1503167 (Refugee)

[2015] AATA 3504

1503167 (Refugee) [2015] AATA 3504 (1 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503167

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:1 October 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2015 at 2:34pm

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] July 2014 and the delegate refused to grant the visa [in] February 2015.

3. The applicant appeared before the Tribunal on 18 August 2015 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.

    Relocation

15. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of 'practicable', to expect him or her to seek refuge in another part of the same country. What is 'reasonable' in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Complementary protection criterion

16. 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’).

17. ‘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.

18. 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.

    Relocation

19. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that 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. That relocation must be 'reasonable' is also a requirement when considering the definition of 'refugee' and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of 'practicable', must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Section 499 Ministerial Direction

20. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The Tribunal has before it material including:

    ·     Application for protection visa;

    ·     Copy of the applicant’s passport;

    ·     Applicant’s undated statement accompanying his application for review;

    ·     Affidavit dated 15 July 2014 from the applicant’s father concerning the applicant’s claims;

    ·     Affidavit dated 15 July 2014 from [Sarpanch] (Headman) of the [village], concerning the applicant’s claims;

    ·     Membership receipts from Shiromani Akali Dal (Amritsar);

    ·     Copy of submission from Shiromani Akali Dal (Amritsar) to [a Minister in] India concerning the law and order situation in the Punjab dated [in] January 2005;

    ·     Statement from [a hospital in] July 2014 concerning the applicant’s medical treatment [in] August 2007;  

    ·     Statement from [an official of] Shiromani Akali Dal (Amritsar), [District 1] attesting to the applicant’s membership of the Shiromani Akali Dal (Amritsar) and supporting his claims dated [in] July 2014;

    ·     Statement from [another official of] Shiromani Akali Dal (Amritsar), attesting to the applicant’s membership of the Shiromani Akali Dal (Amritsar) and supporting his claims dated [in] July 2013;

    ·     Documents and newspaper articles relating to Shiromani Akali Dal (Amritsar) dated from 2003 – 2005;

    ·     Internet articles, including a Wikipedia entry, concerning Surat Singh Khalsa’s involvement in protests to seek the release of Sikh political prisoners and subsequent arrest on “preventative charges”, and a list of 85 Sikh political prisoners in India.

22. The applicant’s claims can be summarised as follows. The applicant will be harmed because he was an active member of the Shiromani Akali Dal (Simranjit Singh Mann or Amritsar) (SAD(A)) party. His involvement in SAD(A) protest activity as a leader in his area gave him a profile with local police as an activist and a pro-Khalistani supporter. He was taken into custody many times by police and was targeted in connection with his involvement in SAD(A) protest activity. On one occasion in 2007 he was held by police for two days and badly beaten and tortured. The current Punjabi government, the Shiromani Akali Dal (Badal), continues to order police to detain people who are active in the SAD(A) to prevent protest activity. The applicant’s profile as an activist and pro-Khalistani is on-going and he fears that if he is returned to India he will be taken into custody by police and perhaps killed in an “encounter killing”.

23. At the hearing, the applicant confirmed he was born in the Punjab and stated that he belonged to a Sikh family. His father and grandfather, who were part of the Sikh political party, Shiromani Akali Dal (A), told him of the Sikh gurus, whose goal was to protect Sikhs, and he adopted the same principles.

24. The applicant was involved in sport and he was accepted to [a] College in [Suburb 2], free of cost, on the basis of his skill in [a sport]. He went to college from [year] to [year], and completed his [tertiary qualifications]. He played [sport], first for college, then University and then at national level with his college.

25. At the hearing, the applicant stated that he was a member of the Sikh Students Federation at [College]. The President of the Federation was also a member of the SAD(A) and it was through him that the applicant had the opportunity to meet with the SAD(A) and attend their meetings. The applicant said that because he held the same views as the SAD(A) party, he was more involved than most. Because he was active, he was nominated by the SAD(A) to be the leader in his area and college.

