2449576 (Refugee)
[2025] ARTA 1430
•9 May 2025
2449576 (REFUGEE) [2025] ARTA 1430 (9 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2449576
Tribunal:General Member M Brereton
Date:9 May 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.
Statement made on 09 May 2025 at 12:15pm
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit and Family Court remittal – particular social group – suspected of links to activities – leaving a criminal gang – political opinion – Sikh independence supporter – fear of detention – fear of killing – police encounter killings – reasonableness of internal relocation – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2CASES
SZATV v MIAC (2007) 233 CLR 18
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 July 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of India, is currently held in immigration detention. He applied for the visa on 14 June 2023. The delegate refused to grant the visa on the basis that they rejected the applicant’s claims in their entirety.
The applicant appealed the delegate’s decision. The applicant appeared at a hearing before the then Administrative Appeals Tribunal (the AAT) on 4 August 2023 (the first Tribunal). He was assisted by a legal representative at that hearing. On 9 August 2023, the first Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant sought judicial review of that decision in the Federal Circuit and Family Court of Australia (the Court). On 20 November 2024, the Court remitted the matter for reconsideration.
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. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 26 March 2025 and 29 April 2025, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was not represented in relation to the review.
BACKGROUND
Evidence before the Department
Protection visa application
In his application for the protection visa the applicant claims:
I always remained under the threat of gangsters in India. In the very young age as a teen, I was involved in with few people like [two names] and found myself on the other side of the law. Soon I realised that this is not what I wanted to do in my life. I talked to my parents and started living a low profile life. These Gangsters were always trying to poach me back in their gangs. I remained scared and led a low profile life, hoping that one day all will be fine. There was always a threat of getting killed as I was not bowing to their demands and there was always a threat of persecution because I was part of them once.
When I got married I came to Australia with my Wife. I thought that this would be the change I needed and started a new life in Australia.
The police is corrupt in my country. If I would have gone to them to seek help they would have persecuted me and would have put me in the jail or would have killed me in an encounter. Moreover, as the gangsters are loosing ground they are making headways to find and recruit people to be in their gangs and people like me are their prime targets because I was involved with them in some stage of my life. No matter its was teen age and I did not do anything wrong in those days but they always think that I am their part, which I am not.
I will be killed by the police in an Encounter. This will happen because of my initial connections with the Gangsters. I will be persecuted in false cases and would be jailed for life or killed. The police thinks that I am still involved in the gangster wars and fund them from here in Australia. Specially after the recent murder of [a local personality], they are after the gangsters. One of the person who was my friend when I was Kid, was also killed recently in February 2023. His name was [Friend A].
I will be persecuted or killed in false cases and the Police and Government is involved in this because they are under pressure from international governments to get rid of Gang wars and they want to show that they are doing their part. People like me are their obvious targets as I was involved in the gangs at some stage.
I have been informed by friends that the police thinks that I fund the gangs from foreign land. This is not true and I never used money to finance any gang. They will not protect me as they are the one who are after me. Moreover the Gangsters will be after my property and farms as they believe this will pressurise me to join their gangs.
No I do not think so, as the police can come to any place and they will persecute me.
On 29 June 2023, the Department wrote to the applicant pursuant to s 56 of the Act and invited him to provide further information, including further information relating to persons he had named in his application. He did not respond to this invitation. The Department did not invite him to an interview.
Summary of the delegate’s decision
The delegate considered that the applicant’s brief claims and their lack of response to the questions and concerns raised do not provide a sufficient basis to be satisfied that the applicant’s claims are genuine. The delegate found that:
… considered individually and cumulatively, due to the lack of detail in their application and evidence to support their claims, and their failure to provide further information or comment, I am not satisfied that the applicant was involved with a gang(s) or that they are perceived by the authorities to be involved with them. In light of all of these concerns, I reject the applicant’s claims in their entirety.
Evidence before the Tribunal
The first Tribunal
The current Tribunal has before it the evidence filed with the first Tribunal. In addition to the evidence before the Department, the applicant and his then legal representative filed:
a.a legal submission;
b.six affidavits from persons purporting to know the applicant and corroborating his claimed circumstances in India; and
c.a video link to what appears to be a media report.
