1507290 (Refugee)

[2018] AATA 3457

1507290 (Refugee) [2018] AATA 3457 (25 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507290

COUNTRY OF REFERENCE:                  India

MEMBER:Peter Vlahos

DATE:25 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 25 July 2018 at 5:27am

CATCHWORDS

Refugee – Protection visa – India – Political opinion – AKAL DAL (Amritsar) activist – Khalistan separatism – Religion – Sikh – Physical violence – Detention – Torture – Fear of killing – State protection – “Person of interest” list – Refoulement – Internal relocation – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 91S, 499

Migration Regulations 1994 (Cth), Schedule 2

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 and Border Protection 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 on 30 April 2013 and the delegate refused to grant the visa on 5 May 2015.

3. The applicant appeared before the Tribunal on 23 August 2017 to give evidence and present arguments.

4. The Tribunal was conducted in the English language without the assistance of any foreign language translators present.

5. The applicant had no witnesses present at the hearing wishing to give evidence.

6. The applicant was not represented by a legal representative or registered migration agent.   

   RELEVANT LAW

7. 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

8. 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).

9. 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.

10. 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.

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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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. 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

17. 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’).

18. ‘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.

19. 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

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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 issue in this case is case is whether Australia has protection obligations in respect of the applicant, [named] and for the following reasons as provided for herein this decision the Tribunal has decided that the decision under review should be affirmed.

    Country of Nationality and the identity of the applicant

22. Based on the copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection, the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of India and have assessed claims against that country in relation to ss. 36(2) (a) and 36 (2) (aa) of the Act. On the basis of the abovementioned evidence, the Tribunal further accepts and finds the applicant’s identity is as he claimed.

    Migration and personal background of the applicant

23. The applicant provided the following personal and migration information:

    §His is a Sikh

    §He belongs to the “ethnic group” which the applicant described as the “Khalistan group.”

    §He lived with his family at his family’s home in [his home town] from birth until he left the Punjab to come to Australia in 2009.

    §He completed [school] and studied English in India.

    §He did not work in India but was supported by his parents.

    §He was granted a [Student] visa on 9 April 2009 that expired on 30 November 2011.

    §He arrived in Australia [in] April 2009.

    §He has lived in [specified Australian locations].

    §He has worked in [City 1] at [a business] and while in [Town 1] as [a specified role].

    §He returned to India from [December] 2010 and remained there, until [February] 2011.

    §He married [his wife] [during his return visit to] India.

    §He was in Australia from [February] 2011 until [April] 2011.

    §He returned to India [in] April 2011 and remained there until [September] 2011.

    §He applied for a [different temporary] visa on 24 November 2011 that was refused on 18 July 2013.

    §He applied for a Protection visa on 30 April 2013.

    §He has not applied for any other visas or sought asylum in other countries.

    §He declared not having permission to live in any other country.

    The applicant’s claims for protection

24. The applicant’s claims[1]submitted to the Department as part of this application for a Protection visa can be summarised as follows:

    [1] Refer to Department of Immigration and Border Protection File No. [number] Folio no. [48]-[51]

    §He feared for his life in India because he was an activist with the “AKAL DAL (Amritsar)” fighting for Sikh rights.

    §He was tortured because he chose to express his political opinion and for his involvement in the AKAI DAL which is [a political organisation] working for the human rights of Sikhs and is working to expose the untold violations and atrocities committed on Sikhs by the Punjab State Police.

    §If he returns to India he believes he would be detained, imprisoned and tortured and eventually killed because of his political opinion and as being a member of a particular social group – the AKAL DAL – the political party and because he is an activist.

    §He fears that harm will be caused to him if he returns to India by the Punjab Police and by the Punjab State government which is opposed to the AKAL DAL.