26. The applicant stated that the main motive of the SAD(A) was to get equal status and opportunity for Sikhs as Hindus. He wanted justice for Sikh families who were killed in 1984, where many of the perpetrators were still free. It was also the aim of the party to preach to young Sikh people to keep them away from bad habits such as drugs.

27. At the hearing, the applicant said that the group at his college organised constant activities, protesting in different cities each week, with the aim of making people aware of the injustice of discrimination against Sikhs and to propagate awareness against drugs. They had no intention to be violent or destroy property.

28. At the hearing, the applicant stated he completed his studies in [year]. He tried to get work in sport, the area of his interest. He believed that because he had a high degree and played sport at a national level, he would be able to get a job in the police or government sector. He was unsuccessful because it was not possible to be successful if you did not pay a bribe. He taught [to] children at a [school] in an unpaid capacity, helped his father on the farm, and in the evenings, he played [sport].

29. The applicant said that during this period he continued to be in touch with his college friends and he remained an active member of the SAD(A) party in the area. If there was a threat to Sikh interests he would rally students to help. For example, they went to Gujarat to help Sikhs in need after the Tsunami in 2004. He stated that mostly their protest activity was to support people who needed help in Punjab, for example where the government unjustly did not pay people the right value for their land or harvest. Once a week the group would meet and decide on what action to take next, and which city to go to. Mostly their protests were held in [District 1] and [Suburb 2]. The applicant led the group to make banners and to go to the location, usually political party offices or police stations, to highlight their cause. Sometimes they would take bikes or cars in a procession through the city. They tried to get media attention although the media would not usually print about their work. The applicant was the only person from his village who was involved in this activity.    

30. The police did not like this activity and started to target him and other members responsible for the protests. They were labelled Khalistani. The applicant and his group tried to convince police that they were not involved in Khalistani activity but the police did not listen to them. The applicant stated that the police detained him many times without a crime, sometimes from his college and sometime from his home, because of his SAD(A) party activity.

31. At the hearing, the applicant stated that [in] August 2007, he was kidnapped by police from his house without an arrest warrant, taken to the police station and beaten. The applicant said that at the time of this incident, there was a large drug problem at the college, encouraged by the government to keep the students quiet so they could not go against them. The media had reported that the brother-in-law of [an official] was supplying heroin, but nothing had been done. The students were protesting against police inaction. The brother-in-law of the [official] said to police that the people raising their voices should be quieted.

32. [In] August 2007, the applicant was met by his friend as he was returning home who told him the local police were at this house. His friend tried to deter him from returning but the applicant feared they would take his father if he did not, so he returned. When he arrived, the officers hit him, made him sit, then took him to the local police station. Because people feared “fake encounter” killings, his father and uncle followed the police vehicle, and remained outside the police station all night. The police did not register his case and beat him badly with sticks on his legs and arms, asking how he was involved in the protest activity, whether someone was forcing him, trying to force him to admit that he is a Khalistani and saying that if he said he would stop his protest involvement he would be released.

33. In the morning, his father gave the police money to ensure they would not continue to beat him. The following night, the police just questioned him. The applicant was released the next day after his father went with the Village Head to seek his release. He was not able to walk because of his injuries. He was taken to hospital and given medication. He received two visible [wounds]. The applicant referred to the hospital certificate attached with this application.

34. At the hearing the applicant stated that he lived in a small village of about [number] – [number] people, and that not everyone in the village is your friend, some people do not like you. He stated that someone must have said something to the local police about his activities.  

35. At the hearing, the applicant said that after this incident, he did not stay in his own home, but stayed with his [aunt] in [another location]. His father felt it was not safe for him to stay in the Punjab, and his uncle in Australia [encouraged] him to come to study [in] Australia. He advised he came to Australia in December 2007.

