1413478 (Refugee)

[2016] AATA 3321

1413478 (Refugee) [2016] AATA 3321 (12 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413478

COUNTRY OF REFERENCE:                  India

MEMBER:Filip Gelev

DATE:12 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 12 February 2016 at 11:48am

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of India, applied for the visas [in] March 2014 and the delegate refused to grant the visas [in] 2014.

3. The applicants appeared before the Tribunal on 11 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent DFAT Country Information Report on India is dated 15 July 2015.

    Member of the same family unit

19. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse.

    Credibility

20. The Tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’.

21. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.

22. However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, 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. In addition, The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

23. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

    Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

24. The Full Court noted that this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

    in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.

25. If the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in this case is whether Australia has protection obligations in respect of the applicants. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

27. Only the first named applicant submitted Part C of the application form, that is, his own claims for protection. The second named applicant did not make claims of her own, although she claimed to share her husband’s political views and to fear harm from the government on account of her husband. The first named applicant stated in the application form (the Tribunal has broken up the statement into paragraphs, but has left the text as it appears on the application form):

    ·     I BELONG TO'SIKH FAMILY OF VILLAGE [name] IN DISTRICT AMRITSAR. WE HAD SYMPATHY TOWARDS SIKHS WHO WERE BUTCHERED BY INDIAN ARMY, POLICE AND CONGRESS WORKERS.

    ·     I HAVE RELIGIOUS AND POLITICAL BELIEFS THAT MANY SIKH LEADERS BETRAYED THE COMMUNITY FOR POLITICAL MOTIVES. WE ARE BEING SUSPECTED AS IF WE ARE CRIMINALS. THE BLACK DAYS STARTED IN MY LIFE AFTER OUR HEROES: [Mr A], [Mr B] AND [Mr C] ESCAPED FROM [JAIL] ON [date] JANUARY 2004. POLICE HAD RAIDED OUR HOME SOON AFTER THEIR ESCAPE.

    ·     MY FATHER ONCE TOLD ME THAT MAY BE WE HAVE TO KEEP [Mr A] AT OUR RESIDENCE FOR A FEW WEEKS OTHERWISE HE WILL BE KILLED BY THE POLICE. MY FATHER MET [Mr A] ON [date]/06/2004 AT SOME PLACE NEAR AMRITSAR. THE POLICE GOT THE CLUE AND RAIDED OUR HOME AND PICKED ME AND MY FATHER AND TOOK TO VARIOUS POLICE STATIONS. WE WERE TORTURED AND REPEATEDLY ASKED THAT WHERE IS [Mr A].

    ·     MY FATHER TOLD THE POLICE THAT HE HAD MET HIM SOMEWHERE NEAR [location] TO PAY HIM RS. 10000 (TEN THOUSAND). POLICE CONFIRMED US THE SUPPORTERS OF [Mr A]. WE WERE BEATEN SO SEVERELY THAT MY FATHER HAS TO BE HOSPITALISED BY THE POLICE. WE WERE RELASED AFTER INTERVENTION OF LOCALS.

    ·     THE MATTER WAS RAISED AFTER THE ARREST OF [Mr A] ALMOST AFTER TWO YEARS OF HIS ESCAPE. POLICE OFFICERS EXTORTED MONEY FROM US IN THE NAME OF [Mr A] MANY TIMES JUST TO BLACKMAIL MY FAMILY, IT WAS AGAIN IN SEPTEMBER 2008 WHEN THE [officer] OF POLICE ARRESTED ME AND MY FATHER TO INTERRIGATE [sic] ABOUT [Mr C] (CO-ACCUSED OF [Mr A]) WHO ALSO BROKE THE JAIL AND IS STILL AT LARGE.

    ·     AFTER OUR RELEASE WE ARE BEING HARRASED AGAIN AND AGAIN, I FEARED HARM THEREFORE PLANNED TO COME TO AUSTRALIA

28. In answer to the question whether he has suffered harm in the past, the applicant said that he had been beaten and tortured twice by “Pinjab [sic] police”.