    §He fears the attention of the state and Indian governments would be concentrated upon him because of his political opinion and activities [if he returns to India] first, a member of the AKAL DAL and a supporter of a “separate state – known as ‘Khalistan’”. Second, as a sponsor of a book describing the atrocities and crimes committed against Sikhs in the Punjab by state agencies and certain personalities.

    §He also promoted a film while in Australia called – [film name] which is banned in the Punjab but was shown in Australia.

    §He believes he cannot be provided with any state protection in India because the state authorities together with the current government do not follow the rule of law. The police and the judiciary are all corrupt and are compliant to the government.

    Personal background of the applicant

25. The applicant [named] was born in the town of [home town], in the State of Punjab and is a Sikh by faith. He has family in India which consists only of his father who suffers from a severe [medical] condition (aged [age]). His father is not employed and is living on his own. There are no siblings. The applicant completed all of his education in the Punjab. He married [his wife] in 2012 and divorced in 2015. The marriage produced no children. The applicant decided to pursue further studies in Australia in 2009 and was granted a student visa which allowed him to study at [College 1] in [City 2] – his course of study being, [Field 1]. This course, the applicant told the Tribunal was a for a period of “six months…” and after he completed it – he had qualified for a “Diploma” in “[Field 1].” He then migrated to [City 1] at the end of 2009 and decided to study for a Diploma in [Field 2] at [College 2]. The applicant claimed that he completed his studies at this education institute but that [the College 2] owners “demanded money…” but “…no certificate was provided…” in return for the applicant paying his course’s tuition fees. The applicant stated that he completed his studies for his diploma in [Field 2] in January or February 2012.  

26. The applicant also stated that he returned to India [in] December 2010 and returned to Australia [in] February 2011 to marry his now former wife, [named]. Once the marriage had been held, the applicant returned to Australia in February 2011withiout his wife. Once in Australia, the applicant proceeded to have discussions with his college concerning the progress of his studies for his “…certificate…”

27. Then, his mother (now deceased) fell suddenly ill and the applicant returned to India [in] April 2011 and remained there until September 2011. The Tribunal was also told that when he returned to India in April 2011 – he did so with the “…intention to live there permanently….”

28. The applicant stated that on that occasion (being in India) he had decided that he would live with “his wife’ and ‘her family’.

    What did the applicant do while he was in India?

29. While in India, the applicant told the Tribunal that he met the “AKALI group” through the good offices of his wife’s [Relative A]. Following this meeting, the applicant stated that it was through ‘discussion’ with his wife’s [Relative A] that he came to hear about the “Khalistan movement….”and the applicant decided to join this group and to participate within its organisations together with other like-minded Sikhs. Later, the applicant claimed that he involved himself with this political group in the local elections – doing “…many things” and he came to the attention of the local police after he was reported to the police by some locals who did not approve of his activities and opinions. Accordingly, the Tribunal was told that the local police told the applicant to “….remain quiet….” And not “….to involve himself in any local political activities” or if he did, “….he would have to leave the Punjab….” When the applicant’s parents heard about the police warnings, they feared for the applicant’s wellbeing. Thereafter, the applicant remained in his village for two months and after speaking with a friend in Australia who was also involved in AKAL DAL movement, the applicant organised a ‘…ticket’ and left India from New Delhi for Australia in September 2011.

    Was the applicant an activist and member of the political group Akal Dal?

30. The applicant stated that he was a ‘member of the AKAL DAL’. He also told the Tribunal “….I must be….” The applicant also went on to tell the Tribunal that he had been a ‘member’ of a “Sikh organisation” when he lived in [Australian City 3].

31. The applicant once in Australia applied for temporary residence. He also told the Tribunal that while in Australia, he wanted to do more for the ‘movement.’ He read a number of books on the plight of the Sikh peoples of India and in particular, in the Punjab and he wanted to remain in Australia to work for the AKAL DAL Party.