36. At the hearing, the applicant described features of his village including a lonely spot at a nearby river, where, he stated, fake encounter killings had occurred. He believes he will be killed in this way if he returns. He said that in Punjab the police continue to take Sikh boys from their houses without reason and kill them in fake encounters.

1. At the hearing, the applicant stated that he continues to have an adverse profile with the local police in his village. He did not return to India to attend his brother’s marriage because when there are incidents connected with SAD(A), the police come to his house enquiring about his whereabouts. This happened following disturbances at the Golden Temple Amritsar [in] June 2014. More recently, local police came to his house when many people who were planning to demonstrate in support of Surat Singh Khalsa (“Babu”), a political activist campaigning for release of Sikh prisoners who had completed their court sentences, were detained without warrant [in] August 2015. His father had called him saying police were searching houses in [Suburb 2] on the pretext they were interested in terrorist activity but they were actually interested in thwarting protests related to Babu’s hunger strike.

2. The applicant stated that he did not inform anyone he had come to Australia and the police continued to look for him. He has returned to India only one time for 24 days in 2011-12 to attend his sister’s wedding. He went to his village for the days of the wedding only and stayed with his uncle in another area for the remaining 20 days. He did not go out much because he was scared he would be identified by police and picked up again. He did not return to his home to attend his brother’s wedding in 2013 because he did not feel safe. He added that there are many Sikh boys in jail without reason.

   Independent country information

   Treatment of supporters of Shiromani Akali Dal (Amritsar) in Punjab

3. In 2015, the Department of Foreign Affairs and Trade (DFAT) stated that following Operation Blue Star in 1984, approximately 3,000 people, mostly Sikhs, were killed in communal 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.”[1]

   [1] DFAT Country Information Report, India, 2015, p.10

4. According to a Human Rights Report of 2014, civil society activists continued to express concern about the government’s failure to hold accountable those responsible for the 1984 communal violence, although there was slow progress in several court cases.[2]

   [2] India 2014 Human Rights Report, p. 62

5. In correspondence with the Research Directorate of the Immigration and Refugee Board of Canada in 2015 in relation to treatment of Sikhs in Punjab, a representative from the World Sikh Organization (WSO) of Canada, a human rights organization promoting the rights and protection of Sikhs in Canada and around the world (WSO not dated), stated that Sikh communities that "advocate for and support a separate Sikh state or Khalistan" or challenge the power of the state government in religious matters, … and Sikhs who are suspected of being "militant sympathizers" are "subject to monitoring and in some cases, detention and torture" (WSO 17 Apr. 2015).[3]

   [3] Immigration Review of Canada, India: Treatment of Sikhs in Punjab (2013 – April 2015), p.1

6. According to the Research Directorate of the Immigration and Refugee Board of Canada in 2015, while the SAD(A) may be considered a radical Sikh political party, it continues to operate openly as an organisation. “The Assistant Professor indicated that the Akali Dal (Amritsar) [a "splinter" Akali Dal party formed in the mid 1990's], and Dal Khalsa [a political group promoting an independent Sikh state in Punjab (Terrorism.com 26 Apr. 2014)], and other "radical" Sikh "ethnonationalist" political parties and organizations "continue to operate above ground" (Assistant Professor 19 Apr. 2015).”[4]

   [4] Immigration Review of Canada, India: Treatment of Sikhs in Punjab (2013 – April 2015), p.4

