally, however many Indian families still prefer marriages arranged within their own religion and caste. Most marriages in India are arranged marriages and the family of the prospective marriage partner will choose a spouse based on faith and caste considerations. A marriage outside this system is known as a ‘love marriage’. Those who choose to marry outside their religion or caste may experience shunning or violence from their families, but the outcome depends on the family and there is not a typical pattern of reactions. An inter-caste or interfaith marriage will not necessarily lead to violence, but it can,[19] and honour crimes in the form of acid attacks and homicides have been known to occur.[20]
[19] Ibid [3.136].
[20] Ibid, [3.138].
A detailed survey on religion conducted by Pew Research Centre in 2021 indicates that although a large number of Indians believe respecting other religions is very important to being Indian, most live religiously segregated lives. Most form friendship circles within their own religious community, and interfaith marriages are very uncommon. Level of education is a significant factor affecting views on religious segregation. Indians with a college degree are more inclined to accept people of other faiths as neighbours and are less opposed to interfaith marriages than Indians who have less education. Among Hindus in particular, attitudes toward interfaith marriages and neighbourhoods are closely tied to views on politics and national identity. Hindus who strongly favour religious segregation – those who say that all their close friends are Hindus, that it is very important to stop Hindus from marrying outside the faith and that they would not accept people of some other faiths as neighbours – are much more likely than other Hindus to take the position that it is very important to be a Hindu to be ‘truly’ Indian. They are also more likely to have voted for the BJP in the 2019 parliamentary elections.[21]
[21] ‘Religion in India: tolerance and segregation’, Pew Research Centre, 29 June 2021.
Not only are interfaith marriages rare in India, but in recent years, some couples marrying outside their communities have experienced severe consequences, including being ostracized and even killed by family members. Although the secular Special Marriage Act 1954 enables marriage to take place without reference to any faith, the requirement to give notice of the intention to marry to the Marriage Officer of the district that an interfaith couple are applying to be married and to wait 30 days while the notice is publicly displayed in a conspicuous place, poses a considerable obstacle as anyone can object to the marriage within the 30-day period, exposing the couple to scrutiny and harassment from disagreeable family members, authorities and members of the community.[22] Interfaith marriages between Hindu-Muslim couples, especially those involving a Muslim man and a Hindu woman, are derogatorily referred to by Hindu right-wing groups as ‘love jihad’, and several Indian states have passed anti-conversion laws criminalising religious conversion for the sole purpose of marriage.[23] More recently, on 27 January 2025, Uttarakhand became the first Indian state to implement the Uniform Civil Code that places private relationships under state surveillance, ensuring that all forms of interfaith relationships are regulated.[24]
[22] ‘Inside the struggle of interfaith couples in India’, Fair Planet, 28 March 2023.
[23] DFAT Country Information Report – India, Department of Foreign Affairs and Trade, 29 September 2023, [3.14]; ‘India’s interfaith couples on edge after new law’, BBC News, 15 March 2021; ‘Why interfaith marriage in India is getting dangerous’, Deutsche Welle, 1 November 2023.
[24] ‘Fencing out interfaith relationships in the New India’, The Hindu, 25 February 2025.
REASONS AND FINDINGS
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations because they either meet the definition of ‘refugee’ for the purposes of s 36(2)(a) of the Act, or they satisfy the criterion in s 36(2)(aa) of the Act for complementary protection.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity and country of nationality
The applicants provided copies of the biodata pages of their Indian passports to the Department in connection with their protection visa application, which can be found on their departmental file. The delegate accepted the copies of the passport biodata pages as evidence of the applicants’ identity and claimed citizenship of India, in the absence of evidence that the passports are bogus documents as defined in s 5(1) of the Act, and given checks of relevant departmental systems did not raise concerns that the applicants have provided false identity.
Having considered the aforementioned identity documentation on the applicants’ departmental file, and on the basis that the applicants provided the original of their passports for inspection at the commencement of the hearing, the Tribunal is also satisfied as to the applicants’ claimed identity and citizenship of India.
The Tribunal finds the applicants’ country of nationality and receiving country for the purposes of s 36(2)(a) and s 36(2)(aa) is India.
Credibility and findings of fact
Section 367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of any claim not raised or evidence not presented before the primary decision to refuse a protection visa was made, if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented, before the primary decision was made. As the applicants have now raised claims and presented evidence relating to seizure of [Mr A]’s family temple which were not raised or presented before the primary decision refusing the protection visas was made, the Tribunal must determine whether s 367A applies requiring the Tribunal to draw an unfavourable inference to the credibility of these new claims and evidence.