The Tribunal file also contains an audio recording of the hearing conducted on 4 August 2023.
The present Tribunal
The present Tribunal invited the applicant to attend a hearing at 2:00 PM on 13 February 2025. On that day the applicant appeared but his nominated legal representative did not. The Tribunal asked the applicant if he was still represented by that representative, and he said no. He said that he had approval for legal assistance from [Agency 1] and showed the Tribunal a letter which appeared to confirm this. The Tribunal asked if [Agency 1] had been advised of the hearing and the applicant said no. The applicant appeared to be confused, quite distressed, and unwell. In the circumstances, the Tribunal decided to postpone the hearing and contact [Agency 1].
Following the postponement, the Tribunal contacted [Agency 1] to confirm if they are assisting the applicant. On 24 February 2025, [Agency 1] responded that they are not representing the applicant.
On 27 February 2025, the Tribunal listed the matter for a resumed hearing on 11 March 2025 at 2:00 PM. On the same day the applicant’s former legal representative advised that they are no longer representing the applicant. On 3 March 2025, the Tribunal advised the former representative that the applicant needs to confirm the withdrawal and asked the former representative to obtain the applicant’s written confirmation.
On the morning of 11 March 2025, the Immigration Detention Centre advised the Tribunal that the applicant was unwell and did not wish to attend the hearing scheduled for that day. The Tribunal has noted above that the applicant presented on the previous listed hearing date as confused, quite distressed, and unwell. The Tribunal also notes that the applicant has a personal history of drug addiction. In the circumstances, the Tribunal decided to postpone the hearing for a further brief period and sent further correspondence to the applicant asking that he confirm that his former representative is no longer acting and to confirm whether [Agency 1] is now acting for him.
The Tribunal listed the matter for a resumed hearing on 26 March 2025 at 2:00 PM. On 24 March 2025, the applicant called the Tribunal and said he is now being represented by [Agency 2] and asked for an adjournment. On 25 March 2025, the Tribunal contacted [Agency 2] and was advised that they are not acting for the applicant. The Tribunal decided not to grant an adjournment.
The first hearing
The applicant attended the hearing on 26 March 2025 (the first hearing). The Tribunal asked the applicant if he was being represented by anyone. He said that he has spoken to representatives, but no one was able to help him at the hearing. He said that he has some submissions that he has just emailed to the Tribunal. The Tribunal asked if he had been given any assistance to prepare these submissions. He said that he had done these himself. The applicant’s submissions are two media reports relating to persons who had returned to India from overseas and who were arrested and detained on suspicion of links to other persons of interest.
Following the first hearing, the Tribunal invited the applicant to attend a further hearing on 29 April 2025 (the second hearing).
The applicant’s evidence at the hearings is set out and considered below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is the applicant’s fear of harm from the Indian authorities because of his actual and imputed involvement with gangsters and crime in India. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity
The applicant claims to be a citizen of India. He has provided the Department with a copy of his Indian passport. He does not claim to have any right to enter or reside in any other country. The Tribunal finds that he is a national of India and that India is the country of reference and receiving country for the purposes of this review.
At the start of the first hearing the Tribunal asked the applicant if he is known by any other names in India. He told the Tribunal that his family nickname is ‘[Name 1]’ and this is the name he was generally known as by family, friends, and other persons in his home area.
Claims
The Tribunal acknowledges the difficulties faced by the applicant. He speaks little English, has a history of substance abuse, is in immigration detention, and is no longer represented by an agent or legal practitioner. The Tribunal has kept this profile in mind when considering the applicant’s claims and evidence.
The applicant’s claim is said to arise from his relationship with a person ([Friend A]) who was a notorious gang member in the applicant’s region of India. [Friend A] is now deceased. The applicant believes that [Friend A] was the victim of a “police encounter” – a form of extra-judicial killing.
At the first hearing the applicant told the Tribunal that he was not part of [Friend A’s] gang but the two were friends at school and before the applicant left India. He told the Tribunal that he (the applicant) was never arrested, detained, threatened, accused, or subjected to any adverse interest or interactions with the Indian police before he came to Australia.