7. The Canadian Research Directorate consulted academic sources who indicated that Sikh activists in Punjab may be arrested and detained under preventative detention clauses to suppress protest action. The Canadian Research Directorate cited an Assistant Professor who noted that if the government "perceives a threat to communal peace and law and order because of specific planned rallies or marches by Sikh “ethnonationalists," the state may place leaders of the Sikh political party members and or activists in preventative custody.” The same source further stated that once in preventative custody, activists usually do not face physical abuse; however, in some instances, activists may "periodically" have "legal cases ... placed on [them] ... for secessionist and/or provocative speeches".[5] The representative from the WSO expressed the view that Khalistan advocates are "often" arrested during peaceful protests and are subject to "'preventative arrest'". Leaders and workers of other Sikh nationalist parties "are routinely detained under preventative detention clauses (WSO 17 Apr. 2015). According to the Assistant Professor, government officials who perceive Sikh ethnonationalists and activists as a threat to the stability of the ruling government "are subject to police and/or legal harassment" and that those who openly challenge or criticize the ruling Akali Dal are "prone to various forms of personal harassment" (Assistant Professor 19 Apr. 2015).[6]

   [5] Immigration Review of Canada, India: Treatment of Sikhs in Punjab (2013 – April 2015), p.4

   [6] Immigration Review of Canada, India: Treatment of Sikhs in Punjab (2013 – April 2015), p.4

8. The Canadian Research Directorate also refers to media reports of the arrest of leaders of SAD(A) political party for waving black flags upon the arrival of the Prime Minister Modi in Punjab and the detention by police of dozens of SAD(A) supporters who had gathered nearby prior to the PM’s arrival.[7]

   Detention, torture and “encounter killings”

   [7] Immigration Review of Canada, India: Treatment of Sikhs in Punjab (2013 – April 2015), p.5

9. In 2015, DFAT noted that suspects in India have a right to legal counsel and must be brought before a magistrate within 24 hours of being arrested, unless the suspect is considered an enemy alien or is held under a law allowing for preventive detention.[8]

   [8] DFAT Country Information Report, India, 2015, p.21

10. However DFAT also state that, ‘Encounter killings’ or ‘fake encounters’, involving a death at the hands of police or security forces who later claim self-defence or some other explanation for the victim’s death, have occurred in both rural and urban India”.[9] Similarly, while the law prohibits torture, use of such practices by police have been reported.[10]

    Relocation

    [9] DFAT Country Information Report, India, 2015, p. 17

    [10] DFAT Country Information Report, India, 2015, p. 18

11. According to its most recent 2011 census, India's population was approximately 1.21 billion[11] in some 27 million towns and settlements, and the largest 8 cities have between 4 and 12 million people in each.[12]

    [11] DFAT Country Information Report, India, 2015, p. 4.

    [12] - accessed 20 August 2015

12. In 2013, United States Department of State (USDOS) stated that Indian law provides for freedom of movement within the country, and the government generally respects this in practice. In late 2010, the government repealed the requirement for nationals to apply for special permits to travel to Manipur, Mizoram and Nagaland. Such permits, however, are still required to travel to Jammu and Kashmir.[13]

    [13] US Department of State 2013, Country Reports on Human Rights Practices for 2012 – India, 19 April, Section II   

13. In 2010, the UK Home Office stated that there are no checks by authorities on newcomers arriving from another part of India; local police “have neither the resources nor the language abilities to undertake background checks on individuals relocating within India”. Furthermore, there is no registration system for citizens.[14] The 2008 UK Home Operational Guidance Note – India advised that internal relocation was feasible where an applicant’s fear was of local police and where a person is not of interest to the central authorities.[15]

    [14] UK Home Office 2010, Country of Origin Information Report – India, 21 September, p.95

    [15] UK Home Office 2008, Operational Guidance Note – India, April, p.6

14. The Immigration Review Board of Canada (IRBC) also corresponded with an official at the Canadian High Commission in India, who “said that police share information about ‘law enforcement’ but indicated that ‘there is limited sharing of information between police forces’ and police are not required to ‘report the movements of persons of interest to other offices’”.[16] 

    [16] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May < Accessed 29 May 2012

15. The previously mentioned official from the Canadian High Commission in India indicated to the IRBC that as there is no central police database and records are kept in local police stations in India, “this makes it ‘extremely difficult, if not impossible’ to locate an individual as a result of a security check, unless there is a match between a local police station and the subject of a security check”.[17]

    [17] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May < Accessed 29 May 2012

16. In 2015, DFAT stated that millions of Indians successfully relocate within India each year and that in general there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence.[18]

    [18] DFAT Country Information Report, India, 2015, p. 22

17. Hindi, one of the two official languages, the other being English, is the majority language in India spoken by 41 per cent[19]. Hindi is spoken by a majority in eight northern states.[20] According to the Encyclopaedia Britannica Online, Hindi is spoken as a first language by approximately 425 million people across India, and as a second language by an additional 120 million[21].

