1420867 (Refugee)

[2016] AATA 4282

1420867 (Refugee) [2016] AATA 4282 (16 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420867

COUNTRY OF REFERENCE:                  India

MEMBER:Rachel Westaway

DATE:16 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 16 August 2016 at 4:53pm

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] May 2014 and the delegate refused to grant the visa [in] November 2014.

3. The applicant appeared before the Tribunal on 17 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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. 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’).

   Mandatory Considerations

8. 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.

   Country of Reference

9. The Tribunal accepts on the evidence before it, namely a copy of the applicant’s passport, that he is a national of India and it has assessed his claims against India as his country of Nationality for the purposes of the Convention and as his returning country for the purposes of s.36(2)(aa).

   Credibility

10. 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’.

11. 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.

12. 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.

13. 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

14. The issue in this case is the credibility of the applicant’s claims. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

15. The applicant arrived in Australia [in] November 2008 on a subclass 572 student visa.

16. [In] January 2011 he applied for a subclass 485 skilled graduate visa which was later refused. He applied to the Migration Review Tribunal for review of the decision. The decision was affirmed and [in] July 2013 he requested Ministerial Intervention which was declined [in] February 2014.

17. The applicant made an invalid protection visa application [in] March 2014. He made a new application [in] May 2014 which was refused and is now the subject of this review.

18. The applicant’s claims in the visa application under review are:

    ·     He is at risk because of his political opinion and religion.

    ·     He left India to ‘get rid of the political rivalry he was facing’.

    ·     He stated he was the [senior officeholder] of the Indian National Congress from [location] Tehsil

    ·     He claims issues occurred in 2006/7 when the Punjab Legislative Assembly elections occurred – he claims to have supported the congress candidate [name]

    ·     He claims to have campaigned for the opposition leader [name] of Shiromani Akali Dal (Badal)

    ·     He claims to have exposed those involved in the operation Blue Star attack

    ·     He claims it was [in] January 2007 and he was attacked because he was holding a rally and his men were also attacked and ‘caught hold off of them. He claims they attacked and abused us’.

    ·     He stated that government was formed by Badal and congress workers were put into false litigation, harassment and humiliation.

    ·     He was arrested without any charges and humiliated by the [senior officer] of police. His parents came to get him.

    ·     He claims it occurred on numerous times and he was abused, harassed and slapped on the face. [In] June 2008 at the behest of [Mr A] he was beaten by plain clothed police and told he would be killed if he is seen again. He claims he fled to Australia for safety.

    ·     He has been told by party workers they are still looking for him.

    EVIDENCE TAKEN AT HEARING

19. The applicant appeared before the Administrative Appeals Tribunal on 17 February 2016 to give evidence to support his claims.

20. The applicant provided a 6 page submission to the Tribunal at the commencement of the hearing.  It included two pages of pictures; one of a male that appeared to be dead surrounded by syringes, the other picture was a page divided into two with two scenes of an emergency and people standing around and quoted numbers in two columns stating deaths, victims and convictions. The following four pages included a letter dated [in] November 1983 addressed to [Mr B] (a senior leader of the Indian National Congress. He was also a former [officeholder] and confidante to Indian Prime Minister Indira Gandhi and a witness to Indira Gandhi assassination in 1984. As [officeholder] to the Prime Minister, he attained unparalleled power and influence in India during this period.). The second two pages are titled New Text Document and contain undated and unreferenced information relating to a claimed Punjab Drug Epidemic. The final page of the submission is a letter addressed to [name] dated April [in] 1984 from [Mr B].  No reference to the applicant was made in the submissions relating to how these issues impact on him.

21. At the commencement of the hearing. The applicant confirmed that he prepared his own protection visa application. He stated that he researched it himself.

22. He confirmed he is happy with the contents and does not want to change anything. He stated that he would like to provide additional information to the Tribunal.