32. While in Australia, the applicant told the Tribunal that he was working with others collecting ‘information’ about the plight of the Sikh people in India. This information (according to the applicant) involved the dissemination of evidence of brutalities committed by the central and state government authorities in India against the Sikhs of the Punjab. This publication also contained (according to the applicant) – ‘who’ – the ‘people who disappeared’ in 1984 and after that each public protest following the Indian military’s assault on the Golden Temple.

33. The Tribunal was told that this ‘….publication’ was published ‘….electronically….’ on the internet and it was later ‘….blocked….’ by the Indian authorities. After the authorities’ intervention on the internet, ‘copies of the book’ were despatched to India for distribution but were seized. The applicant’s email account used to monitor the distribution of the book in India was also ‘…hacked…’ and no longer in operation or accessible.

    Other activist involvement while the applicant was in Australia

34. The applicant stated that while here in Australia he has been involved with the Sikh question. He told the Tribunal that ADP’s party secretary, [named] visited Australia and (according to the applicant) was told that the applicant’s ‘….name’ still appeared in ‘….local police records….’ The applicant also told the Tribunal that the authorities knew that he was ‘….collecting money….’ At Sikh temples in Australia and sending those funds to India to assist Sikh families in distress.

    Why is the applicant afraid to return to India?

35. The applicant fears that his life would be in peril if he was to return to India. The Tribunal was told that the ‘National Congress’ is dangerous and according to the applicant, over six hundred innocent people have been extra-judicially killed. The applicant also fears to return to his home province of the Punjab. He described the situation in the Punjab as a ‘place where Christians and Sikhs are being killed….’

36. As a result of the applicant’s activism in Australia which was known to the authorities in India, he believes that he is and remains a ‘….person of interest….’ To the Indian police and security forces.

    What has the applicant been doing while in Australia?

37. The Tribunal stated that when he had a student visa he did very little work. Currently, he has made an application to the Department for the allocation to him of ‘work rights.’ That matter has not yet been finalised. The applicant also said that while he has been in Australia, he has ‘survived….’because of the support he had been provided with by his close friends. That support included money, food and accommodation. The Tribunal was also told that he had been supported with his living expenses by the Sikh organisation which is situated at [a named town].

    The applicant’s political beliefs have continued to be relevant while in Australia.

1. The Tribunal was told that the applicant still holds strongly to his political views about the rights of the Sikhs in India. The applicant stated that the Sikh has a different religion from other Indian citizens who are Muslim, Christian or Hindu. Indeed this ‘….difference…’ has made a greater number of Sikhs to be conscious of their religious and ethnic identity to the point of being militant. Therefore, it is only to be expected that Sikhs generally would support (as the applicant did) the idea of a separate state of ‘Khalistan’ which should be established by the year 2020. The applicant went on to state that the idea of an independent Sikh state had “…overseas support….”He also told the Tribunal that ‘Khalistan’ would be independent from India and the current state of Punjab and would be governed by Sikh. In India, according to the applicant, the Indian police and security forces monitor supporters of ‘Khalistan’ and have detained supporters.

2. The applicant made references to the formation of a political party known as “SAD” (the ‘Shiromani Akali Dal’) which was launched in 1984 and his interest in that party’s political activities. The Tribunal was told that ‘SAD’ has a number of prominent leaders but has gained very little in seats in the Lok Sabah (National Parliament) and in the Legislative Assembly of the Punjab state Parliament. This political party has been struggling to survive since its formation.

3. The applicant has not in recent times involved himself in any ‘political activities’ via social media or ‘Facebook’.

   The applicant’s personal problems with his former wife and his future concerns

4. The applicant said that his former wife’s family who disapproved of his political activities had caused him problems with his relationship with his wife and this eventually led to his marriage failing. The applicant went on to tell the Tribunal that his wife’s [Relative B] had ‘….reported…him and his activities…’ to the authorities. He went on to say, that he was reported to the authorities (by [Relative B]) in 2013 and again, in 2016 when there was a ‘…religious book burning in India…’ which according to the authorities it had ‘….been organised by persons living in Australia.

