1413026 (Refugee)

[2015] AATA 3283

1413026 (Refugee) [2015] AATA 3283 (31 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413026

COUNTRY OF REFERENCE:                  India

MEMBER:Glen Cranwell

DATE:31 July 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 31 July 2015 at 1:25pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of India, applied for the visa [in] April 2013 and the delegate refused to grant the visa [in] June 2014.

3. The applicant appeared before the Tribunal on 31 July 2015 to give evidence and present arguments.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   Refugee criterion

5. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. 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 a protection 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 the applicant 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’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

    INDEPENDENT INFORMATION

19. The RRT Standard Country Advice – India: IND42675 provides the following information on the All India Sikhs Student Federation (AISSF):

    [M]embers of the AISSF were among the casualties of Operation Blue Star in 1984. Dr Meredith Weiss also notes that during Operation Woodrose, a large number of “the AISSF’s rank and file went underground, though some leaders were arrested or killed”.[1] For more detail on Indian army and police operations against alleged Khalistan separatists in the 1980s and 1990s, see The Treatment of Sikhs in Punjab, India issues paper.[2]

    [1] Weiss, M 2002, The Khalistan Movement in Punjab, Yale Center for International & Area Studies, 25 June, pp.10-11 < Accessed 7 November 2003

    [2] RRT Country Advice 2012, Treatment of Sikhs in Punjab, India, 2 November

    No news reports were located indicating attacks on members of the AISSF by state or non-state actors in India since the 1990s. No media or human rights reports were located indicating arrests or physical harm of people due to membership of AISSF. The AISSF website’s Statements and Press Notes page does not include English-language reports alleging the targeting of its members by authorities (

    The ban on the AISSF was lifted in 1985.[3] As of 9 September 2013, the AISSF is not on the Indian Government’s list of proscribed terrorist organisations.[4] Since the lifting of the ban on the AISSF, the organisation has operated openly, campaigning on a number of Sikh issues, including justice for the victims of Operation Blue Star and the anti-Sikh violence of November 1984. The AISSF also remains highly critical of current and former police in Punjab and Delhi. Hitherto, the AISSF has conducted these activities without incurring harm from current or former members of the police, or non-state actors.

    [3] UK Border Agency 2008, Operational Guidance Note - India, Vol.9.0, April, p.6, section 3.6.8

    [4] National Investigation Agency n.d., Banned Terrorist Organisations < Accessed 10 September 2013

    Recent examples of AISSF campaigns and statements include:

    ·In August 2013, the President of the AISSF, Karnail Singh Peer Mohammad, reportedly demanded that the Supreme Court conduct an investigation into allegations that local political leaders in Delhi “incited” a mob to attack the Sikh community in the Tilak Vihar area of the city. Peer Mohammad also accused police of targeting Sikhs during the violence.[5]

    [5] Rana, Y 2013, ‘Tilak Vihar clashes: Jathedar of Akal Takht appeals for peace’, The Times of India, 16 August < Accessed 29 August 2013

    ·In July 2013, the AISSF accused the former Director General of Police in Punjab, Mohammad Izhar Alam Khan, of forcibly converting Sikh children to Islam.[6]

    [6] Rana, Y 2013, ‘Sikh body blames former DGP of conversion’, The Times Of India, 18 July < Accessed 10 September 2013

    ·Also in July 2013, Sardar Karnail Singh Peer Mohammed announced that the AISSF was seeking legal advice with regard to the filing of First Information Reports (FIR) against a number of police in relation to so-called fake encounters[7] in Punjab during the 1990s. Among those the AISSF is seeking to lodge FIRs against are Surjit Singh, who recently confessed to participating in fake encounters, and K.P.S. Gill, the police chief of Punjab during Operation Woodrose in the early 1990s.[8]

    [7] Encounters fabricated for the purposes of covering up the deaths of persons in police custody.