29. He has a strong belief that if he goes back to India, he would be killed in what is known as a fake encounter with the authorities or he would be put in jail.

30. The people who would harm him are the police and some political leaders.

31. At interview with the delegate the applicant raised a new claim: in 2011, on a trip from Australia to India, the applicant did not go to Punjab. Instead he went to Uttar Pradesh. However, Punjab police found the applicant and travelled to Uttar Pradesh where they harassed him and his family.

32. In support of his claims, the applicant provided to the Department of Immigration two affidavits purporting to be from third parties. One is from his parents, it is dated [in] June 2014 and states:

    That present ruling party as well as Punjab police Department is dangerous for us and our son [name of applicant] as he was Sikh Founded of Sikh religion.

    That our son is always apprehends in his mind that form the said party will cause dangerous to his life as and when he used to live in Punjab at village [name]. The Punjab Police Department is raiding the house at village [name] to find out our [son]. 

33. The second affidavit purports to be from [name], [official] of [two organisations]. It is dated [in] June 2014 and a translation into English is dated [in] June 2014. According to the translated version of the letter:

    Due TO Sacrifice work as Sikh Caste religious he [the applicant] has very bad in Government Eyes not to see them.He has danagerous [sic] from Police which have not [sic] imprison in the Police on any false case.

    He has very dangerous for return from Australia.

34. The Tribunal accepts that in 2004 three Sikh militants escaped from jail in January 2004. They had been imprisoned in relation to the assassination of former Punjab Chief Minister Beant Singh. Their names were as claimed in the applicant’s claims set out in the application form: [Mr B], [Mr A] and [Mr C].[1] At the time of the delegate’s decision in 2014 [Mr C] was still on the run. According to media reports he was arrested [in] January 2015. [Mr B] and [Mr A] had already been [caught].[2]

    [1] [Information deleted].

    [2] [Information deleted].

35. However, for the reasons that follow, the Tribunal finds that the applicants have fabricated their claims of past harm and their subjective fear of future harm based on true events. The Tribunal has concluded that neither the applicants, nor any of their relatives or friends has any connection to [Mr A], [Mr B] or [Mr C].

    Well-founded fear of persecution

36. The Tribunal has put together the applicants’ migration history from various sources. At the hearing, the applicants did not dispute it. It is also reproduced in the delegate’s decision, a copy of which was provided together with the application for review to this Tribunal.

37. Both applicants were granted a class TU subclass 572 visa [in] December 2008. The first named applicant arrived in Australia [in] January 2009 and the second named applicant arrived in Australia [in] February 2010. At the hearing, the second named applicant explained that in early 2009, when she found out she was pregnant with the couple’s first child, she decided to stay in India. Their [child] [name] was born on [date]. The second named applicant left [the child] behind when she travelled to Australia in February 2010.

38. [In] April 2010 the applicants lodged an application for a further student visa and they were each granted a Bridging A visa [in] April 2010.

39. [In] May 2010 the Department of Immigration refused the application on the basis that the first named applicant did not satisfy the English language requirements for the grant of the visa. On 11 July 2012 the Migration Review Tribunal (MRT) affirmed the decision of that delegate.

40. The applicants made a request for ministerial intervention pursuant to s.351 of the Act to to substitute a more favourable decision for the decision of the MRT The Tribunal has before it submissions made by the applicant’s then representative to the Minister for Immigration in relation to the s.351 request. Among other things, the submissions state that the applicant “always had and still have [sic] genuine intentions to acquire his skills which will enable him to have a successful career in his home country”.

41. Documents on departmental [file] indicate that [in] April 2013 the Minister for Immigration decided not to exercise his powers under s.351 of the Act.