5. The Tribunal was told that the authorities had asked the applicant’s father about the applicant’s whereabouts.

6. These ‘enquiries’ by the police concerning the applicant’s whereabouts have caused the applicant to have ‘fears’ about returning in the reasonably foreseeable future to India. The Tribunal was told that if he (the applicant) returned to India he would be located, detained and even “…tortured….”by the authorities because of “….his past activities….” – supporting the Sikh peoples’ national aspirations.

7. The applicant stated that he has outstanding issues with his wife’s family involving unpaid sums of money as a ‘dowry’ in the amount of [amount] Lakhs of Indian rupees. The sum of [amount] Lakhs was provided in the past by the applicant’s father. The dispute between the two families has continued because his former wife has been difficult and has persuaded her [Relative B] to take the dispute over the dowry money (she claims is still outstanding) to the courts.

   Possibility of ‘relocation’ by the applicant to another region or city of India other than the Punjab

8. Finally, the Tribunal asked the applicant whether if he was to return to India in foreseeable future could he not find safety if he felt threatened by the state authorities in the Punjab and by his former wife and her family in another part of the Indian Sub-continent. The Tribunal was told that ‘relocation’ was not an option he would consider because it was very difficult for minorities in all parts of India.

   Concluding comments by the applicant

9. The applicant considers himself a Sikh political activist and a ‘person of interest’ to the Indian authorities. He believes in the cause for the establishment of a separate Sikh ‘state’ of ‘Khalistan’ and supports the holding of a ‘referendum in 2020’ to achieve that purpose. There is continued unrest in the Punjab. He could not live in the Punjab because daily life for any minority is difficult.

   Time for further evidence and submissions to be provided to the Tribunal

10. The applicant was provided with a period of time (until, 30 August 2017) to provide any documents and further submissions on any matters he raised during the hearing.

    Further Documents submitted post-hearing to the Tribunal

11. The applicant provided the following information to the Tribuanl for its consideration:

    §Letter dated [in] April 2013 written by [name], President of the [a Sikh organisation] stating that the applicant was a member of SAD (Amritsar).[2]

    §Letter from the political organisation, SAD confirming the applicant’s political involvement and his risks he would encounter with the authorities if he returns to India. [3]

    §Medical reports – reporting on the current state of the applicant’s health.[4]

    §Medical reports of the applicant’s father. [5]

    §Affidavit dated 28 August 2017 deposed by the applicant’s father attesting to the applicant’s marital problems.[6]

    §Attached to the applicant’s father’s affidavit was a copy of a court judgement concerning the applicant’s divorce from his wife – granted [date].[7]

    COUNTRY INFORMATION

    [2] AAT File no 15707290 Folio no. [82]

    [3] Ibid

    [4] Ibid Folio [76]-[81]

    [5] Ibid Folio [73]-[74]

    [6] Ibid Folio [71]

    [7] Ibid Folio [34]-[44]

    Sikhs in the Punjab and India – politics of separatism – militancy and intercommunal violence

12. In considering its decision, the Tribunal referred to the following information which available on the current situation in the State of Punjab and on the plight of Sikhs generally within India from the Department of Foreign Affairs and Trade in its Thematic Report on the Punjab, of 7 December 2016:

    Sikhs in the Punjab – Recent History[8]

    [8] Department of Foreign Affairs and Trade (DFAT) Thematic Report – Indian State of Punjab, at pp.4-5

    2.1 Punjab is a small, but densely populated, state in the north-west of India. It shares borders with Pakistan to the west, Jammu and Kashmir to the north, Himachal Pradesh to the east, Haryana to the south and south east and Rajasthan to the south west. Most of the state consists of a fertile alluvial plain with several rivers and an extensive irrigation system. There is a range of small mountains and hills in the north east of the state, near the foot of the Himalayas. Ludhiana is the largest city with around 1.6 million people, followed by Amritsar (1.2 million), Jalandhar (0.9 million) and Patiala (0.4 million). The union territory of Chandigarh has around one million people.