The Tribunal asked the applicant why he believes the police will be looking for him if he returns to India. He said that he used to speak to [Friend A] by telephone and sometimes sent money if [Friend A] needed this. He said he did not send much and thought it was less than AUD$[amount] in total, sent on two or three occasions. The Tribunal asked why he sent money, and he said that [Friend A] said he needed it for clothing or food.
The applicant referred to a media article he provided the first Tribunal. The Tribunal has a copy of this article which states in summary that [Friend A] and others were implicated in purchasing weapons. The article refers to a person known as ‘[Name 1]’ who is said to be living in Australia, and who is suspected of financing the weapons. The applicant said that this is him. The Tribunal gives weight to the applicant’s earlier evidence that he is known within his local area as ‘[Name 1]’. The Tribunal finds that the article provides some support to the applicant’s claim that he is known or suspected to have been an associate of [Friend A].
The applicant said that when he was in Australia, [Friend A] would sometimes call him and ask him to help arrange telephone conferences with other people. The applicant did not know why [Friend A] did this but thought that maybe [Friend A’s] telephone could not call those numbers, or maybe [Friend A] was worried that he was being monitored by the authorities. The Tribunal asked the applicant what sorts of things were discussed in the telephone calls. He said that he did not always listen in and usually only joined in if he knew the other parties. He said that these were often social calls – talking about things they had done in the past and what mutual friends were doing. The Tribunal asked if he had ever heard [Friend A] discussing criminal activities, money transfers, weapons, or similar issues. The applicant said that he had not heard such things when he was on the telephone.
The Tribunal asked how the police got his name. He said that [Friend A] may have told them. The Tribunal put to him that if [Friend A] was a friend, why would he implicate the applicant? The applicant said that he did not know how his name was known. It may have been obtained by torture, or the authorities may have obtained it through surveillance and monitoring against [Friend A].
The applicant’s fear is based partly on speculation, but the Tribunal does note the media article which refers to a person with the same nickname. The applicant’s nickname, he says, is known to friends and family. It is not implausible that if the applicant’s friend [Friend A] were the subject of law enforcement investigations, his link with a person in Australia may have become known. The Tribunal will give the applicant the benefit of the doubt and has proceeded on the basis that the Australian person named in the media article is the applicant, and that the applicant may be suspected by the local police of having links to [Friend A].
The Australian Department of Foreign Affairs and Trade (DFAT) reports that “‘encounter killing’ or simply ‘encounters’ are unofficial terms used in India to refer to a killing in which police ‘encounter’ a suspect, shoot them to death and then claim that there was a gun fight or that they acted in self-defence. Critics claim that these are untrue excuses used to justify killings. The National Human Rights Commission (NHRC) collects monthly statistics on these kinds of killings. There were six such cases registered with the Commission in January 2022, for example. … Encounter killings are especially associated with areas of conflict or insurgency, but they have been recorded elsewhere, for example in relation to anti-gang activity or other routine law enforcement activities. … However, the practice is not secret, and incidents are commonly covered in the media.”[1]
[1] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report India’, 29 September 2023, at [4.2]-[4.3].
The evidence before the Tribunal indicates that [Friend A] was killed in February 2023. The applicant believes this was a police encounter killing. He told the Tribunal that [Friend A] and two accomplices were found shot dead in a vehicle, but there were no bullet holes through the doors or windows. The applicant believes this was a killing orchestrated by the police. The Tribunal accepts that the applicant may believe this to be the case but there is no other evidence identifying the perpetrators. It is equally possible that [Friend A] and his accomplices were killed by rival gang members, or by other persons unknown. However, having regard to the DFAT information cited earlier, the Tribunal cannot discount the possibility that this was an extra-judicial killing. The Tribunal accepts that the applicant was a friend of [Friend A]. The Tribunal accepts that [Friend A] was killed in a violent encounter in India in February 2023. The Tribunal accepts that there is at least a chance that this encounter was at the hands of the local police.