In the present case, the Tribunal agrees with the submissions made by the applicants’ representative. The Tribunal accepts that even though the dispute over ownership of the temple stretches back over 30 years, the applicants considered that no protection claims arose in relation to the dispute because they reasonably believed the 1989 court order provided an enduring solution to the dispute. The Tribunal accepts that the protection claims only arose since 2022 after the [applicant’s] family temple was forcibly seized in disregard of the 1989 court order, and that the incident stemmed from [Mr A]’s brother [Mr F]’s earlier closure of the temple during the COVID-19 pandemic to protect the health of his family and temple attendees, which the local RSS/BJP members perceived to be a sign of disrespect to the Hindu religion.
Accordingly, although the applicants omitted to raise claims and present evidence in relation to the seizure of [Mr A]’s family temple before the delegate made the primary decision, the Tribunal finds that no adverse inference should be drawn by the Tribunal in relation to the credibility of the claims and evidence for that reason alone. Rather, the credibility of the claims and evidence about the seizure of the [family] temple (along with the applicants’ other claims and evidence) should be assessed on their own merit, pursuant to the normal process of credibility assessment. In this regard, the Tribunal is conscious of the need to take a reasonable approach when making findings of credibility, noting the cautionary comment made by Foster J in Guo v MIEA (1996) 64 FCR 151 at [94]:
“…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”
The Tribunal also notes the United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 2019) states at paragraph [196] that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” However, the Handbook also states at paragraph [203] that:
“The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”
The Tribunal is also aware that if it makes an adverse finding in relation to a material claim but is unable to make a finding with confidence, that it must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal has carefully considered all the claims and evidence presented by the applicants. The Tribunal notes the applicants have consistently and steadfastly maintained the same claims throughout the protection visa application and review processes. However, like the delegate and the AAT, the Tribunal has doubts about [Mr A]’s claims with respect to [Mr C]’s adverse interest in him arising from [Mr A] not voting for him at the 2003 municipal election. The Tribunal does not accept [Mr A]’s oral evidence that [Mr C] knew [Mr A] did not vote for him in the election merely because [Mr A] had asked him some questions when he came door-knocking during the election campaign. Nor does the Tribunal accept that [Mr C] began a personal vendetta against [Mr A] because he had inferred from [Mr A]’s questions during the door-knocking campaign and from [Mr A]’s educational background that [Mr A] influenced others in the community not to vote for him, as this is speculative rather than based on reasonably probative evidence.
Moreover, given the nature of election is such that there would have been some people who voted for [Mr C] and the BJP whilst others voted for other candidates representing other political parties, it would be absurd to suggest that [Mr C] targeted in retribution every person in the municipality who he knew or suspected did not vote for him, just as it would be absurd to suggest that [Mr C] singled out [Mr A] for harassment from all who did not vote for him despite [Mr A] not being politically active and not having a political profile that would particularly cause him to come to [Mr C]’s attention. Accordingly, the Tribunal does not find [Mr A]’s claimed harassment from [Mr C] because of the 2003 municipal election credible.
However, the Tribunal accepts [Mr A] worked as a volunteer reporter for the [Newspaper 1] newspaper from January 2007 having regard to his press card, a copy of which is on the applicants’ departmental file and also provided in their pre-hearing submissions. Unlike the AAT, the Tribunal does not find the fact that [Mr A] has been unable to produce a copy of the article he allegedly drafted exposing [Mr C]’s corruption to be fatal to his claims in and of itself, even if his omission to keep for himself a copy of the draft article, which is of central importance to his claims, raises some questions about his credibility. In the present case, having regard to country information that the problem of endemic corruption in India stretches back decades, the Tribunal considers it is entirely conceivable that [Mr C] was involved in some form of corrupt conduct, such as facilitation and/or receipt of bribery, and it is equally conceivable that [Mr A] drafted an article for the [Newspaper 1] to expose [Mr C]’s corruption. Based on this, the Tribunal is prepared to give [Mr A] the benefit of the doubt despite his inability to produce a copy of the said article and accept that he did draft the article as claimed.
Moreover, for the same reasons that the Tribunal considers it is possible that [Mr A] drafted an article to expose [Mr C]’s corruption, the Tribunal considers it is possible that the [Newspaper 1] newspaper’s area manager to whom [Mr A] gave the draft article could have shared the article with [Mr C] as claimed, because the area manager could have been bribed by politicians such as [Mr C] to monitor journalistic activities perceived to be critical of the politicians concerned. The Tribunal considers [Mr A]’s drafting and attempted publication of the article critical of (and potentially politically damaging to) [Mr C] was more likely to have attracted [Mr C]’s ire than his not voting for [Mr C] in 2003, and a personal vendetta against [Mr A] was more likely in such circumstances.
Accordingly, whilst the Tribunal does not accept [Mr A]’s claims in relation to his experiences of harm arising from the 2003 election, the Tribunal accepts it is possible that his claims with respect to the draft article and his subsequent harassment from [Mr C] and his associates, such as his beating by men with hockey sticks, might be true.