    2.2In 1947, the region known historically as the Punjab was split between the newly independent nations of Pakistan and India. This division led to the displacement of millions of people, as Sikhs and Hindus moved east into India and Muslims west into Pakistan. This tumultuous event resulted in the deaths of many thousands of people. Following a Sikh campaign for a separate Punjabi-speaking state within India, the Indian state of Punjab was split in 1966 into the Hindi-speaking state of Haryana and the Punjabi-speaking, Sikh-majority state of Punjab. The newly designed city of Chandigarh became a federally-run union territory and was designated the administrative capital of both Punjab and Haryana.

    2.3Despite the creation of the state of Punjab, some groups continued to demand a sovereign Sikh state, known as ‘Khalistan’. Some pro-Khalistan groups advocated for armed struggle to achieve these aims. During an internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Harmindir Sahib (Golden Temple) complex in Amritsar. In June 1984 the Indian army carried out an attack in an attempt to remove Bhindranwale and his followers. The Golden Temple itself was largely undamaged in the battle, but other buildings in the temple complex, including the Akal Takht (‘Throne of the Timeless One’, one of five seats of Sikh doctrinal power), were damaged extensively by fire and shelling from Indian Army tanks. The official death toll from ‘Operation Blue Star’, as it was known, was 83 Indian army personnel and 492 activists, although unofficial estimates put the death toll as high as several thousand people. Bhindranwale was killed in the operation.

    2.4In retaliation for Operation Blue Star, Prime Minister Indira Gandhi was assassinated by her Sikh bodyguards in her compound in New Delhi in October 1984. In the days that followed, crowds seeking revenge for the assassination attacked Sikh homes and businesses across the country, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence.

    2.5Over the course of the next decade, Indian security forces carried out further operations to suppress Sikh separatism, during which there were credible allegations of torture, extrajudicial killings and deaths in custody carried out by security forces, including in Punjab. Despite the allegations of wrongdoing, these operations, along with the successfully-held state elections in the 1990s and 2000s, helped to diminish support for armed struggle and separatism.

    2.6A number of official inquiries were undertaken following the 1984 riots, and charges were brought against those suspected of instigating and being involved in the anti-Sikh violence. In April 2013 the then-Minister of State for Home Affairs, Mullappally Ramachandran, said 3,163 people had been arrested, 650 cases registered and 442 people convicted for their roles in the riots. Prosecutions continue against several of the accused, including a former Congress Party Union Minister, Jagdish Tytler. Nonetheless, there are continuing claims that many of those responsible for the 1984 riots and perceived wrongdoings during the security operations in the years that followed have not been brought to account. Sikh groups continue to advocate for courts to retry previously-dismissed cases. Some Sikh groups also advocate for restorative justice, such as a truth and reconciliation commission. There is an underlying sentiment within the Sikh community that many of those responsible for the events of 1984 have not been brought to account. This still plays a significant role in the perception of some Sikhs in India—and particularly in the Punjabi expatriate community in western countries—that they face ongoing discrimination and a risk of violence.

    Security Situation in the Punjab[9]

    [9] Ibid DFAT report at pp.8-9

    2.26Punjab experienced high levels of violence and unrest during the 1980s and early 1990s, when armed secessionist groups clashed regularly with authorities. This period in the state’s history, including the 1984 confrontation at the Golden Temple in Amritsar, is often invoked by some sections of the Sikh community in Punjab, as well as the Sikh diaspora, to claim that human rights violations were committed by state and central government authorities. Since the early- to mid-1990s, successive governments have taken a stronger stance on security issues, largely eliminating domestic pro-Khalistan terrorist groups within the state.