The Tribunal accepts that the applicant may be suspected of having been involved with, or an associate of, [Friend A]. He has provided affidavits from family members and friends in India who all claim that the police have expressed an interest in speaking with the applicant about [Friend A]. His father claims that he has been taken to the police station frequently, subjected to physical violence and harassment, and told to tell the applicant to come home. His father claims that the police have threatened to harm the applicant when he does return. The Tribunal is troubled by the affidavits. The affidavits are largely identical except for certain personal identifiers and experiences. The affidavits do not read like the personal evidence of the witnesses; rather, they appear to be a block of pre-written text that has been signed by each witness. Nevertheless, given the applicant’s circumstances and the difficulties he has faced in bringing his matter before the Tribunal as an unrepresented applicant, the Tribunal is prepared to accept the general propositions in the affidavits. That is, the Tribunal accepts that the applicant is a person of some interest to the local police in his home area and the police have used some heavy-handed methods in dealing with his friends and family there.
The Tribunal also notes the applicant’s submission provided at the first hearing, which refers to two separate cases which, he submits, have similarities with his own. The first is an article from the British Broadcasting Commission which reports that an Indian man living in [Country 1] had returned to the Punjab on a visit in 2017. He disappeared from the streets and his family believed he had been kidnapped. They later found that he has been taken by the police and held for the last seven years on various charges. These include being involved in gang activities, funding violence, and funding terrorism. There have been “hundreds of hearings”, but no credible evidence has ever been presented. This person was acquitted of most charges in 2024, but new charges and hearings have been commenced and he remains in custody. The second article refers to a person who returned to the Punjab from [Country 2] for a visit in 2016 and was arrested. He has been charged with various terrorist and organised crime offences, some of which appear to be alleged from [social media] involvement. As at 2022 (the date of the article) he had not been brought to trial and was prevented from leaving India and returning to [Country 2].
The Tribunal asked the applicant why he thought the police will look for him and chase him anywhere and everywhere in India. He said that he is important to them. He said that these are big influential people, and they will end up finding him. The Tribunal had earlier asked the applicant if he had been asked any questions by the Australian police regarding his gang and weapons dealing allegations. He said no. The Tribunal now asked the applicant why, if he is as important and notorious as he has claimed, the Indian police do not seem to have tried to liaise with the police here. The applicant said that maybe the police do not have enough evidence to be able to speak to the Australian police, but they will still pursue him if he returns. The Tribunal asked why he believes the police are so determined to find and harm him. He said that they will feel that he helped [Friend A] and that maybe they will believe they can extract more information from him.
The second hearing
After the first hearing the Tribunal identified further information and questions relevant to the applicant’s fear of the police tracking him down in India. The Tribunal invited the applicant to the second hearing to discuss the information and respond to questions.
The Tribunal asked the applicant to confirm that he fears returning to India because of the police and what they may do to him. He said that this is the main reason, but he has also been a supporter of the Sikh independence movement, the Khalistan, and this may be a problem as well. The Tribunal asked what type of support he meant, and he said that he and [Friend A] had attended rallies. The Tribunal asked if he has ever been arrested, questioned, and interviewed because of his support for the Khalistan, or for any other reason or reasons linked to Sikh independence. He said that he had not.
The Tribunal asked again what the applicant fears if he returns, and he said that it will be the same as what happened with [Friend A]. The Tribunal asked who he fears, and he said it is the police. The Tribunal asked whether he meant the Punjab Police and he said yes. The Tribunal asked if he knew which area of the Punjab Police is looking for him and he said he did not know for sure. He said that all the police areas work together, so it might be the Criminal Investigation Agency and the local police working jointly.
The Tribunal put to him that the incident with [Friend A] occurred in the Punjab. The Tribunal asked why the Punjab Police will pursue him outside the Punjab. He said that there have been incidents where people have been picked up in other states and killed. He said that the other police will cooperate.
The Tribunal told the applicant that it has looked at country information about extradition processes in India. This includes the DFAT assessment that:
… if a person of interest is being sought by another state, the states would work together in securing the arrest and extradition of that person, however there is no formal state extradition requirement. DFAT understands state police do not have sophisticated online databases to track offenders; such work may be done manually, but details are not clear, and, in practice, it would probably depend on the individual police officers and police forces involved. In spite of that, in general, DFAT understands that there is a good degree of cooperation between state police forces and interstate arrest and extradition may be possible.[2]
[2] DFAT, at [5.8].