    [19] DFAT Country Information Report, India, 2015, p. 4

    [20] University of Illinois at Urbana-Champaign – Linguistics Department (n.d.), a Brief Profile of the Hindi Language

    [21] Encyclopaedia Britannica Online (n.d.), Hindi language

18. The Times of India reported on 23 June 2013 that overall Indian unemployment rate was 3 per cent.[22] In 2015, the World Bank reported that the Indian economy grew 7.4 per cent in 2014 and is likely to grow at 6.4 per cent in 2015.[23]

    [22] - accessed 21 August 2015

19. In relation to employment, the 2006 IRBC report stated that, “Upon relocation to an area in India outside of Punjab state, several sources commented Sikhs would have indiscriminate access to employment.”[24] In 2015, DFAT assessed that Sikhs in contemporary India have no heightened risk of official or societal discrimination beyond that experienced by the broader community.[25]

    [24] “India September 2010”, UK Home Office, 21 September 2010, 1976

    [25] DFAT Country Information Report, India, 2015, p. 11

20. A UK Home Office operational guidance note indicates that “Punjabi Sikhs are able to relocate to another part of India and there are Sikh communities all over India. Citizens are not required to register their faith in India and Sikhs are able to practise their religion without restriction in every state of India.”[26]  Information in a 2006 Immigration and Refugee Board of Canada report indicates that the majority of Sikhs in India reside in Punjab state, but there are Sikhs located in every state in India.[27]

    [26] UK Home Office 2008, Operational Guidance Note – India, April, p.6

    [27] India – IND41114 – Punjab – Educated Person – Employment, Housing, Education Prospects – Relocation

    Country of reference

21. The applicant claims to be an Indian national. Based on the copy of his passport, the Tribunal finds that India is his country of nationality for the purposes of the Convention and also the receiving country for the purposes of s.5 and s36(2)(aa) of the Act.

    Assessment of claims

22. The applicant presented as a generally credible witness who gave consistent, detailed and spontaneous evidence about his individual circumstances in India and Australia at the Tribunal hearing. His evidence was also broadly consistent with the independent country information, set out above, that indicates that a person who is active in Sikh protest actions in Punjab may be subject to police monitoring, harassment and ‘preventative’ custody and violence. His evidence was also broadly consistent with independent country information that authorities in the Punjab may continue to use detention and harassment where the government perceives a threat to communal peace and law and order because of specific planned rallies or marches by Sikh activists. The documentary evidence provided by the applicant was consistent and supported the applicant’s claims.

23. Given the applicant’s credible account, I accept that he is from a Sikh family in rural Punjab who supported the SAD(A). I accept that he was an active member of the SAD(A) in his college in [Suburb 2], and that he took an informal leadership role in his local area between 2001 to 2006. I accept that he was regularly involved in organising demonstrations and rallies in support of Sikh rights and to protest against the denial of justice to the victims of the 1984 Sikh massacre. I accept that the group in which the applicant was involved was particularly concerned about the high level of drug use by young Sikhs and demonstrated against the involvement in drug supply of people related to government.

24. On the basis of the applicant’s credible account, general consistency with country information and his other evidence, I am satisfied that the applicant was taken into custody by police many times in relation to his protest activity, and that [in] August 2007 he was taken from his home by his local police and held without charge for two days. I accept that on this occasion he was beaten on the first night of his custody, and that subsequent to his release he required medical treatment.

