1503662 (Refugee)

[2016] AATA 3673

1503662 (Refugee) [2016] AATA 3673 (11 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503662

COUNTRY OF REFERENCE:                  India

MEMBER:Tigiilagi Eteuati

DATE:11 April 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 11 April 2016 at 4:05pm

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

3. The applicant appeared before the Tribunal on 18 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Haryanvi and English languages.

4. In short, the applicant claims to fear persecution because of his membership of, or association with, Dera Sacha Sauda (DSS), an Indian spiritual group.

RELEVANT LAW

1. 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

1. 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).

2. 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.

3. 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.

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

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

1. 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’).

2. ‘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.

3. 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

1. 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.

CLAIMS AND EVIDENCE

1. The applicant made the following claims in his protection visa application:

   “44 Why did you leave that country?

   I LEFT INDIA FOR EDUCATION AND SAFE FUTURE FOR MYSELF SO I CAN BE OUT OF THAT POLITICAL CUM SOCIO-SPIRITUAL ORGANISATION GROUPS.

   45 Have you ever experienced harm in that country?

   Yes I do see harm to my life, if I go back to Haryana, India. Since I became a member of Dera Sacha Sauda in 2007 I was facing problems from our religious group therefore I left the country to study in Australia thinking it will settle down in few years.
    but situations are still not good per my information and updates of back home in my city and I would like to stay here to protect my life from all problems back home.

   Dera Sacha Sauda is a Socio-Spiritual Organization that preaches and practices humanitarianism and selfless services to others. The main center is located in Sirsa (Haryana). More than forty million people around the world are faithful followers of the this Organization. Dera's devotees learn to meditate and follow the principles laid down by Dera (Name of Organization)- His Holiness Beparawah Mastana Ji Maharaj founded Dera Sacha Sauda on April 29th, 1948 to encourage Spiritual awakening among the masses, to uplift humanity, and to create a better world.

   I am also not able to live in another state of India as well, since I don't know anyone outside my city and been out of touch.. I already borrowed lots of money from my parents for my study. they are not in a condition to help me financially any more.

   46 What do you fear may happen to you if you go back to that country?

   Now my life is in threat as I am a Hindu by birth and some extremist are very much against Dera Sacha sauda for political and religious reasons and many of Dera followers are Hindu and Sikh So Local leaders don't like them and there is always problem in Harayana and punjab. I live in Harayana and its my home town so therefore i am not able to go back and many member of Dera died since I left my state Harayana. I have been told by Sikh extremest to quit the group or face consequences.

   Now they know me as a member and thats why I left india to study Australia thinking by the time i finish my study, there will be no more problem. but since than nothing much changed rather it became worst as violence is continue between these 2 groups.

   I want to make a good use of my study and make bright future with my hard work and Social Service to people of all background and Nationality.

   47 Who do you think may harm/mistreat you if you go  back?

   Now I have been informed by my family that Sikh & Hindu extremest are still looking for me since I am a member of Dera group.

   I left India at first place to scape from the problem. Now time to time people get killed if they follow Dera group in Haryana and Punjab

   48 Why do you think this will happen to you if you go back?

   As I am a member of Dera Sacha Sauda since 2007. I left India 2009 and since then Conflicts between Dera members and Skihs became worse specially if you are converted or follow Dera Sacha Sauda Group and their philophesy. there are many member of Dera got killed by extremest.

   49 Do you think the authorities of that country can and will protect you if you go back?

   Its very political and religious issue government became very neutral for this issue. Local Authority don't want to take any hard steps against Sikhs or Hindu extremest. Since they are in Majority and we are (Dera Group Members) a minority group in India and specially in Haryana.

   Its also depend on the Government, Current Local Government in my state is very careful when dealing with communal groups and don't to support openly us due to political reasons.

   I am hoping this current Central government will do something and this will get better in future.”

2. The applicant did not attend the protection visa application interview scheduled by the Immigration Department.

3. At the hearing before the Tribunal the applicant claimed he was born in [his home town] in Karnal district in Haryana state in India. The applicant’s parents and [sibling] continue to reside in [his home town]. The applicant completed his final year of secondary school in [year] and arrived in Australia March 2009.