The applicant said that this is correct, because the police will all work together and share information. He said that this is because of the Unlawful Activities Prevention Act (UAPA).[3]
[3] The Unlawful Activities (Prevention) Act 1967 extends to the whole of India. It contains special procedures to deal with “unlawful associations” which may include terrorism or extremist violence. It has also been used against journalists and others speaking out against the government.
The Tribunal referred to other information about the process of interstate extradition in India.[4] It put to the applicant that if the Punjabi Police want to extradite him from another state, they will have to raise a case and present it to a magistrate in the other state. The magistrate will question the police and the subject of the application and will determine if there are grounds for extradition. The Tribunal said that this means it will not be the police making an arbitrary decision; they will need to have evidence to satisfy an independent judicial officer. The applicant said that the reality is that they arrest someone in another place, kill them, then say they were killed in a different place. He said that he can prove that the report of how [Friend A] was killed is false, because [Friend A] was shot in the side, but the report said he was shot in the back. He said that this is what happens; incidents with the police occur but the reports show them in different places or different things.
[4] Raj, Hukam, ‘Extradition Law in India’ 26 November 2023, available at SSRN: or >
The Tribunal put to the applicant that the reports of such killings usually involve high profile persons who are suspected as terrorists, extremists, or political protestors. The Tribunal asked the applicant what it is about him that will put him at this risk. He said that people are put into prison and stay there. He said he does not know exactly why the police suspect him, but they keep harassing his family and he has a genuine fear. He said that this is the reason why he continues to wait in immigration detention and not just go home.
The applicant presented as honestly fearful, and the Tribunal accepts that the applicant has a high-level subjective fear of the police. The applicant fears that the police are determined to locate and harm him and that this will be either through legal means (extradition) or illegal means (police encounter killing). His evidence is that it does not matter whether he had any involvement with [Friend A] or whether the police have any evidence of this. He is fearful that the police will concoct whatever is necessary to find and harm him.
The Tribunal has carefully considered all the above. While the applicant’s evidence is not corroborated strongly, neither is there anything before the Tribunal that casts sufficient doubt to discount it. The Tribunal takes into account that the applicant comes from a small village in a rural part of the Punjab, and it is plausible that his return there after all this time may generate comment and interest. It is plausible that the local police will become aware of his return and at the very least, seek to locate and question him. The information before the Tribunal does support the applicant’s fear that the police may use significant force and coercion if he is questioned.
Having regard to all the above, the Tribunal has come to the view that there is a small, but none the less real chance that the applicant will face significant physical ill treatment and/or significant harassment by the local police should he return to his home area and come to notice. The Tribunal notes that the home area is said to be a small community, and the Tribunal considers there is a real chance that the applicant’s return will be noticed and remarked upon. The Tribunal also takes into account its finding that the local police are interested in the applicant and have been questioning his family. The Tribunal finds that there is a real chance that the applicant will come to the attention of the local police if he returns to his home. The Tribunal finds that he will be subject to adverse interest and harm at the hands of the police. The Tribunal finds that this will include, comprise, or amount to conduct which is serious harm as contemplated by the Act. The Tribunal finds that this serious harm will be inflicted on the applicant for the essential and significant reason of his membership of a particular social group, being a returnee who is suspected of links to gangs and gang activities. The Tribunal finds that this will be systematic and discriminatory, and that the applicant therefore has a well-founded fear of persecution should he return to his home area.
The Tribunal has then considered whether the applicant will face this harm in all areas of the receiving country (s 5J(1)(c)). At the first hearing, the Tribunal asked the applicant whether he would be able to go to another part of India to avoid harm. The applicant said that he will need his identity card and without that, you cannot live in India. He said that this will be used by the authorities to find him. The Tribunal put to the applicant that it has looked at information concerning the identity card on the relevant Indian department’s website.[5] It said that according to this information, the police are not allowed to use the identity cards or access the details except in exceptional and controlled circumstances. The applicant responded that the Indian courts are corrupt, and the police will do whatever they want. The Tribunal put to the applicant that according to the website, the applicant can apply for the card from Australia and change his location details. The website states that the card cannot be used by the police to track someone. The applicant restated that the police would track him down anywhere in India.