23. The applicant is now [age].

24. He has never returned to India to visit family and he confirmed that his family have not come to Australia to visit him. He claims that his [relative] has already returned to India but he was in Australia. His [relative] worked as a [occupation] and moved to [city] and [worked]. He said that they had a domestic fight in Australia so he doesn’t speak.

25. The applicant described his family in India. He stated he has [siblings] and parents. His father has retired and his mother stays at home and [one sibling] works in [industry] and [another sibling] is [age] and doesn’t work. The applicant’s father has a government job in [agency]. He was in a senior role and worked for many years. He retired a few months ago.

26. The applicant is a Sikh but he claims he is very open minded. He claimed he use to practice Hinduism and Sikhism.  

27. The applicant was born in [town] in Punjab. He has travelled to Haryana and lived there for 8 years. He lived in a government colony and they supplied a home to live in.

28. The applicant chose Australia as a destination to come to. He left India stating he had a good life but was sick of propaganda, lying and politicians. He stated that it affected him because he heard it on the news and it was censored and not proper information. He said he felt set up. Her claims that the politicians make people fight on the bases of their religion and caste. He is against this.

29. The Tribunal asked the applicant why he came to Australia. He claims he came to Australia as a student because there was no other way to come here.

30. The Tribunal asked the applicant why he took so long to apply for a protection visa. The applicant stated he was young and didn’t know. He was [age]. The Tribunal put to him that he would have had time to seek advice. He claimed he was unable to research and didn’t know and that he had no internet access. He said that in India he could not look for that much information. The Tribunal asked the applicant about his student visa and how he managed to research this. The applicant said that many young people were already coming to Australia including his [relative] who was already here and told him about it.

31. The Tribunal stated that it was in receipt of 6 pages submitted at the beginning of the hearing. It asked the applicant to explain what the submission was supporting.

32. Firstly, the Tribunal referred to the images regarding drugs and asked the applicant how drugs in India would affect him. The applicant stated that because the government is involved drug use is high. He said that unemployment is high and this leads to drug use and addiction. He stated he has a problem in that he doesn’t want to become involved in it. The Tribunal stated then the applicant should not take drugs. The applicant agreed but said he is worried. He claims that “just like those before him, they never took drugs”. He stated he is making specific reference to Punjab. He stated that alcohol is another issue. He said the government is not trying to fix the problem. The Tribunal put to the applicant that the independent country information makes no mention of any drug epidemic in Punjab which would give the applicant a greater risk of being exposed to and harmed in anyway more than the general population. The Tribunal notes that even Australians have problems with addictions too. The applicant said there is no work and he agreed there is an ice problem in Australia. He said that if there is no work and then they take drugs it’s a problem but in India it’s different. He said people are dying because of such addictions and he doesn’t want to be involved in this.

33. The applicant stated that he obtained the information from newspapers but he could not find any more stories. He believes the government are behind the drug issues and they are making money from it. He stated that he can’t talk about the whole of India just Punjab.

34. The applicant said that alcohol is also an issue. It is bad alcohol not like in Australia where it is good. He said that “Punjab stands as number 1 for consumption”. He is concerned he will be involved in the web. He claims people are dying because of addiction and he is afraid.

35. The Tribunal explained to the applicant its concerns that the risk of the applicant being exposed to drugs or other addictive substances is the same as that of the rest of the population and that if the applicant chose not to take such things then his risk of addiction would be removed completely. There would be no risk of harm. The Tribunal also explained to the applicant that the information he provided the Tribunal was circumspect and contains no references or dates and in essence the detail is limited. The Tribunal explained to the applicant that it appears that the claims are raised to enhance his migration claims and that the Tribunal is concerned about the credibility of his claims and him as a witness given he is not a drug user and is not addicted to any substances and stated that he does not want to take drugs. The applicant was provided with an opportunity to comment. The Tribunal asked the applicant to provide further information as to why he fears returning to India.