4. Initially, the applicant claimed that he left Australia because he wanted to leave DSS. The applicant said that he was a Hindu but also considered DSS his religion. Although the applicant’s claims were confused and somewhat contradictory, it appears that the applicant claims to fear harm from both Hindu and Sikh extremists, and from members of DSS for his involvement with DSS.

5. The applicant said that he started following DSS at the end of 2007 in around September or October. He said that he found out about DSS because he had heard people from his village discussing DSS and that at the time many people were joining. He said that his friend who was a member said he should join. The applicant claimed that Mastan Maharaj is a Sikh leader who is also the leader of DSS. He said he did not know when Mastan Maharaj became the leader.

6. The applicant initially said that he went to the DSS headquarters in Sirsa, Haryana two or three times with his friends. He then said that he went to the DSS headquarters in Sirsa on two occasions, once at the end of 2007 and once at the beginning of 2008. The applicant said that he did not return to the DSS headquarters after his visit in the beginning of 2008.

7. The applicant said that said he went to Sirsa from Karnal in his friends car. The Tribunal asked how long it took to drive there and he claimed that it took one and a half to two hours. Asked the distance from Karnal to Sirsa he said he did not know. The Tribunal indicated that the distance between Karenal and Sirsa is over 200km and that information accessed by the Tribunal (from googlemaps) provides that it takes over 4 hours to drive from Karnal to Sirsa.[1] The applicant maintained that he had travelled to Sirsa from Karnal by car.

   [1] >

   The Tribunal asked the applicant whether he was involved in any DSS activities when he visited Sirsa the first time in late 2007. He said that he attended the headquarters for three or four hours. He said he did not undertake activities but listened to Mastan Maharaj’s disciples. When asked the names of the disciples he said he did not know their names. The Tribunal asked the applicant where the DSS headquarters were located in Sirsa. The applicant said that he could not remember where the DSS headquarters were located in Sirsa.

8. The Tribunal asked the applicant whether he was involved in any DSS activities in 2008 when he visited the DSS headquarters in Sirsa. He said that he never undertook any activities but that he sat at the headquarters and listened to one of Mastan Maharaj’s disciples for one or two hours. Again the applicant said he did not know the name of the disciple or where the headquarters of DSS were located in Sirsa. He said that he did not know the name of the Ashram that he attended on both occasions.

9. The applicant was asked about his level of knowledge about DSS he said he did not know much about DSS, just what he heard on the two visits to Sirsa.

10. The Tribunal pointed out that Shehanshah Mastana Ji Maharaj founded DSS in 1948 but that he had not lead the organisation since 1960. The Tribunal asked the applicant whether he knew who took over the leadership in 1960 and he said he did not know. The applicant also said that he did not know who the current leader of DSS was.

11. The Tribunal asked the applicant whether he ever went to a DSS ashram in his home village. He said that he had not attended a DSS ashram in his village, was unsure as to whether there was a DSS ashram in his village and did not try to find out whether there was a DSS ashram in his village. The applicant said that he had only ever gone to the DSS ashram in Sirsa and had never attended another DSS ashram. The Tribunal asked whether his whole involvement with DSS was limited to two visits to a DSS ashram in Sirsa for a few hours on each occasion. The applicant agreed that this was the case.

12. The applicant said that he left India for Australia because he didn’t want to have anything more to do with DSS. When asked why, the applicant claimed that in Haryana there were people from different backgrounds and they were aggressive and sometimes started fighting one another. The applicant stated that Hindu and Sikh extremists were harming DSS members. The Tribunal reminded the applicant that his evidence was that he had no involvement in DSS while he was living in his village and that the extent of his involvement was two visits to a DSS ashram in Sirsa. The Tribunal asked why, in these circumstances, he thought he would be harmed. The applicant said that he just had a feeling in his heart that he may be harmed and that his friends and family were concerned that he would be harmed if he returned to India. The applicant said that he ‘just got scared’ that someone might give him a ‘hard time’.

13. The Tribunal asked again why he thought he would be harmed if he returned to his home village. The applicant then said that there were disciples of DSS in other places in India and there may be disciples of DSS in his village and they may recognise that he attended a DSS ashram in Sirsa twice and someone may harm him. He said he was just a bit scared that someone may recognise him and harm him. Asked who he was scared of he said “maybe members of DSS and maybe others”. Asked why the DSS members would harm him he said that DSS members had harmed people in the past. He said he did not know why they would harm him but he knows that DSS members had fought amongst themselves in the past.