42. The website of the Federal Court of Australia and the Federal Circuit Court of Australia (FCCA) indicates that [in] July 2013 the applicant applied for judicial review of the MRT’s decision. According to orders made by the FCCA [in] August 2013, [in] February 2014 was the date of the final hearing. The application was discontinued [in] February 2014.

1. The application for protection was lodged [in] March 2014. “Movement records” indicate that the applicant had been the holder of Bridging E visa from [August] 2012 until [March] 2014. As of the time of application for the protection visa, after more than 5 years in Australia the applicant was an unlawful non-citizen.

2. At the hearing the applicants conceded that the summary outline above of their migration history was correct, including the submissions to the Minister pursuant to s.351 of the Act.

3. According to the protection visa application form, the applicant obtained a new Indian passport in [city] in [2009]. According to the application, the applicant travelled back to India to visit his parents twice – in October 201 and December 2011.

4. At the hearing the applicant conceded that he had obtained a new passport and travelled back to India on two occasions. He said that he had obtained a new passport, because the old one had expired. In relation to his fear of harm in India and his trips to India, the applicant said that the authorities had “no record” of him and that was why he travelled back.

5. The Tribunal observes that the quality of the interpreting appeared not to be perfect. On occasions the interpreter would use English words or phrases while speaking in Punjabi, and some of them were incorrect e.g. when asked to interpret the five Convention grounds the interpreter used the words “political group” in English, instead of “political opinion”. When the member sought to correct her, she said she was just explaining to the applicant.

6. The Tribunal has taken into account the possibility that some of the questions and answers may not have been interpreted entirely accurately. Notwithstanding the difficulties with the interpreter, the Tribunal considers that the applicant were able to present their evidence and arguments. On a couple of occasions, the Tribunal had to seek further clarification from the applicant about aspects of his evidence and he was happy to elaborate further. The Tribunal notes that the applicants spoke in English on occasions and they have already been interviewed by the delegate, who used an interpreter to ask probing and detailed questions.

7. Furthermore, the Tribunal’s credibility findings are not based on minor inconsistencies or gaps that could be explained by the quality of the interpreting at the hearing. They are mainly on the delay in lodging the application and the fact that the first named applicant obtained an Indian passport and then travelled back to India twice.

8. The first named applicant took more than five years from first entering Australia to lodge an application for protection. The Tribunal has considered his explanation that he was hoping to renew his student visa and that he was doing things “step by step”. The Tribunal finds that it is not a satisfactory explanation, because the applicant ceased being the holder of a student visa in 2010. The Tribunal considers that, in July 2012 at the latest, when the time the MRT affirmed the decision of the Department of Immigration not to renew the applicant’s student visa, the applicant would have known that there is some likelihood that he may not be able to obtain a new student visa.

9. There was nothing preventing the applicants from applying for protection visas while they were seeking, through various means in the period 2010-2014 to obtain new student visas. They clearly had some knowledge of aspects of the Australian migration system. They were represented in relation to the student visa application and they were already given advice in relation to applying for merits review (to the MRT), seeking ministerial intervention and seeking judicial review.

10. Subsequently, when the applicants sought, under s.351 of the Act, a more favourable outcome in relation to the MRT’s decision, they failed to mention their fears of returning to India. In fact, it was claimed in submissions to the Minister that the first named applicant intends to return to India.

11. In addition, the Tribunal notes that student visas are temporary visas. In order to remain in Australia in safety, the applicants would have had to transition from student visas to some other class of visa to ensure that they can remain in Australia permanently or at least long term. Thus, even if the Tribunal were to accept – and it does not – that from the time when their initial student visas expired in 2010 up until March 2014 the applicants were clinging to the hope of obtaining new student visas, the Tribunal finds that they would have realised that new student visas would not offer a definitive solution to their problem. The Tribunal also notes that during the long “step by step” process of seeking to obtain new student visas, the applicants were separated from their families and their [child] who has never lived with [the] father, the first named applicant.