36. The applicant claims he joined the Congress Party as a small leader.  He said they were all the same though. There are two parties in India, Congress and the BJP – he stated you cannot say anything. He is also afraid of Akali Dal, a political party for Sikh rights.

37. The Tribunal asked the applicant if he has maintained his political interests given he has been away from India since 2008. The applicant stated that he has become disenchanted with system and all parties are bad.

38. The Tribunal referred to the copies of letters included in his submission and asked the applicant their significance and relevance to his case given they are dated 1983 and 1984.

39. The 1983 letter is to [Mr B] from [Mr C] requests information and expresses concern about the deteriorating situation in Punjab. The 1984 letter is penned from [Mr C] to [Mr B].  It is a confidential letter written to the Indian Government (Mrs. Indira Ghandi’s office) about a month before the Operation Blue Star took place. In the letter [Mr C] is asking Mrs. Gandhi to execute the plan. Operation Blue Star targeted Sikhs during the period 2006 – 2008.  

40. The applicant submitted a document in Punjabi to the Tribunal. He stated that it is a copy of the 1983 letter. The Tribunal explained to the applicant that all submissions must be translated. The applicant proceeded to provide a very limited description of its contents.

41. The Tribunal asked the applicant its relevance. It shows the corruption and lying and shows that Akali Dal was involved. He stated that the second letter shows the attack.

42. The Tribunal asked the applicant the relevance of the pictures of bodies surrounded by drugs and syringes. He said he found the pictures on the internet and that drugs are a real problem in India. He said these pictures prove what is happening and what is going on.

43. The applicant referred to the death of Indira Gandhi in 1984 and the following riots and massacre. He stated that many Sikhs were killed in Delhi and there is still no hearing to date.

44. The Tribunal referenced country information referred to within this decision in greater detail and put to the applicant that it was a time of great violence in India however that specific situation has subsided. It also confirms that the Indian police force and judiciary investigated many cases with some prosecutions. The applicant stated he hasn’t heard of any.

45. The applicant said he was accused of printing and distributing the letter dated April [date] 1984. He confirmed that he did print these letters and put them on the walls to tell people about Operation Blue Star because they weren’t aware. He spent 1-2 weeks putting them up on walls. He claims was not alone. He did it with others. The applicant stated that people shouted verbal abuse at him in the market place and was grabbed by the collar by a man and they said to leave and or we will kill you.

46. The Tribunal asked the applicant when this happened. He stated he cannot remember when it occurred. He summarised it was around January 2007. He said the ruling party knew they would win the elections. Then matters heated up.  He said there was a person threatening him called [Mr A]. He claims that he felt depressed and just wanted to escape from India.

47. He stated that news spreads quickly and a local person named [Person 1] told police about him and the posters he was putting up and his political involvement. He said that police stopped him when he was on motorcycle on his way home on day. He was blamed for being against Akali Dal. The police did not speak to him properly. He claims Punjab police are rude. He said they pulled him up by the side of the road where there is a police post. They gave him a warning that he should not be seen around here because he is anti Akali Dal.

48. The Tribunal asked about the others involved in putting up posters and if they too were targeted by police. The applicant stated that the other young boys who helped put up posters were not that visible. He said that he was young and immature and targeted. They were not noticed and after the elections the applicant said he stopped speaking to people and being vocal about such issues. The elections occurred in February 2007.

49. The Tribunal asked the applicant what he did in India after the election. He claims he stayed at home most of the time. He met his relatives. He stayed away from politics as much as possible to concentrate on studies. He said he studied English for IELTS.

1. He stated that after February 2007 he was not targeted by police or the person in the market who had grabbed his collar and warned him. He claims if he was to return they would recognise him but he would not be able to remember them.

2. The Tribunal asked that applicant if anyone physically harmed him outside of the man grabbing his collar in the market.