    [8] Rana, Y 2013, ‘Facing legal action, can Punjab cop spill beans on fake encounters?’, The Times of India, 16 July < Accessed 10 September 2013

    ·In June 2013, the AISSF and Sikhs for Justice (SFJ) announced that they intended to register a formal complaint with the “United Nations Human Rights Commission” [sic] regarding the events of November 1984.[9]

    [9] Matters India 2013, Sikh groups to approach UN for justice, 21 June < Accessed 10 September 2013

    ·In May 2013, the president of the AISSF, Sardar Karnail Singh Peer Mohammed, commended the decision of the Delhi Sikh Gurdwara Management Committee to construct a memorial to “the martyrs of the 1984 genocide in Gurdwara Rakab Ganj Sahib”.[10]

    [10] Sikh24 2013, AISSF Welcomes Decision to Construct 1984 Memorial in New Delhi, 24 May < Accessed 10 September 2013

    ·In 2012, the AISSF called for a “judicial probe” into the shooting death of a young Sikh Male at a protest in Gurdaspur, Punjab which involved members of Shiv Sena. AISSF president Karnail Singh Peer Mohammad also demanded that Shiv Sena be banned in Punjab.[11]

    [11] ‘One killed in clash over Rajoana, curfew in Gurdaspur’ 2012, The Times of India, 29 March < Accessed 26 October 2012

    …

    [T]he AISSF is a pro-Khalistan group, i.e. it supports the creation of an independent Sikh state in Punjab.[12] Furthermore, in the past the AISSF had “links” with militant groups: “[b]y May 1981, the group had nearly 300,000 members and links with important militant Sikh groups in Punjab and outside India, despite being banned”.[13] The ban on the AISSF was lifted in 1985.[14] However, no sources were located stating that the AISSF has maintained links with militant groups since the lifting of the ban.

    It should be noted that while membership of the AISSF is not illegal, promotion of secession by any territory of the union of India is designated as an unlawful activity under The Unlawful Activities (Prevention) Act, 1967:

    (o) “unlawful activity” in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),

    (i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or

    (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or

    (iii) which causes or is intended to cause disaffection against India[15]

    Alongside its non-violent support for a separate state, the AISSF primarily focuses on Sikh justice issues, as indicated [above]. Despite separatism designated as an unlawful activity, no members of the AISSF have been prosecuted for such support. The last prosecution of AISSF members in the Indian courts was in 2003. In case 1363 of 2003 in Andhra Pradesh, members of the AISSF were found guilty of the murder a Mr Joga Singh.[16] No recent cases involving members of the AISSF were located on the Indian Kanoon legal database ( No cases of prosecutions of AISSF members were located in the Punjab & Haryana High Court database ( noted in The Treatment of Sikhs in Punjab, India issues paper (November 2012), authorities do not target ordinary Sikhs who express non-violent support for Khalistan.[18] According to an article in Tehelka, shops near the Golden Temple in Amritsar openly sell posters of Jarnail Singh Bhindranwale[19] and other items. Sikh youths openly display images Bhindranwale on their clothing and in their cars, without consequences from authorities.[20] Rather, authorities are primarily focussed on the alleged activities of proscribed Khalistan terrorist groups such as Babbar Khalsa International (BKI).[21] No sources were located linking the AISSF with groups such as BKI.

    [12] UK Home Office 2011, Country of Origin Report – India, 26 August, p.169

    [13] Weiss, M 2002, The Khalistan Movement in Punjab, Yale Center for International & Area Studies, 25 June, p.10 < Accessed 7 November 2003

    [14] UK Border Agency 2008, Operational Guidance Note - India, Vol.9.0, April, p.6, section 3.6.8

    [15] Republic of India 1967, The Unlawful Activities (Prevention) Act, 1967, promulgated 30 December 1967, National Investigation Agency, Chapter III, Section 10.a < Accessed 20 February 2012

    [16] Supreme Court of India2004, Esher Singh vs State Of Andhra Pradesh on 15 March, 2004 < Accessed 11 September 2013

    [17] Indian Kanoon legal database is a project of the anti-corruption organisation Aam Aadmi (common man). The organisation has recently formed a political party with an anti-corruption platform. See <

    [18] RRT Country Advice 2012, Treatment of Sikhs in Punjab, India, 2 November

    [19] Jarnail Singh Bhindranwale remains an icon of the Khalistan movement. Bhindranwale and his supporters were the primary targets of Operation Blue Star. For more information, see RRT Country Advice 2012, Treatment of Sikhs in Punjab, India, 2 November

    [20] Pandey, B 2010, ‘Poster Boys, Poster Wars’, Tehelka, 4 September < Accessed 30 August 2010