    2.27Nonetheless, security incidents can occur, especially arising from Punjab’s borders with Pakistan and the state of Jammu and Kashmir. In July 2015, three gunmen attacked a bus and a police station in Gurdaspur District, killing seven people (including four police personnel) before being killed by authorities. The Gurdaspur District is close to the India-Pakistan border and also to Jammu and Kashmir. Pakistani terror group Lashkar-e-Tayba has been blamed for the attack. On 2 January 2016, six gunmen attacked the Pathankot military base, 25 kilometres from the Pakistani border. Seven Indian military personnel were reportedly killed, with around 20 other wounded. Pakistani militants are suspected of carrying out the attack, which lasted for several days before the six gunmen were killed.

    2.28Despite the occurrence of some incidents such as the isolated examples outlined above, DFAT assesses that the overall security situation in Punjab is generally calm and that the general population faces a very low risk of violence or property or other damage.

    Political Situation in the Punjab[10]

    [10] Ibid at p.13

    2.24The current state government in Punjab, elected in 2007 and re-elected in 2012, is a coalition of two parties: Shiromani Akali Dal (SAD), the senior partner, and the Bharatiya Janata Party (BJP), the junior coalition partner. SAD is a primarily Sikh-based regional party that was actively involved in the movement to create a separate Punjabi-speaking state in northern India, a goal which was achieved in 1966 with the creation of the Sikh-majority Punjab State. The BJP grew rapidly in the 1990s on a Hindu nationalist agenda and is currently the ruling party at the federal level; the BJP holds a majority of seats in the lower house of the national parliament, and is the party of Prime Minister Narendra Modi. In the 2012 state election, SAD and BJP won 56 and 12 seats respectively in the 117-seat assembly, enabling the two parties to continue their coalition and retain government. The main opposition party, the Congress Party, won 46 seats, and independents won three. Subsequent by-elections held since 2012 have increased the number of seats held by SAD to 60, with BJP retaining its 12 seats. While this means that SAD now has an absolute majority in its own right, it remains in coalition with the BJP. The coalition government is led by Chief Minister Parkash Singh Badal, whose son, Sukhbir Badal, is the Deputy Chief Minister and president of the SAD. It is the fourth time that Parkash Singh Badal has held the position of Chief Minister of Punjab. The next state elections are due to be held in 2017.

    2.25Elections in Punjab are generally free and fair and vigorously contested; opposition parties are generally able to freely campaign and put forward their views. Opposition parties are often quoted at length in the media when they criticise government policy, and credible interlocutors (including academics and media representatives) told DFAT that they are comfortable that they can publicly criticise the government without fear of harassment or detention.

    Religion[11]

    [11]Ibid at p. 10

    3.3Article 15 of India’s Constitution prohibits discrimination against any citizen on the grounds of religion. Article 25 guarantees the right to freely profess, practise and propagate religion (subject to ‘public order, morality and health’) and Article 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. According to the US State Department’s 2014 report on religious freedom—the most recent report available—there are no requirements for registration of religious groups in India, and the law provides minority community status for six religious groups: Muslims; Sikhs; Christians; Parsis (also known as Zoroastrians); Jains; and Buddhists. Minority community status confers certain rights such as the right to establish and administer educational institutions. Under Explanation II of Article 25(b) of the Constitution, Sikhism, Jainism and Buddhism are not recognised as separate religions, but instead are considered part of Hinduism. While other religious groups (including Hindus, Christians, Parsis and Muslims) have legally-recognised personal laws governing personal matters such as marriage, divorce, adoption and inheritance, Sikh matters largely fall under Hindu laws, although there are separate rules for Sikh marriages. The lack of constitutional recognition of Sikhism in particular is a source of dissatisfaction within Sikh-majority Punjab.