12. Secondly, the applicant had to approach the Indian Authorities in Australia to obtain a new passport in 2009. When asked about this issue, the applicant simply told the Tribunal that his old passport had expired and he needed a new one.

13. Thirdly, he travelled to India in 2010 and 2011. Such behaviour is inconsistent with a subjective fear of harm. Both applicants became distraught and emotional when discussing how long they have been separated from their [child], who remains in India. The applicant said that the main reason he returned to India twice was to see his [child] and his parents. The Tribunal accepts this is the case. However, in the Tribunal’s view this is one further reason why it is implausible that if the applicants had a subjective fear of harm in India they would not have applied for protection earlier in order to regularise their status in Australia and to apply for a visa for their [child] to join them in Australia.

14. The applicant said that he was not harmed when he travelled back to India, because he bribed the police. The Tribunal notes that the applicant could not have known when he travelled back that he would not be seriously harmed. The fact that he may not have been, for example, detained or killed on his trips back, cannot explain ex post facto his decision to return.

15. The Tribunal had other credibility concerns. It has assessed the applicant’s evidence given to the delegate and set out in the delegate’s very extensively researched and well written decision. At interview the applicant struggled to answer basic questions such as provide the name of the police station where he was detained and tortured in 2008.

16. The Tribunal observes that at the hearing also, the applicant had difficulty answering some straightforward questions. For example, the Tribunal asked the applicant whether since his last trip to India his father had been arrested. Initially, the applicant did not answer the question but instead said that his father had been arrested in 2004 and 2008. When the Tribunal repeated its question, the applicant said that since 2008 the authorities had visited his father 2-3 times, but they had only asked for bribes. The applicant’s third answer was that his father had indeed been arrested about 3 months ago. Finally, when the Tribunal pointed out the difference between the second and third answer, he said that his father had been arrested, but after money was paid he was not arrested.

17. At interview with the delegate the applicant claimed that in 2011 he was tracked down by Punjabi police in Uttar Pradesh. The applicant maintained that claim at the Tribunal hearing. He claimed that they were after him to questions him about the whereabouts of [Mr C] who was still on the run. He could not explain why the authorities would not have arrested his father in India instead, if they had reason to believe that [Mr C] was getting help from, or in, India.

18. The Tribunal finds that the applicants’ inability to answer simple questions is due to the fact that they have fabricated their evidence. While these problems by themselves may not have been sufficient for the Tribunal to reach the view that the applicants are not witnesses of truth, the Tribunal gives them confirmatory weight.

19. The Tribunal also observes that the applicant’s claims were inherently implausible. He claims that in 2004 the authorities arrested him and tortured him and his father because they assisted [Mr A]. In 2008 the authorities re-arrested and again tortured him and his father to find out the whereabouts of [Mr C] (or [name]). In 2011 the Punjabi police travelled to Uttar Pradesh to interrogate the applicant about the whereabouts of [Mr C]. As the applicant conceded during the hearing that the Indian authorities put considerable effort into locating and re-arresting both [Mr A] and [Mr C]. Eventually, they were both found outside of India and extradited to India. As noted above, the international manhunt for [Mr C] continued until 2015. And yet, the applicant claimed that the authorities did not charge either him or his father with any offences in connection with [Mr A] or [Mr C]. The authorities never sought to prosecute them. Since 2008 the authorities have been happy to extract bribes from the applicant’s father who remains in the family home.

20. When asked to explain the absence of a prosecution, he told the delegate that there is no First Information Report against him. He gave the Tribunal a similar explanation – he said the authorities had no record of him. The Tribunal finds that if indeed the authorities suspected that the applicant and his father were involved in assisting [Mr A] and [Mr C], then there would have been an FIR or some record of the police inquiries and there would have been a prosecution.

21. Although the two affidavits, referred to at paragraphs 32 and 33 above, partially corroborate the applicants’ claims, the Tribunal’s credibility concerns set out above outweigh any weight that it may have placed on the affidavits.