14. The applicant said that he did not know who would harm him or why they would harm him but he was concerned that someone may harm him for some reason. The Tribunal said that without more, that may not be sufficient for the Tribunal to find that there was a real chance of him suffering serious harm and invited the applicant to respond. He said that he did not wish to respond.

15. The Tribunal asked whether he was a follower of DSS and he said that he was not. He agreed that he had never been a follower or a member but rather that he had been to a DSS ashram in Sirsa twice. The applicant said that he had nothing else to say.

16. The applicant was asked about his level of knowledge about DSS he said he did not know much about DSS, just what he heard on the two visits to Sirsa.

17. The Tribunal pointed out that Shehanshah Mastana Ji Maharaj founded DSS in 1948 but that he had not lead the organisation since 1960. The Tribunal asked the applicant whether he knew who took over the leadership in 1960 and he said he did not know. The applicant also said that he did not know who the current leader of DSS was.

18. The applicant said that no one had ever harmed him in India. The Tribunal asked whether he had ever been threatened and he said that he had not. The Tribunal asked the applicant why he had indicated in his application that Sikh extremists had threatened him, and the applicant said that this had never occurred.  The Tribunal pointed out that in his application form he had claimed that his family had informed him that Sikh and Hindu extremists are still looking for him since he was a member of DSS. The applicant admitted that the claim was not correct.

1. The applicant claimed that he came to Australia for a better life and brighter future, to go to school and because he had a ‘little bit fear’. He said that by contrast people in Australia are helpful and nice.

2. The applicant concluded his evidence by stating that he would be grateful if he was given a little bit of time to remain in Australia to get his affairs in order, meet his friends and visit a ‘few good places’ in Australia. He said that if he was given more time he would be happy to return to India, that it wasn’t a problem and that previously he just had a ‘little bit of fear in his heart that is all’.

   Dera Sacha Sauda

3. Dera Sacha Sauda came into existence in 1948 at Sirsa, in present-day Haryana, then part of the undivided state of Punjab within India. The organisation was founded by Shehanshah Mastana Ji Maharaj, a pious Sikh leader from Balochistan, with an eye to social reform and spiritual purification – among the Sikhs in particular, but also others in general.

4. The website of the DSS contains biographical information on the DSS founder Shehanshah Mastana Ji Maharaj, his successor, Pita Shah Satnam Singh Ji Maharaj, who took control of the DSS in 1960 and the current Guru, Gurmeet Ram Rahim Singh who took control of the organisation in September 1990.[2]

   [2] >

   The website of the DSS provides a list of 15 principles for DSS followers to observe. These principles include non-violence, meditation, hard work, vegetarianism, charity, abstinence from alcohol, and the rejection of usury, the dowry system, and discrimination on the basis of caste. In addition to these principles the website lists 47 “Principles of Jaam-E-Insan”.

5. The DSS website provides a list of the 40 DSS ashrams or spiritual centres in India. Of the 40 ashrams listed, 19 are located in Haryana; ten in Rajasthan; five in Punjab; two in each of Chhatisgarh and Maharashtra and one each of Madhya Pradesh, and Uttar Pradesh.

6. Country information from the Research Directorate of the Immigration and Refugee Board of Canada advises[3]:

   “The website of the Dera Sacha Sauda (DSS) indicates that the DSS is a "socio-spiritual" organization founded in 1948 that "preaches and practices humanitarianism and selfless services to others" (n.d.a). According to the website, DSS followers "learn to meditate and follow [DSS] principles" (DSS n.d.a). The BBC describes the organization as a "multi-religious sect" (BBC 16 Dec. 2009), while other sources refer to it as a "cult" (Panthic.org 3 Jan. 2011; The Economic Times 26 Jan. 2012; The Times of India 23 Jan. 2012), "religious sect" (The Tribune 18 Oct. 2011), or "controversial sect" (Hindustan Times 26 Feb. 2012). The headquarters of the organization are located in Sirsa, Haryana (DSS n.d.a; Hindustan Times 28 Nov. 2011).