Insofar as the applicants’ claims relating to their interfaith marriage are concerned, including, for example, [Mr A]’s claims of being harassed and threatened by [Mr D] and [Mr E] and [Mrs A]’s claims of being jostled in the market, available country information indicates that most of the problems associated with interfaith marriages pertain to Hindu-Muslim unions rather than Hindu-Sikh unions. Nevertheless, given the low level of interfaith marriages in India generally and the prevailing societal attitude in favour of religious segregation, the Tribunal accepts the applicants’ claimed experiences of discriminatory treatment and harassment to be true.
Finally, the Tribunal has considered the applicants’ latest claims with respect to the dispute over ownership of [Mr A’s] family temple and the 2022 forced seizure of the temple by local BJP/RSS members. On the basis of the copies of the 1989 court documents provided and on the basis of the screengrabs of the video showing the [family] temple being surrounded by a mob of people, and having regard to country information about the rise of Hindu ultranationalist ideology embraced by BJP/RSS after BJP came into power in 2014, the Tribunal accepts the dispute did occur and that the [family] temple has been taken over as claimed.
Assessment of refugee status
To be eligible for the grant of protection visas as refugees, the applicants must have a well-founded fear of persecution in India, and owing to that fear, are unwilling and unable to avail themselves of the protection of India. This requires the Tribunal to be satisfied that if the applicants returned to India, there is a real chance that they would be seriously harmed in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
‘Real chance’ is one that is not remote, 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.
The Tribunal has considered, and accepts, the applicants’ representative’s submissions that the applicants’ return trips to India and their delay in applying for protection visas should not be relied on to find that the applicants do not have a genuine fear of returning to India. Although the manner in which the applicants allegedly found out about protection visas does seem incredulous, the Tribunal acknowledges it does not mean that it is so fanciful and far-fetched that it cannot possibly be true. The Tribunal also finds the explanation provided for why the applicants persistently pursued ‘regular’ (i.e. migration) visa pathway until late 2015 to be compelling and persuasive. Therefore, the Tribunal does not place any weight on the return trips to India and the protection visa application delay, and will focus its refugee status assessment based on the applicants’ substantive claims.
Turning first to the applicants’ claimed fear of harm from [Mr C] and his associates, for the reasons discussed earlier the Tribunal accepts the applicants, in particular [Mr A], suffered harm in the past because of the article that he drafted whilst working as a volunteer reporter at the [Newspaper 1] newspaper exposing corruption from [Mr C]. The Tribunal also acknowledges that [Mr C] and his associates targeted [Mr A] intermittently between 2007 and early 2009, and again 2013 when he and his wife returned to India to perform the 4 year anniversary rites for his late mother. However, 12 more years have passed since, and the Tribunal does not believe that given this lengthy passage of time, there is still a real chance that the applicants, especially [Mr A], would face serious harm from [Mr C] because of [Mr A]’s anti-corruption stance and his previous attempt to expose [Mr C]’s corruption.
The Tribunal also does not believe that the applicants face a real chance of serious harm in the reasonably foreseeable future for reason of their interfaith and inter-caste marriage alone. Although they have experienced harassment and discrimination in the past, the applicants’ evidence does not suggest that the harassment and discrimination they experienced was of such severity that it amounted to serious harm or that it demonstrated a real chance of serious future harm. To the extent that [Mr A] was threatened with death by [Mr D] and [Mr E], the Tribunal finds on the evidence available, and without any intention to trivialise the matter, that the threats to kill were not genuine but were meant to intimidate [Mr A] into abandoning his impending marriage to [Mrs A].
Moreover, although country information indicates that interfaith marriage can create serious problems for the couple and the consequences can range from ostracism to honour killing, and there is evidence of increasing intolerance towards interfaith marriages as demonstrated by legislation criminalising religious conversion for the purpose of marriage or legislation that directly puts private relationships under state surveillance, the incidents of serious harm reported have almost universally related to Hindu-Muslim couples rather than other types of interfaith coupling, such as Hindu-Sikh like the applicants.
Notwithstanding this, when the applicants’ interfaith and inter-caste marriage is viewed in the context of the forced seizure of [Mr A’s] family temple by local BJP/RSS members against the broader backdrop of rising Hindu nationalism since BJP came into power in 2014, the Tribunal finds that it takes on a different dimension. The local BJP/RSS members, who espouse the Hindu nationalist ideology of Hindutva, forcibly took over the [family] temple on the pretext that the [family] are not ‘Hindu enough’ and are ‘disrespectful to Hindus’ just because [Mr A]’s brother [Mr F] closed the temple during the covid-19 pandemic, despite legitimate health and safety concerns for doing so. The Tribunal considers that the same people could also conceivably target the applicants because of their Hindu-Sikh interfaith marriage, and/or use this as the pretext to inflame Hindu nationalist sentiment and direct community hostility towards the applicants as a means of preventing [Mr A], as the oldest child in the [family], from attempting to reclaim the temple.
0
6
0