22. The Tribunal rejects the applicants’ claims in their entirety. The Tribunal finds in relation to both applicants that they were not reliable, credible or truthful witnesses, and that they concocted a story of past harm in order to be granted protection visas.

23. The Tribunal finds that neither the applicants nor any of their relatives has ever had any contact or association with [Mr A], [Mr B] or [Mr C], nor any other Sikh activists. He has never been of any adverse interest to the authorities. Neither the applicants, nor any of their relatives has ever been harassed, asked for a bribe, arrested, interrogated, tortured, threatened or harmed in any way in connection with Khalistan sympathies or in connection with anything to do with Sikhism.

24. Having concluded that the applicants have made up their claims of past harm, the Tribunal has still turned its mind to the possibility that the applicant may face a real chance of persecution for reasons of their support for the cause of independent Khalistan or in relation to their Sikh religion.

25. Both applicants gave evidence to the Tribunal in relation to “fake encounters”. “Fake encounters” are incidents where the police kill an unarmed person and later claim that the person died in a gun battle with police.[3] They asserted that a total of 30,000 people had been killed in such extra-judicial killings.

    [3] “How Punjab’s missing thousands are being forgotten”, BBC News, 3 June 2014, accessed at on 8 February 2016.

26. When the Tribunal asked whether they were talking about the 1980s and 1990s, initially the second named applicant said yes. However, when the Tribunal suggested that it was not according to the independent county information such killings of Sikhs were not occurring in 2016, the applicants referred to an article – which they had brought to the hearing – showing that in 2015 the police had fired at a crowd of peaceful Sikh protesters and killed some of them. When the Tribunal expressed a view that this public incident in October 2015 could not be characterised as a fake encounter, the applicants insisted that it demonstrated that the authorities continue to kill Sikhs with impunity. Therefore, they argued, they would be at risk on return to India.

27. The 2015 incident in question relates to a bout of protests prompted by the alleged desecration of Sikhism’s holy book, Sri Guru Granth Sahib, in the village of Bargari, near Kot Kapura in Faridkot district. Tens of thousands of protestors pitched their tents in Kotkapura and blocked the Moga-Ferozepur national highway. Punjab police attempted to disperse the protesters. Initially they used batons, then water cannons and, finally, live ammunition. According to some sources two people were killed,[4] according to an article provided by the applicants “a number” of people died.[5]

    [4] “Why are Indian Sikhs angry”, BBC, 20 October 2015, accessed at on 8 February 2016.

    [5] The source of the article is not clear. It is entitled “Heart Breaking Scenes of the killing of peaceful Sikh protesters in Punjab shows little has changed since 1984”.

28. The Tribunal accepts that the applicants were genuinely upset about the deaths of other Sikhs. The Tribunal considers that the use of excessive force by the authorities on protesters – who happen to be Sikhs – and the resulting deaths of either two or a few people is a tragic display of police incompetence. However, it has no parallels with the targeted crackdown by the authorities and pogroms by civilians on Sikhs in the 1980s and 1990s  when thousands and possibly tens of thousands of Sikhs were killed and disappeared. The Tribunal considers that this incident indicates that the Indian security forces may sometimes use excessive force against civilians, but the Tribunal is not persuaded by the applicant’s assertion that the authorities were targeting these particular protesters on account of the protesters’ religion or political views.

29. In relation to the applicant’s claim that fake encounters continue to take place, the Tribunal finds that the country information does not support the assertion that the police engage in fake encounters against Sikhs. As the Tribunal noted during the course of the hearing, the country information suggests the opposite, namely, that some of the people responsible for extra-judicial killings in the 1980s and 1990s are being brought to justice.[6]

    [6] A. Sood, “Punjab fake encounters: 8 policemen get life term”, The Tribune, 1 April 2015, accessed at on 8 February 2016.