[5] The identity card is known as the Aadhaar. The relevant government website is the website of the Unique Identification Authority of India (UIDAI), at Aadhaar Myth Busters - Unique Identification Authority of India | Government of India.
Looked at objectively, the applicant’s evidence does not indicate that he has been involved in violent gang activities himself, extremist or separatist violence, or that he is being sought on a national or international level, including for any real or imputed support of the Khalistan movement. The Tribunal is not satisfied on the evidence before it that the applicant will be flagged on any immigration database or national police system as a person of interest beyond the Punjab. The Tribunal is not satisfied that any police or security organisation outside of the Punjab has, or will have, any interest in him for any reason should he return to India. While the Tribunal accepts the possibility that the local police in his home area may have an adverse interest in him and may become aware of his presence if he returns, the Tribunal is not satisfied that the local police would pursue him beyond the Punjab, or that he will be tracked down and subjected to any legal, quasi legal, or illegal ramifications.
There is no other information before the Tribunal suggesting that the applicant will be tracked and located anywhere and everywhere in India by any other person or persons, because of his links to [Friend A], any real or imputed political opinion, or for any other reason or reasons. The applicant has not raised, and the information before the Tribunal does not suggest, that there are any other reasons he will face harm if he was to return to India and live in an area away from his former home area. The Tribunal accepts that the applicant has an honest, albeit subjective, fear that he will be tracked and arrested but the applicant’s profile is not that of an extremist, separatist, or any other high-level person of interest who is of national interest. The Tribunal finds that the real chance of serious harm faced by the applicant does not extend to all areas of India.
The applicant does not claim to fear persecution or harm for any other reason or reasons should he return to India. The Tribunal finds that the applicant does not face a real chance of harm for any other reason or reasons, should he return to India.
Having regard to the above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any reason or reasons, now or in the reasonably foreseeable future, should he return to India. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
COMPLEMENTARY PROTECTION
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) provides that a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
Section 36 (2A) provides that a non-citizen will suffer significant harm if:
a.the non-citizen will be arbitrarily deprived of his or her life; or
b.the death penalty will be carried out on the non-citizen; or
c.the non-citizen will be subjected to torture; or
d.the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
e.the non-citizen will be subjected to degrading treatment or punishment.
However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
a.it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
b.the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
c.the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally: (s 36(2B).
The Tribunal has found above that the applicant faces a real chance of serious harm if he returns to his home area of India. For the same reasons as given above, the Tribunal is satisfied that the applicant faces a real risk of harm from the local police if he returns to his home area. The Tribunal is satisfied that this harm may include the intentional infliction of cruel, inhuman, or degrading treatment or punishment and will be significant harm as defined in s 36(2A).
The Tribunal has also found above that the applicant does not face a real chance of harm if he returns to another part of India, away from his home area. For the same reasons, as a starting proposition, there appears to be no real risk that he will face significant harm if he returns to another part of India. However, the complementary protection criterion in s 36(2)(aa) expressly incorporates a relocation qualification in s 36(2B)(a), which provides that there is taken not to be a real risk that a person will suffer significant harm if it would be reasonable for them to relocate to an area of the country where there would not be a risk of such harm. What is reasonable, in the sense of practicable, must depend upon the particular circumstances of the applicant and the impact upon that person of relocating within their country.[6] The Tribunal has considered whether it will be reasonable for the applicant to relocate.
[6] SZATV v MIAC (2007) 233 CLR 18 at [24].
The Tribunal asked the applicant whether he could relocate to another part of India. He said that he fears the police will track him down through his identity card. As discussed above, the Tribunal does not accept that the Indian police will do so given his low-level profile and the Tribunal does not accept that the applicant will be located and harmed by the Punjabi Police, or any other police or security agency, if he does relocate.
The applicant was born and raised in the Punjab. He told the Tribunal that he has only ever lived with his family in the Punjab, and he has not lived apart from them there. He completed schooling to [grade] equivalent but told the Tribunal that he has never held a formal job in India. He said that he has worked in farming and on fields. The applicant said that he has not completed any education, workplace qualifications, or obtained any workplace experience in Australia.