    [21] For information on recent arrests of BKI operatives, see RRT Country Advice 2012, Country Advice IND40384, 22 May

20. The DIBP Issues Paper, India: The Treatment Sikhs provides the following information on  the current treatment of ordinary Sikhs:

    No independent human rights organisation reports were located that suggest that ordinary Sikhs in India are ill-treated on the basis of their religion, identity, appearance, etc. Neither the US Department of State International Religious Freedom Report 2012 – India or the United States Commission on International Religious Freedom report discrimination or ill-treatment of ordinary Sikhs.[22]

    A professor emeritus of political science at the University of Missouri “who has written extensively on India and Sikhs” informed the Immigration and Refugee Board of Canada (IRBC) in February 2012 that “Sikhs, in general, do not suffer discrimination in Punjab more than any other group”.[23] A professor at the University of Toronto made similar statements to the IRBC in 2013. However, a University of California (Berkley) was of the opinion that “Sikhs are distrusted by a large segment of the Indian community because of a large anti-Sikh propaganda effort during the 1980s and 1990s”.[24]

    While communal violence is not uncommon in India, communal violence involving Sikh communities is now rare. An incident in the West Delhi suburb of Tilak Vihar in August 2013 involving members of the local Sikh community was described by some media sources as communal violence.[25] On 15 August, Sikh residents of Tilak Vihar clashed with Valmiki[26] residents of neighbouring Harijan Colony, leaving at least 27 people injured, including five policemen. Vehicles and a police post were also reportedly damaged, and police responded by using lathis, firing weapons, and using tear gas. The violence was reportedly triggered by two male Sikhs dangerously driving a motorcycle in a heavily pedestrianised area in Harijan colony. Members of the Sikh community claim that the fighting was caused by a dispute between children regarding the flying of kites, which soon escalated.[27]

    The president of the All India Sikh Students Federation (Peermohammad) made the allegation that “the attackers were lead (sic) by political leaders who incited the mob to attack Sikh community and burn down their property, an FIR should be filed for against these political activists for inciting violence against Sikhs”. The president, Karnail Singh Peermohammad, reportedly “demanded an inquiry into the incident by a sitting judge of Supreme Court”.[28] A few days after the incident, police organised a peace rally in the area, which was reportedly attended by people from both communities.[29]

    While little evidence was located that ordinary Sikhs are currently at risk of serious harm by state or non-state actors, Sikhs complain that they continue to be the subject of derogatory and demeaning stereotypes and humiliating jokes; the latter commonly referred to in India as ‘Sardar’ jokes. The Times of India reported that “[t]he concern is that the stereotypical idea of a dim-witted Sardar tends to generate a certain degree of prejudice and negates the positive traits which are commonly associated with the community”.[30] Some Sikhs complain that the Indian film industry reinforces these stereotypes.[31]

    [22] US Department of State 2013, International Religious Freedom Report 2012 – India, 13 May; United States Commission on International Religious Freedom (USCIRF) 2012, USCIRF Annual Report – The Commission’s Watch List: India, 20 March

    [23] Immigration and Refugee Board of Canada 2012, India: Treatment of Sikhs in Punjab (2007-February 2012), IND103968.E, 2 May < Accessed 31 May 2012

    [24] Immigration and Refugee Board of Canada 2013, India: Situation of Sikhs outside the state of Punjab, including treatment by authorities; ability of Sikhs to relocate within India, including challenges they may encounter (2009-April 2013), IND104369.E, 13 May, ECOI < Accessed 22 August 2013

    [25] ‘Tilak Vihar: Sikhs, Valmikis hold peace march’ 2013, The Indian Express, 18 August < Accessed 22 August 2013; ‘Delhi's Tilak Vihar tense after Thursday's communal clash’ 2013, India TV, 17 August < Accessed 22 August 2013 

    [26] Valmikis are described as a “manual scavenger and sweeper caste”. See Asia-Pacific Human Rights Information Center, 2008, Directory of Asia-Pacific Human Rights Centers, p.52 

    [27] Perappadan, B S & Sikdar, S 2013, ‘Clashes in Tilak Vihar leave 27 injured’, The Hindu, 16 August < Accessed 22 August 2013

    [28] Rana, Y 2013, ‘Tilak Vihar clashes: Jathedar of Akal Takht appeals for peace’, The Times of India, 16 August < Accessed 29 August 2013