3. He claims that he had heard that men on a bike tried to beat up someone that they mistook for the applicant. The man escaped. He doesn’t know who they are. He said that there were so many he doesn’t know. He found out about it because the one they tried to beat up said he didn’t know anyone.  The Tribunal asked him how he knew this person and he said that he lived close by but has moved away now. He cannot remember his name. The Tribunal expressed concern regarding the credibility of this claim given the applicant believes he was the one who was being targeted and yet he does not know who took the attempted assault for him.

4. Tribunal put to the applicant that it has concerns pertaining to the credibility of the claims. Especially when the applicant is unable to provide any detail to substantiate his claims such as names of people. The applicant stated that maybe his name is [name A] but he is not sure. He stated it did happen.

5. The applicant said that he does not have work rights and he was depressed but he is on medication and ok now. He said he sat at home for 2 years and thinking hurts his mind because he cannot work.

6. The Tribunal put to the applicant that it has concerns about the applicant’s claims because it seems implausible that he remained in India for nearly 2 years and nothing happened yet he believes he is profiled and will be harmed on return. It is also implausible that given the passage of time he would be profiled as anti Akalidal and remembered given he was not high profile and was only putting up posters as he claims. Furthermore it is implausible that he cannot remember them but they can remember him. The Tribunal would expect someone who fears such harm would remember their enemies as their enemies would be inclined to remember them. The Tribunal put to the applicant that his claims given their lack of detail and substance and plausibility are hard to accept. The applicant was given an opportunity to respond.

7. The applicant then said “his name is [name B] and he also he lived in a government colony”.

8. The government colony has boundary walls all around. He said that his father is retired so they are no longer entitled to live there.

9. The Tribunal asked the applicant whether he could live with his parents if he returned to India. The applicant said that he fears them. He said that he is fed up with politics and religion and corruption.

10. The Tribunal asked the applicant to clarify his claims regarding religion and corruption. He stated that what they had taught about religion and corruption is being changed slowly. SGPC is also corrupt.  The Tribunal notes that SGPC is an organization in India responsible for the upkeep of Gurdwaras, Sikh places of worship in three states of Punjab.

11. He said he does not like how religion is conducted forcefully in India. He said that in Australia it is different.

12. The Tribunal put country information to the applicant which negated these claims. The Tribunal stated that the Constitution prohibits discrimination against any citizen on the grounds of religion. The applicant agrees with the country information regarding the constitution but said there are fanatics and in reality it happens. He gave the example of Alkali Dal and the BJP as fanatics. He stated that whether he is a religious follower or not, life is very difficult for him. He said it’s easy to say if you’re here. No one adheres to the Constitution.

13. The applicant claims that he was taken into a police station without being charged. He claims they tried to beat him and the applicant just said yes to all questions. The Tribunal asked the applicant to provide greater detail about the incident. He stated that he was picked up at a post. He was unable to describe which post because there are 2-3 posts and he couldn’t remember where he was picked up. He claims to have been grabbed by the collar but not beaten.

14. The applicant explained to the Tribunal that his family are involved in politics. They are fanatical Sikhs and they do not like the fact that he has cut his hair.

15. The Tribunal asked the applicant whether his father’s employment with the government was affected due to the applicant’s claimed profile. The applicant stated that his father held a federal role in government and he has stayed away from politics.

16. The Tribunal put to the applicant that he could relocate and possibly live in another part of India where he was not known. The Tribunal put country information to the application in support of relocation. The applicant stated that there are many reasons why relocation would not be suitable. He stated that BJP have the same view wherever he is and corruption is everywhere and he would be found and targeted. He stated that he would face language barriers and you need a lot of money. It is very difficult.

17. The Tribunal asked the applicant about his involvement following the election given it was some time ago. The applicant confirmed he has not been involved since the election and is disenchanted with Indian politics. He claimed he has no contact with anyone in India and is fed up with politics and nothing will change and there is no point in trying.

18. The applicant stated that if he returns to India he is afraid he will be trapped. He said that the people in his village may recognise him and it is a risk. He said it is always on his mind.