25. For the same reasons, I accept that, through his political activities, the applicant gained a moderate profile with local police as an activist and pro-Khalistani. I also accept that the applicant comes from a small village where the local police may be influenced by people in the village. I also accept that at a local level the village police will know the applicant and remember his political activities. I accept the local police continue to enquire about him at his house at times of political unrest.

26. Given the past action of the local police in the applicant’s village in Punjab, and considering independent country information concerning reports in relation to Punjab of police harassment, and ‘preventative’ detention of SAD(A) activists, and physical abuse and occasionally deaths in police custody, I accept that the applicant fears he will be taken into custody, tortured and perhaps killed, as a result of his profile as an activist and pro-Khalistani opinion. I find that the applicant fears harm because of his political activity, a claim pertaining to his political opinion.

27. I have considered the nature of the harm feared by the applicant and I find this amounts to serious harm for the purpose of s.91R(1) of the Act. Given the past action of the local police in Punjab and related past events, and considering independent country information, I find that the applicant faces a real chance of serious harm at the hands of the local police in the reasonably foreseeable future in his home area of Punjab on account of his political opinion.

28. Based on the credible evidence of the applicant, and having regard to s.36(2)(aa) of the Act cited above, I find that that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm in his home area in Punjab where he may be arbitrarily detained, tortured and perhaps killed at the hands of the local police.

    Relocation

29. Having found that the applicant faces a real chance of serious harm in the localised area of his home in Punjab, I considered whether the applicant would be able to reasonably relocate to another area of India such as one of India’s urban centres, several of which have populations in the millions, or another area of India which has a large Sikh population such as Rajasthan, Uttar Pradesh, Delhi or Himachal Pradesh[28].

    [28] Office of the Registrar General & Census Commissioner 2001, Population by Religious Communities, Census India website

30. It was put to the applicant at the hearing that independent country information indicates that India is a vast and populous nation where there is freedom of movement, and an absence of police or other checks on people relocating in India. It was further put to the applicant that there is limited sharing of information between police forces and the lack of a central database makes it extremely difficult, if not impossible, to locate an individual; that the country information (as referred to above) does not support that the authorities or anyone else would have any interest, or be able, to find him in the rest of India; and indicates, in relation to the Sikh community, that internal relocation was feasible where an applicant’s fear was of local police and where the person was not of interest to the central authorities.

31. The applicant stated that the Tribunal’s information about relocation is from the media and internet, rather than the state where this is happening, and that the state government of Punjab and Central government work together and do not protect people such as him, noting that even today people involved in the massacre in 1984 have not been punished. In the applicant’s view, the media portray only what they want and they work hand in glove with the government. I considered these comments but given the totality of the independent country information, I accept that relocation is a viable option for people in the Sikh community in Punjab whose fear was of local police where a person was not of interest to the central authorities, and who were seeking protection from discrimination or violence.

32. I have considered whether the harm faced by the applicant as a local SAD(A) activist was localised to his area of the Punjab. I have found his past activities were of a local nature for which he had no national profile. I noted that the applicant made no claim to be of interest to authorities more broadly outside his local area. On the basis of the applicant’s past activities and the country information above, I found that he would not face a real chance of serious harm or a real risk of significant harm outside his state of the Punjab on this basis.

33. I have considered whether the applicant would engage in future political activities outside of his home region upon return, and if so whether this would lead to a real chance of serious harm or real risk of significant harm in those areas. At the hearing, the applicant referred to the activities of Surat Singh Khalsa (above) and stated that he did not want to return to the kind of life there was in India, where Sikhs had been in jail for 15 – 20 years without their families knowing. He stated that if he returned, he would want to return to Punjab to support this cause. I have considered the applicant’s statement but I do not believe it is plausible that he will return to any political activities upon return. In reaching this view, I have taken into account that the applicant has been away from the Punjab in Australia (apart from a brief visit) for the past eight years and he has made no claim to engaging in Sikh political activity, or any other political activity, in Australia. I consider that he has not demonstrated that he continues to be politically active in any way. On this basis, I find that the applicant does not face any chance or risk of harm for this reason outside of the Punjab.