30. As discussed with the applicants at the hearing, country information indicates that at present Sikhs are not persecuted in India. The Tribunal specifically referred to the DFAT Country Information Report (July 2015) at 3.18.

31. In response the applicant named a number of people who in his view were not proper Sikhs. He argued that many Sikhs had betrayed the Sikh cause. He expressed his opposition to the politicians who currently govern his home state, Punjab.

32. The Tribunal suggested that according to country information India is generally considered to be a democracy (see, for example, DFAT Country Information Report at 2.25) and that people are allowed to express their views peacefully. The applicant once again referred to the killing of demonstrators in October 2015. He also talked about the fact that during the India Independence Day parade in January 2016 the Sikh regiment was not allowed to participate.

33. He suggested that this showed that Sikhs suffer discrimination in India. The Tribunal advised the applicant that it was not familiar with the exact reasons why the Sikh regiment was not included in the parade, but a quick internet search, which the Tribunal undertook during the hearing, demonstrates that people are allowed to express their views and opinions peacefully. The Tribunal said in Google it could see numerous articles in relation to his incident in Sikh24, Indian Express, Hindustan Times, Tribune India and DNA India. In response the applicant said “yes we could write, but nothing would happen”.

34. The applicant explained that the French head of state (whose name the applicant did not know) was a guest the parade. The applicant said that turbans are banned in France and that the Indian government may have decided not to include the Sikh regiment in order to please the French president as the Sikhs of that regiment wear turbans. Country information sourced by the Tribunal indicates that many Sikhs believe this to be the explanation for this occurrence.[7]

    [7] “Absence of Sikh Regiment in R-Day parade. HSGMC seeks PM’s apology”, Tribune India, accessed at on 11 February 2016.

35. The Tribunal considers that even if this was the reason for the central government’s decision to exclude the Sikh regiment, this event and other country information does not satisfy the Tribunal that the applicants will face a real chance or persecution or real risk of significant harm for reason of their religion or political views. The exclusion of the Sikh regiment may have been an inept attempt to please a special foreign dignitary, Francois Hollande, but in the Tribunal’s view it is not indicative of generally held discriminatory attitudes against people of the Sikh faith or people who advocate peacefully for the establishment of an independent Khalistan.

36. The Tribunal accepts that the applicants dislike the Indian and Punjabi governments and they consider that some Sikhs who are imprisoned are political prisoners.[8] The Tribunal considers that the applicants would be free to express their political views – including in support of “political prisoners” – and to practise their religion on return to India.

    [8] See for example, V. Singh, “Sikh prisoners: Ins & outs of jail terms”, The Tribune, 11 January 2015.

37. An article provided by the applicants about a certain Mr Surat Singh Khalsa, indicates that “at least of 8 people” are languishing in jails despite having completed their sentences. They are people who have been sentenced in connection with their involvement in a bank robbery case. The Tribunal is not satisfied that the applicants face the prospect of being detained, arrested, prosecuted or convicted for any reason. The Tribunal is not satisfied that the detention of a number of people after they have served their sentences demonstrates that India is a “dictatorship” as claimed by the applicant or that Sikhs or that peaceful Khalistan activists are being targeted by the authorities.

38. The Tribunal has carefully considered the applicants’ claims individually and cumulatively and available independent country information. The Tribunal is not satisfied that the authorities have any interest in detaining, arresting or questioning the applicant for any reason; that the authorities will seek to kill him in a fake encounter or seek to extract bribes from him. The Tribunal finds that both applicants can return to India and they will not face any harm from the authorities or from anybody else.

39. The Tribunal finds that neither applicant has a well-founded fear of persecution if they were to return to India now or in the reasonably foreseeable future for reason of their Sikh religion, their actual or imputed political opinion in support of independent Khalistan or any Convention reason.

40. As a consequence, for the reasons give above, the Tribunal also does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that either applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

41. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations.

42. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

1. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Filip Gelev
   Member