19. The applicant said that India is a hard place to live. He has lived in Australia now for 7 years and it would be hard to return, especially because he has different thoughts on religion, politics and for many reasons.

    COUNTRY INFORMATION

20. DFAT Country Report, India, 15 July 2015 provides relevant background information to the applicant’s claims. The following information is taken from the report.

    Multi-ethnic country

21. India is a diverse, multi-ethnic and multi-lingual society. The 2001 census stated that 80.5 per cent of the population identified as Hindu, 13.4 per cent Muslim, 2.3 per cent Christian, 1.9 per cent Sikh, and less than one per cent each identified as Buddhist, Jain or others.

22. Although India’s population is majority Hindu, there are states in India in which the majority of the population identifies with a single religion other than Hinduism.

    Political Landscape

23. India’s most recent general election was held between April and May 2014 at 930,000 polling stations over nine phases. Over 553 million citizens voted (66 per cent of the 834 million eligible voters), making the election the largest democratic event in history.

24. For much of the post-independence era, Indian politics has been dominated by the Indian National Congress party (Congress). However, the Bharatiya Janata Party (BJP) won 282 seats on its own out of 543 elected seats in the 2014 general election, the first time that a single party obtained a parliamentary majority since 1984. The BJP formed government along with its National Democratic Alliance (NDA) partners, who won a further 54 seats. Prime Minister Narendra Modi and his cabinet were sworn in on 26 May 2014.

    Constitution prohibits discrimination on the grounds of religion

25. Section 15 of India’s Constitution prohibits discrimination against any citizen on the grounds of religion. Section 25 guarantees the right to freely profess, practise and propagate religion, and section 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. According to the US State Department’s 2013 report on International Religious Freedom in India, the Central Government ‘generally respected religious freedom’. However, the US Commission on International Religious Freedom’s (USCIRF) 2014 and 2015 reports noted that India had struggled to protect minority communities or provide justice when crimes occurred, due to a lack of political will, corruption, and religious bias by government officials.

26. While the majority of cases of communal violence in India since partition have involved the Hindu and Muslim communities, a number of major incidents of violence have taken place between India’s Sikh and Muslim Communities.

27. Although the complexity, diversity and sheer size of India makes general observations difficult, DFAT assesses that overall there is a low level of official discrimination on the basis of religion. The extent of this discrimination varies considerably between states.

    Sikhism and politics

28. “Sikhism is a monotheistic religion founded in Punjab in the 15th century. According to the 2001 census (the latest figures available), the Sikh population of India was approximately 19 million, 1.9 per cent of the total population at that time. 75 per cent of the Sikh population live in Punjab, where they constitute almost 60 per cent of the population. Significant Sikh populations also reside in Haryana, Rajasthan, Uttar Pradesh, Delhi, Chandigarh, Jammu and Kashmir, and Himachal Pradesh.

29. One of the points of difference among Sikh political parties is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. However, a number of other grievances persisted among the Sikh community and some pro-Khalistan groups and individuals continued to advocate armed struggle. During an internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984, the Indian Government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The Golden Temple complex was bombarded by artillery, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.

    Operation Blue Star

30. In retaliation for Operation Blue Star, two of Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days that followed, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which there were credible allegations of torture, extrajudicial killings and deaths in custody carried out by security forces. These operations and the successful conduct of state elections in the 1990s and 2000s helped to diminish support for armed struggle and separatism. A number of official inquiries were undertaken following the 1984 riots, and charges have been brought against those suspected of instigating and being involved in the anti-Sikh violence. Former Minister of State for Home Affairs Mullappally Ramachandran said in April 2013 that 3,163 persons had been arrested, 650 cases registered and 442 persons convicted for their roles in the riots. However, there are continuing claims that many of those responsible for the 1984 riots have not been brought to account, and Sikh groups continue to advocate for courts to retry previously dismissed cases. Prosecutions continue against several of the accused, including a former Congress Union Minister, Jagdish Tytler.