   The DSS leader is Saint Gurmeet Ram Rahim Singh, who is also known as Guru Ji (DSS n.d.b).

   The BBC reports that followers are predominantly from "lower caste Hindus, Muslims and Sikhs across the states of Punjab, Haryana, Uttar Pradesh and Rajasthan" (16 Dec. 2009). According to the Hindustan Times, the DSS has "significant support" in several districts of the Malwa region and a "limited" influence in the Doaba and Majha belts (28 Nov. 2011). India's financial newspaper, The Economic Times, notes that 3,500,000 or 70 percent of "devotees" are in Malwa and the rest are in Doaba and Majha (26 Jan. 2012). According to the DSS website, there are about forty million DSS followers around the world (n.d.a).

   The DSS is known for its fight against drug and alcohol abuse, its "green campaign" (Hindustan Times 17 Jan. 2012; ibid. 18 Jan. 2012), and its campaign to stop the spread of the HIV virus (BBC 16 Dec. 2009). As part of its 2009 HIV campaign, more than 1,000 DSS members, following a call from the DSS leader, "signed pledges to marry … sex workers" in order to "stop the women from being exploited" (ibid.). In 2012, DSS followers donated hundreds of bodies to medical educational institutions, which helped to "provide better medical education to students" (Hindustan Times 11 Feb. 2012).”

   [3] India: Treatment of Dera Sacha Sauda practitioners by political parties, society and government authorities (2009-April 2012). Research Directorate, Immigration and Refugee Board of Canada, Ottawa. 4 May 2012.

7. It is also clear from the same source that there have been clashes between Dera Sacha Sauda followers and Sikh organisations:

   “Several sources report conflicts between DSS followers and Sikh organizations (The Times of India 7 Mar. 2011; Hindustan Times 26 Feb.

   2012; Punjab Newsline [3 Jan. 2011]). The Times of India reports that the DSS leader has been a target of "Sikh wrath" ever since he dressed up as Sikh guru, Gobind Singh, in 2007 (26 May 2009). Sources state that actions have been taken by the police to protect DSS members (ibid. 7 Mar. 2011; Punjab Newsline [3 Jan. 2011]; Panthic.org 3 Jan. 2011). For instance, the Times of India reports that two persons were seriously injured as a result of a clash between Sikhs and DSS followers in March 2011 in Dhale Ke village of Moga district (7 Mar. 2011). The police force was deployed to control the situation (The Times of India 7 Mar. 2011.).

   Panthic.org, an online Sikh news agency (Panthic.org n.d.), stated in January 2011 that the police arrested Sikh preacher Baba Baljeet Singh Daduwal after DSS followers expressed concern that he would speak against their leader Gurmit Ram Rahim during a speech Baba Daduwal was to give in Bhikhi town of Mansa district (ibid. 3 Jan. 2011). The article claims that the Punjab Government, which is led by the Akali Dal party and its leader Badal, "has again, come up openly in support of the DSS cult" (ibid.). The arrest of Baba Daduwal resulted in a confrontation between Sikhs and DSS followers (Punjab Newsline [3 Jan. 2011]). After the unrest, the police charged 61 Sikhs and arrested 57 of them (Panthic.org 3 Jan. 2011).

   Sources report that, in October 2011, a court acquitted 14 DSS members charged with killing a Sikh in 2008, because of a lack of evidence (The Tribune 18 Oct. 2011; The Times of India 18 Oct. 2011; ibid. 10 Nov. 2011).

   In January 2012, after a court handed down a verdict of 10 years' imprisonment to Bharpoor Singh and his son for killing a DSS member, "many Sikh organisations have decided to boycott the ruling" (Hindustan Times 21 Jan. 2012). Sikh organizations claimed that the accused were "scapegoats" and that the government "engineer[ed] the sentence by incorporating wrong statements in the police inquiry" in order to "please the dera followers because elections were near"

8. The Tribunal is not aware of country information indicating that ordinary supporters of Dera Sacha Sauda currently face a real chance of persecution or a real risk of significant harm from Sikh or other religious or community groups as a consequence of their support for Dera Sacha Sauda, and the applicant has not provided information or comment to suggest that he is involved in activities that might result in him being targeted should he return to India. In this regard, the Tribunal has considered the following advice in the DFAT Country Information Report regarding the Dera Sacha Sauda, and taken into account that the advice does not indicate that DFAT considers Dera Sacha Sauda members generally are targeted for persecution amounting to serious harm or face a real risk of significant harm:[4]