    3.4In practice, religious diversity is broadly accepted in Punjab. Interfaith marriage does occur, particularly between Sikhs and Hindus, and typically happens without major protest from either group. However, these marriages can cause familial tension resulting in the loss of property inheritance rights. Inter-faith marriages involving Muslims are less common. Punjab has a relatively small Muslim population, which experiences considerable social and economic disadvantage, much like Muslim communities across India (this is exacerbated in Punjab by its proximity to Pakistan and the state of Jammu and Kashmir). Hostility against Muslims across India links back to the traumatic process of India’s division in 1947.

    3.5Although some sporadic violent incidents can occur, there is little religious-based community violence in Punjab. For example, in October 2015 some damaged pages of the Guru Granth Sahib (the Sikh holy text) were found near a Sikh temple (or Gurdwara). It is unclear who was responsible for damaging the text. Protests against the ‘desecration’ of the text were subsequently held in a number of villages and cities across Faridkot District. Two protesters were reportedly killed in Behbal Kalan village when police opened fire to disperse the protesters. In addition to the two deaths, a further 82 people (including 12 police) were injured and several vehicles torched across Faridkot during the protests, which lasted several days. The police response, which included baton charges as well as the use of firearms, was seen by some in the Sikh community to be disproportionate. An official commission of inquiry into the incident has not yet reported its findings.

    3.5DFAT assesses that violent events involving religion are rare and are not representative of a generally peaceful environment in Punjab. DFAT assesses that people in Punjab face a low risk of violence on the basis of their religious beliefs. DFAT further assesses that, while people in Punjab often face minor levels of societal discrimination on the basis of their religion, this discrimination rarely escalates to significant levels, and rarely involves the targeting of people of particular religious groups. DFAT assesses that societal discrimination on the basis of religion typically takes the form of positive discrimination in favour of one’s own religious group. Furthermore, DFAT assesses that religion is often not the sole motivation for societal discrimination, which typically involves a complex mix of religious, linguistic, caste and class issues.

    Sikhs[12]

    [12] Ibid at p.10

    3.8Some in the Sikh community continue to resent the perceived lack of accountability for the confrontation at the Golden Temple in 1984 and the subsequent period of separatist militancy, as well as the lack of prosecutions for those responsible for killing Sikhs in the wake of Indira Gandhi’s assassination (see ‘Recent History’ above). This underlying tension manifests itself in strong public advocacy for greater accountability for these events, both in Punjab and in the expatriate Sikh community in western countries, but rarely if ever translates to organised violence. A small number of Sikhs continue to advocate for a sovereign Sikh state of Khalistan. Police claim to have thwarted a planned attack on the New Delhi Commonwealth Games in 2010 by a pro-Khalistan group. However, such incidents are very rare, and multiple credible sources told DFAT that there is no appetite amongst the Sikh community in Punjab for a separatist movement or a return to militancy, which had significant impacts on the Punjabi economy.

    3.9Many Sikhs have held high office in India, and particularly in Punjab. The Sikh-based Shiromani Akali Dal political party is currently the senior coalition partner in government in Punjab. The Chief Minister, Parkash Singh Badal, is Sikh (as is his son, the Deputy Chief Minister) and is currently serving his fifth term as Punjab’s Chief Minister. Former Prime Minister Manmohan Singh is a Sikh, and several Sikhs have held high positions in the central government. Sikhs have long enjoyed a disproportionately high representation in the Indian Armed Forces, although only two Sikhs have held the powerful position of Chief of Army Staff.

    3.10DFAT assesses that Sikhs in Punjab have no higher risk of religious-based official or societal discrimination or violence than that faced by people from other religious groups.

    Political Opinion[13]

    [13] Ibid at p.13

    3.17A vigorous, democratic environment exists in Punjab (see ‘Political System’, above). Opponents of the government are able to voice their opposition without fear of repercussions. Protests are often held, on a range of issues, and are typically peaceful. Occasionally protests can turn violent and provoke a strong response from authorities, such as the Sikh protests in Faridkot District in October 2015 (see ‘Religion’ above). DFAT assesses that such incidents are rare in Punjab, and that political activists who strongly criticise their opponents—be they in government or opposition—face only a low risk of violence or discrimination on the basis of their political views.