    [29] ‘Tilak Vihar: Sikhs, Valmikis hold peace march’ 2013, The Indian Express, 18 August < Accessed 22 August 2013

    [30] ‘Sikhs ask cops to ban ‘Sardar’ jokes on Net’ 2007, The Times of India, 19 March < Accessed 29 August 2012

    [31] Kaur, S n.d., Indian Film Art: A Vehicle To Humiliate Sikhs, Shaheed Khalsa website < Accessed 29 August 2012

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Tribunal has before it the Department’s file relating to the applicant.  The Tribunal has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.  This material includes:

   ·application for protection visa;

   ·copies of the applicant’s passport;

   ·interview with delegate dated [October] 2013;

   ·articles on discrimination against minorities provided by the applicant at the hearing.

2. The applicant told the Tribunal that he is from Punjab in India.  He completed the equivalent of year [grade] before coming to Australia on 16 June 2009.

3. The applicant stated that he was a member of the AISSF.  He was involved only in peaceful activities, such as putting up posters and making CDs to make people aware of what is happening to Sikhs.

4. The applicant stated that he was picked up by the police in January 2009.  He was sitting around in the field, but had been putting up posters the night before.  The police held him for 3 days in a school building, not the police station.  They tortured the applicant by beating him with wooden sticks, swearing at him, slapping him and using electric current.  The police wanted the applicant to provide the names of other people involved with the AISSF.

5. The applicant stated that he was released on the third day after his father paid money (INR250,000) to the police.  If his father had not paid the money, the police would have invented a charge against him.  The applicant was advised by his father to leave India, and he subsequently came to Australia.

6. The applicant stated that he has changed his thinking now.  He does not want to be a member of the AISSF.  He does not want to do anything with religion now.

   Political opinion

7. The Tribunal put to the applicant that the information before it indicates that although the AISSF was banned for some time following the ‘Operation Blue Star’ attack by the army and police on the Golden Temple in Amritsar in 1984 and some of its leaders were arrested and killed, there have been no reports of attacks on AISSF members by state or non-state actors since the 1990s.  The ban on the AISSF was lifted in 1985 and it does not appear on the Indian Government’s list of terrorist organizations.  The organization operates openly and publicly, campaigning on a range of Sikh issues, including demands for justice for the victims of Operation Blue Star, and has been highly critical of current and former members of the police.  It is able to conduct these campaigns without suffering harm from the police or anyone else.  While it is unlawful to promote secession from the Indian state, the authorities do not target ordinary Sikhs who express non-violent support for an independent Sikh state (Khalistan) and no members of the AISSF have been prosecuted for this reason.  The last prosecution of AISSF members for any reason was in 2003, over a case involving the murder of another Sikh.

8. The Applicant’s response to this information was that there might not be any official persecution, but there is non-official persecution by Hindu fundamentalists who target Sikhs.  The applicant referred to the articles he provided to the Tribunal, indicating that minorities were being targeted following the election of the right wing fundamentalist government.  The police have no objection to the AISSF, but non-state actors could harm him.  The Tribunal noted that he claimed to have suffered harm by the police.

9. The Tribunal also put to the Applicant that country information before it indicates are not targeted for harm in Punjab: Sikhs are in a majority in Punjab, constituting sixty per cent of the state’s population; the Chief Minister since 2007, Parkash Singh Badal of the Shiromani Akali Dal Party, is a Sikh, as are the Deputy Chief Minister and the great majority of the ministry; the Prime Minister of India during the time he claimed to have been harmed in January 2009 was Manmohan Singh, a Sikh; the Director General of Police in Punjab is a Sikh; and the vast majority of other ranks of the police in Punjab are Sikhs.[32] 

   [32] Official webside of the Government of Punjab, Official website of the Punjab Police, Immigration and Refugee Board of Canada, India: Percentage of Punjabi police force that is Sikh,

10. The applicant’s response was, in summary, that such factors did not make any difference and they had not prevented the persecution of Sikhs at the time of the persecution during Operation Blue Star and following the assassination of Prime Minister Indira Gandhi.  The Tribunal noted that these events took place before he was born in 1990.