1. At the hearing, the applicant said that once your name is involved in some matters, the police will find you in any part of the country. The applicant stated that he does not want to be scared to go out, fearing for his life and knowing that he will be picked up and put in jail without reason. I considered the applicant’s comments, but given the totality of independent county information which indicates that the police have neither the resources or ability to find people relocating within India, and my finding that he was not of interest to the central authorities, I found that he would not be found by police if he relocated to another area in India. On this basis, I found that the applicant could relocate to other Indian states where there is no appreciable risk of the feared persecution.

2. There are a number of factors including his education, employment experience and language skills (put to the applicant for comment) that strongly indicate that it would be reasonable for the applicant to relocate to another state of India to avoid any localised risk of serious harm and significant harm in Punjab. He questioned how he could start again in India, noting that he had tried hard in India but had not been able to get employment and that he would not be able to get work if his life is in danger. I considered the applicant’s comments but given my finding that there is no appreciable risk of the occurrence of the feared persecution in areas outside Punjab, I do not accept that it would not be reasonable for the applicant to relocate to another state in India to avoid the localised threat of serious harm that he faces in his home state of Punjab, for this reason.

3. The applicant also stated that he has already established himself in Australia, had been good at his studies and had improved his English driving taxis in Australia. I have considered his comments, and while I accept that his return to India to a location outside Punjab would be disruptive, I do not accept that it would be unreasonable. In this consideration, I have taken into account that the applicant is well educated, having completed [tertiary qualifications] in the Punjabi language in India, and has obtained [further qualifications] in Australia and country information which indicates unemployment in India is low and the country is experiencing substantial growth. Also noting that the applicant reads, speaks and writes Hindi, the official language, is healthy and has demonstrated independence in his life in Australia, I do not accept that he would not quickly be able to find work and support himself.

4. At the hearing the applicant said he would not be able to establish himself if he returned to India because there is discrimination against Sikhs. He supported his view, stating that laws are applied differently against Sikhs, and cited examples where for the same crime Sikhs were punished while Hindus were released. He noted that while Sikhs are charged and punished for minor offences, those responsible for the 1984 deaths go unpunished. I considered the applicant’s comments but given the totality of country information which indicates that Sikhs have indiscriminate access to employment and there is no heightened risk of official or societal discrimination beyond that experienced by the broader community (as referred to in the country information above), I do not accept that, in relocating, discrimination would prevent him from establishing himself or would render relocation unreasonable.

5. The applicant stated at the hearing that if he relocated to another state in India where the police could not find him, if something happened to his family, he would have to go to them. In the event he had to return home, the police would find him because they continue to come to his house enquiring about him. I find that any desire to return home would not render relocation unreasonable, in the sense of practicable, as the claim that something would happen to his family is purely speculative, and he would potentially face the same situation if he were granted a protection visa in Australia.

6. I have considered all the applicant’s individual circumstances, as well as the cumulative impact of these circumstances, and I find that it would be reasonable for the applicant to relocate to another state in India to avoid the localised threat of serious harm that he faces in his home state of Punjab. Accordingly, I find that the applicant does not in the reasonably foreseeable future face a real chance of persecution (convention or non-convention related) in India from the police or anyone else. The applicant’s fear of persecution is not well-founded.

7. Considering the independent country information and the applicant’s circumstances, individually and cumulatively, I find that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm and that s.36(2B)(a) applies in his case. Accordingly, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.    

   Conclusions

8. 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).

9. 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).

10. 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

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

    Amanda Paxton
    Member

    
    
    

- Accessed24 June 2013.