   “The Dera Sacha Sauda (DSS) organisation is a non-profit social welfare and spiritual organisation, founded in 1948 and headquartered in Haryana. The DSS reportedly has 40 to 50 million followers worldwide (including in Australia). The DSS cites its key principles as: secularism; equality; anti-materialism; truth and faith; meditation; strict individual discipline; strict social discipline; and hard work. The organisation has undertaken a number of environmental and cleanliness campaigns throughout India, and has also been active in supporting disaster relief. However, the DSS sparked controversy in February 2015 when reports emerged that 400 members of the group had self-castrated since 2000 after being told by the group's leader, Gurmeet Ram Rahim Singh, that doing so would enable them to meet God directly. While alleged threats against the victims had prevented them from speaking out against Ram Rahim previously, an investigation into the affair is now underway, headed by India's Central Bureau of Investigation.”

   [4] Australian Department of Foreign Affairs and Trade. DFAT Country Information Report, India, 15 July 2015.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. The Tribunal finds the applicant is a national of India. He provided a copy of the identity information pages of his Indian passport to the Department. The applicant made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against India for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the village in which he last lived to be his home region. As the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious or significant harm, if he returned to India, it is unnecessary to determine whether the applicant has a right to enter and reside in Nepal under the India-Nepal Treaty of Peace and Friendship.

4. The Tribunal notes that the applicant’s claims changed significantly during the hearing from the claims in his application. Even during the hearing, the applicant’s claims appeared to change significantly from the beginning to the end of the hearing.

5. Initially, the claim appeared to be that the applicant feared harm from Hindu and Sikh extremists and DSS members because he was a member of DSS. The applicant had claimed that he had been threatened by extremists for his membership of DSS and that his family had told him that extremists were still looking for him for his involvement in DSS.

6. During the course of the hearing the applicant demonstrated that he knew almost nothing about DSS, admitted that he was never a member of DSS, and that he feared harm simply for having visited a DSS ashram in Sirsa that he could not name on two occasions. The applicant had, by this stage also admitted that he had never been harmed or threatened by anyone on account of his membership of, or association with, DSS.

7. The Tribunal accepts the applicant’s admissions at the hearing and is not satisfied that the applicant was a member or follower of DSS. The Tribunal also accepts the applicant’s admissions at the hearing that the applicant had never been harmed or threatened in India. The Tribunal therefore does not accept that the applicant would be harmed for being a member or follower of DSS if he returned to India.

8. The Tribunal does not accept that the applicant visited a DSS ashram in Sirsa. The Tribunal therefore does not accept that the applicant would be would be harmed for any actual or imputed association with DSS if he returned to India. The Tribunal’s finding that the applicant has never visited a DSS Ashram in Sirsa is supported by the applicant’s inability to name the Ashram or its location within Sirsa. Further, the applicant stated that it took one and a half hours to travel to Sirsa from Karnal by car whereas the information accessed by the Tribunal, which the Tribunal accepts, indicates that it takes around 4 hours, over twice the time indicated by the applicant.

9. The Tribunal finds that the applicant has no subjective fear of returning to India. The Tribunal’s finding that the applicant has no subjective fear of persecution in India is supported by his concluding comments that if he were given a little longer in Australia he would be happy to return to India. The finding is also supported by the applicant’s admission at the hearing that the claims he made in his application that he was a member of DSS, that he had been threatened by extremists and that his family had told him that extremists were still looking for him, were untrue. The applicant admitted that he had never been harmed or threatened in India for membership of DSS and that he was never a member of DSS.

10. After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively. For the reasons mentioned above, the Tribunal finds that there is no real chance that the applicant would suffer serious harm if he returned to India. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to India. Therefore, the applicant does not satisfy the requirements of s.36(2)(a). 

11. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.  

12. For the reasons set out above, the Tribunal is not satisfied, on the evidence before it, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant does not meet the requirements of s.36(2)(aa).

CONCLUSIONS

1. 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).

2. 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).

3. 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

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

Tigiilagi Eteuati
Member