DFAT indicates that there are no legal barriers to internal relocation and India has a long history of internal migration. Many people have travelled to large cities in search of employment. DFAT does indicate that most relocation is intra-state, but it does not indicate that interstate relocation is not possible. According to the World Bank, factors that may limit interstate relocation include non-portability of welfare entitlements (some social welfare programs are only available within a state or require an established residence), preferential treatment of former students from local educational institutions, and domicile requirements for state government jobs. A 2014 article from the Migration Policy Institute lists lack of education, access to financial services and the predominance of the agricultural sector as other factors.[7]
Family networks and stability
[7] DFAT, at [5.19]-[5.21].
The applicant does not have a wife or children. He is not responsible for any other dependents. However, he told the Tribunal that he only has family in the Punjab and that is all he has in the world. The applicant told the Tribunal that he does not have any extended family networks anywhere else in India. The Tribunal asked if his family will be able to maintain contact with him, including visits, if he returned to another part of India. He said that they could not do so because the police will find him.
The applicant told the Tribunal that he speaks Punjabi. He said that he can speak and understand some Hindi (he thinks about 20%) but he cannot read or write it.
The Tribunal put to the applicant that Sikh people have established themselves outside of the Punjab, including in large cities. The Tribunal put to the applicant that Delhi, for example, has a Sikh population.[8] The applicant responded that “my everything is in the Punjab. My family is there, and I only speak that language”. The Tribunal asked whether he thought he could live outside the Punjab and he said that the police will find him.
[8] DFAT, at [3.60].
The Tribunal accepts that the applicant may be separated from his family if he does relocate. The Tribunal accepts that because of his fear of the police, he may be reluctant to establish contact with his family. The Tribunal accepts that he may therefore remain separated from his family. The Tribunal also accepts that if he relocates outside the Punjab, he may be living in an unfamiliar area as a stranger without family or tribal networks, and in an area where he does not speak the language.
Health
The applicant has had issues with illegal drugs in the past; however, he does not claim to be suffering any physical or psychological conditions that require on going treatment or other medical intervention. At the second hearing, the Tribunal asked him about his illegal drug use, and he said that he has not used drugs for two years. He said that he is not taking any medicine or having treatment at the moment, but he does feel depressed and anxious. He has asked to see a medical practitioner, but this has not happened as yet.
Assessment of particular and personal circumstances
The Tribunal takes into account that the applicant will be returning to India as a person who has limited education and little work experience there. He has not engaged in any education or formal work in Australia which could be said to show resilience, capacity, or otherwise provide him with any advantage if he returns to India. He will be returning to an area outside the Punjab and will not have family or community support. He may face difficulties with language and integration. He may face difficulties finding employment, particularly given he has no formal employment history. The Tribunal also considers that his personal profile as a recovering drug user who has spent substantial time in criminal and immigration detention is likely to affect his ability to return, re-establish himself, and reintegrate in an area outside his home area. Further, while the Tribunal does not accept there is an objective chance or risk of harm from the Punjab Police outside the Punjab, the Tribunal does accept that the applicant has a significant, albeit subjective, fear. The Tribunal has formed the view that in the present case, this subjective fear will not be assuaged by relocation and indeed, will add further hurdles and barriers to the applicant re-establishing himself outside the Punjab.
The Tribunal has considered all the above carefully. The Tribunal acknowledges that the concept of reasonableness in the context of relocation must take account of the applicant’s particular and personal circumstances. These include his age, past experience in India, experience in Australia, mental and physical health, and subjective fears for himself and his family. This consideration leads the Tribunal more towards relocation being unreasonable in the present case.
Conclusion: relocation
The Tribunal finds that while the applicant may be able to relocate to another part of India to avoid harm, it is not reasonable for him to do so. It follows that the applicant faces a real risk of significant harm, now or in the reasonably foreseeable future, as a necessary and foreseeable consequence of his returning to India.
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date(s) of hearing: 26 March 2025 and 29 April 2025.
Representative: None.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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