31. The Akali Dal was founded in 1920 as a representative body to advocate for Sikh rights in British India. While for a period in the 1940s it advocated for an independent homeland, its leadership gave up these demands following promises from Congress leaders that Sikhs would have special status in an independent India. In the post-independence and post-partition era, the Akali Dal or Shiromani Akali Dal (Supreme Akali Party) emerged as the main political rival to Congress in Punjab, particularly following the creation of a Sikh majority state in 1966. The party became highly factionalised in the 1980s, and has since split into a number of rival parties. The major faction, the Shiromani Akali Dal (Badal), is currently the senior coalition partner in government in Punjab (with the BJP). Its leader, Parkash Singh Badal, is serving his fifth term as Chief Minister.

32. Many Sikhs have held high office in India. The immediate past-Prime Minister Manmohan Singh is a Sikh, and a number of Sikhs have been Chief of Army Staff of the Indian Army. Sikhs have long enjoyed a disproportionately high representation in the Indian Armed Forces (estimated at up to 20 per cent, although statistics are not readily available). The Indian Armed Forces enjoy a high reputation in India.

33. Overall, DFAT assesses that Sikhs in contemporary India have no heightened risk of official or societal discrimination beyond that experienced by the broader community.”

    FINDINGS AN REASONS

34. The Tribunal accepts on the basis of sighting the applicant’s passport, that the Applicant is a national of India. The Tribunal has assessed the applicant’s claims against India as his country of nationality for the purposes of the Convention and his receiving country for the purposes of s.36(2)(aa).

35. The Tribunal accepts that the applicant was born in Punjab in India and is a Sikh.

36. The applicant stated that he is open minded and has practiced Hinduism and Sikhism. A the applicant made no specific claims regarding the practice of two religions, and considering country information available to the Tribunal which confirms that Indian citizens are free to practice whatever religion they wish, the Tribunal accepts the applicant has practiced both Hinduism and Sikhism and has note faced harm because of this.

37. The Tribunal has given significant weight to the applicant’s immigration history, namely the length of time after arriving in Australia to the time he made his application for protection was five and a half years. The Tribunal has also considered the applicant’s unsuccessful application for a skilled graduate visa and his Ministerial Intervention request. The applicant had many opportunities to apply for a protection visa and did not. The Tribunal does not accept the applicant’s reasons that he had no internet and did not know how to research it. The applicant was adept at researching and applying for his skilled graduate visa and for Ministerial intervention.  The Tribunal finds that the applicant is not a credible witness and his actions are those of someone who is trying to prolong their stay in Australia.

38. The Tribunal does not accept the applicant’s claims that he is in danger of being addicted to drugs or alcohol if he returns to India and specifically Punjab. The applicant has confirmed he does not take drugs and is not addicted to anything. His claims are farfetched and lack credibility. There is no medical evidence before the Tribunal that the applicant is at risk and no evidence before the Tribunal that the Government is behind his conspiracy. The Tribunal has no relevant information before it that would indicate the applicant would be at greater risk than anyone else in the population in India to be exposed to drugs and alcohol. The Tribunal does not accept these claims and finds the applicant is not a credible witness and that the claims have been made to enhance his claims for protection.

39. The Tribunal accepts that the applicant has cut his hair which his orthodox Sikh family are upset about. It is evident that the applicant has cut his hair. However the applicant made no claims about harmed feared from his parents regarding cutting his hair. The applicant also confirmed that his father is not political. As such, the Tribunal finds that the applicant is in no danger from his parents regarding his political views or from cutting his hair.