11. The Applicant makes no claim to have been involved in violence in agitating for the achievement of the independent Sikh state of Khalistan at any point when he was in India.  Nor does he claim that he was ever involved in illegal activity of any kind.  He stated that he associated with AISSF members while at school and put up posters and made CDs to awake people to the injustices suffered by the Sikh people, including in Operation Blue Star.  Given this, together with the country information before it concerning the treatment of the AISSF, the Tribunal is not satisfied it is at all plausible that the applicant was arrested and detained by the police for 3 days in January 2009 due to his AISSF involvement.  The Tribunal notes that the applicant stated during the hearing that the police have no objection to AISSF. 

12. The Tribunal does not accept that the applicant was, in fact, detained and tortured as he claims.  It follows that the Tribunal does not accept he was released after his father bribed police.  As it does not accept that the applicant was harmed by the police because of his involvement with the AISSF while he was in India, and in the absence of any information to suggest that the situation has changed so as to make him an object of police suspicion should he return, the Tribunal is not satisfied he is at any risk of future harm for this reason. 

13. The Tribunal is reinforced in this conclusion by the applicant’s evidence that he has changed his thinking and no longer wishes to have involvement with the AISSF.  This, coupled with his 6 year absence from India, suggests to the Tribunal that the applicant would not be an object of police attention. Even on the applicant’s own account, he was not targeted by the police during the 6 month period between January 2009 and his departure in June 2009.

14. As also put to the Applicant at the hearing, a further matter casting doubt on the credibility of his claim to fear harm in India is that he delayed seeking protection until April 2013, almost 4 years after he first arrived in Australia.  His response to this was to stated that he came to Australia as a student, and thought he would be able to get permanent residence without having to show his history.  Once he could not get permanent residence, he had no option but to apply for protection.  The Tribunal is not satisfied that the explanations he has offered on this matter resolve the doubts which arise over the delay.  It appears to the Tribunal that the applicant only applied for protection as the last option to stay in Australia, after exhausting the other visa options open to him.

    Harm as a Sikh

15. Finally, to the extent that the applicant may be seen as claiming to fear harm in India simply because he is a Sikh – whether that term is meant to refer only to her religion or, more widely to embrace overlying cultural patterns amounting to what has been termed Sikh ethnicity – the Tribunal notes there is recent country information before the Tribunal indicating that Sikhs are not targeted or subjected to discriminatory harm because of their religion, dress, appearance or any other cultural trait.  The Tribunal does not accept that the applicant was ever harmed in the past as a Sikh and it is not satisfied, on the information before it, there is a real chance that he would face harm on return to India for such a reason.

16. While the applicant has provided a number of articles relating to discrimination against minorities in India, the Tribunal prefers the comprehensive research papers set out above.  The Tribunal considers these research papers to be balanced and more reliable than the articles provided by the applicant.  The most credible paper provided by the applicant, the United States Commission on International Freedom Report on India for 2015 does not specifically address the situation for Sikhs in Punjab, where they are a majority of the population.  The other reports are highly selective, and many focus on Christians and Muslims rather than Sikhs.

    Summary – refugee claims

17. In the light of all the information before it, the Tribunal is not satisfied that the applicant ever suffered harm in India because of a real or imputed political opinion as a person who was involved with the AISSF.  Nor am is it satisfied that he was ever harmed as a Sikh.  This being the case, and in the absence of any information to suggest that the situation has changed so that a risk of harm to him now exists, the Tribunal is not satisfied that on return to India he would face harm from the police, other authorities or anyone else for these reasons.  

18. The applicant does not claim to fear harm in India for any other reason and no other reason is apparent on the face of the information before the Tribunal.

19. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution because of a Convention reason should he return to India, now or in the reasonably foreseeable future, and it is not satisfied that he is a refugee.

    Complementary protection

20. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.  Therefore the Applicant does not satisfy the criterion set out in s.36(2)(a).

21. 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).  As noted, the Tribunal is not satisfied that he faces harm of any kind in India because of his political opinion or the fact that he is a Sikh.  He has not identified any additional matters which could constitute a cause of either serious or significant harm or which could be relevant to an assessment of Australia’s complementary protection obligations in his case.

22. In the light of the information before it, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to India, there is a real risk he would suffer significant harm as defined in subsection 36(2A) of the Act.

23. There is no suggestion that the Applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the Applicant does not satisfy the criterion in s.36(2) and cannot be granted a protection visa.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Glen Cranwell
    Member