40. The Tribunal has carefully considered the applicant’s political profile pertaining to his activities in India. The applicant was unable to substantiate his claims with any detail. For example, the applicant claims he was a [senior officeholder] of the Indian National Congress in [location]. He provided no detail about his work as [a senior officeholder] other than to say he assisted with campaigning in the 2006/7 when the Punjab Legislative Assembly elections were held by distributing letters and posters which he claims exposed Akali Dal as being corrupt. He claims he supported a local candidate. He also stated that he attended rallies. The Tribunal whilst acknowledging putting posters up might be part of the role of a [senior officeholder] and attending rallies, the Tribunal would expect that a [senior officeholder] would be involved in more diverse and senior work. Furthermore, the applicant provided no background to his political involvement nor was he able to explain any other political work he was involved in or how long he had been involved in politics. He was unable to name the people he was putting posters up with. It is not the role of the Tribunal to make the applicant’s case; however the applicant was provided with an opportunity to make submissions both prior and post hearing and to provide oral evidence at hearing. The Tribunal finds that the applicant was not a [senior officeholder] of the Indian National Congress in [location] and he did not attend rallies or distribute letters or posters and did not support a local candidate.

41. The applicant was invited on several occasions throughout the hearing to elaborate on his claims and provide greater detail regarding his claimed attacks and acts of violence targeted towards him. He could not provide dates at hearing in which he was attacked. He could not clarify which post he was attacked at when the claimed attack occurred by police. He claims that one person in his village was attacked but he was the targeted and the attackers mistook the other person for the applicant. The applicant was unable to name who the other person was. The Tribunal expects that if someone had been attacked and mistaken for the applicant, it would be reasonable to know who that person was. Given the lack of detail provided by the applicant the Tribunal finds that his claims are not credible and as such finds that he was not attacked on any occasion and nor does the Tribunal accept that a local villager was attacked because he was mistaken for the applicant.

42. Given  the findings above, the Tribunal does not accept that the applicant was a Congress worker who was put into false litigation, harassed or humiliated or arrested without any charges and humiliated by the [senior officer] of police and that his parents came to get him. Furthermore, the Tribunal does not accept that on numerous times he was abused, harassed and slapped on the face or that [in] June 2008 at the behest of [Mr A] he was beaten by plain clothed police and told he would be killed if he is seen again. The applicant supplied no detail at hearing. His written statements in his application contained dates and details but when asked at hearing, the applicant was unable to recall any detail regarding these claims. The Tribunal finds that these claims are not credible given the lack of detail and the vagueness of the claims. Based on this credibility finding, the Tribunal does not accept the claims above or that party workers are still looking for him.

43. The Tribunal has considered that the applicant mentioned at times he was depressed as he had no work and worried for his safety. The applicant provided no medical evidence to support these claims. He claims he was on medication but did not supply details about his treatment or medication. However, the applicant made no specific claims that his depression may create difficulties for him on return to India or in answering the questions at the hearing. The applicant answered question in a logical manner in spite of the limited detail he supplied. The Tribunal notes that if the applicant should require medical support in India, India does have a fully functioning medical system which the applicant would have access to. The Tribunal has no medical evidence before it to make a finding on the applicant’s medical condition and notes no claims were made, but for the purposes of clarity finds that the applicant had no difficulties engaging with the Tribunal process.

1. Given the Tribunals credibility findings regarding the applicants claims and the fact that the Tribunal does not accept that the applicant is at any risk because of his claimed political or religious background or profile or his risk of drug and alcohol dependency, the Tribunal finds that there is not a real chance or real risk that the applicant will be harmed on return to India. 

2. The Tribunal has considered the applicant’s claims and finds that the applicant is not a credible witness. As such the Tribunal does not accept the applicant’s claims as detailed above. The Tribunal finds that the applicant does not face a real chance or real risk of harm for any reason convention or non-convention related.

3. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that he faces a real chance of serious harm or a real risk of significant harm if he returns to India now of in the reasonably foreseeable future.

   CONCLUDING PARAGRAPHS

4. 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).

5. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. 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).

   DECISION

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

   Rachel Westaway
   Member