    3.18A number of people from the Sikh community, both in Punjab and in expatriate Sikh communities in western countries such as the US, Canada, the UK and Australia, continue to protest the ongoing detention of a number of Sikhs in India, claiming that these people are being held as political prisoners. These protests include hunger strikes. According to Sikh rights groups which spoke to DFAT in preparation for this report, more than 80 Sikh prisoners have been held for long periods of time and have not been granted parole despite being eligible. DFAT understands that these prisoners have been convicted of serious crimes, including murder, largely during the period of active separatist militancy during the 1980s and 1990s. While these prisoners—having served more than the minimum sentence required under the law—may be eligible for parole, and noting that parole is quite commonly granted in Punjab, a life sentence under the Indian Penal Code means the person convicted can legally be held for the remainder of their natural life. While there are legal provisions for this sentence to be commuted, there is no legal requirement for this to occur. Some activists claim that parole is granted to others but not to Sikhs; DFAT is not aware of any evidence of systematic discrimination against Sikhs in this regard. DFAT notes that several Sikhs convicted of terrorist bombings in the early 1990s have recently been paroled. These include Devinder Pal Singh Bhullar, who was convicted of the 1993 Delhi bombings which killed nine people, and Gurdeep Singh Khera, who was arrested after the 1990 bombings in Bidar and Delhi.

    3.19As mentioned above, some activists participate in hunger strikes to protest against government policies and other perceived discrimination. Hunger strikes are a common and socially accepted form of protest in Punjab. For example, on 29 April 2016 members of the Petrol Pump Dealers Association of Punjab commenced a hunger strike, seeking a reduction in taxes charged on petrol and diesel and a shift in the way base selling rates are calculated. In some cases, the government intervenes in hunger strikes, arresting the protesters and detaining them in hospital where they are force-fed to keep them alive. For example, Surat Singh Khalsa has been on a hunger strike since 16 January 2015. He has been arrested and force-fed via tubes on several occasions. His supporters have also been arrested, including his son, Ravinder Jeet Singh, a US citizen, who was visiting his father when he was reportedly arrested and charged under Chapter V and Chapter VIII of the Indian Penal Code 1870 relating to ‘abetment’ and ‘offences against the public tranquillity’. This protest has received a significant amount of media attention, including in the US Sikh community.

    3.20Overall, DFAT assesses that people in Punjab can freely express their political views without risk of harassment from authorities or other members of the Punjab community. However, people who choose to protest by undertaking a lengthy hunger strike may face arrest, detention in hospital and force-feeding. While peaceful protests are common and typically proceed without incident, DFAT assesses that large protests involving unrest, violence and damaging of property would face a risk of a strong police response. However, such violent protests and police responses are rare in Punjab.

    Police[14]

    [14] Ibid at p.20

    5.1The Punjab police force is a state-run force with around 76,000 personnel. Multiple credible sources—including from civil society representatives, journalists, lawyers and members of the diplomatic corps—told DFAT that Punjabi police capacity is very low, particularly in investigative capacity, and the police have a poor reputation, with high levels of corruption. These sources reported that police are involved in the drug trade, as well as extortion of suspected LGBTI people and incidents of extra-judicial killings, known as ‘fake encounters’ (see ‘Arbitrary Deprivation of Life’, above). There are also perceptions of political interference in policing, with reports of large scale movement of senior officers following changes in government.

    5.2Several credible sources told DFAT of the widely held perception that police in Punjab are able to act with impunity. Under Section 197 of the Indian Criminal Procedure Code 1973, no judge, magistrate or public servant (including police officers) can be convicted of an offence committed while acting in their official capacity without the permission of the relevant government—in the case of the Punjab Police Force, the ‘relevant government’ being the state government. Permission for a police officer to be convicted is rarely given, particularly when the person in question is a senior officer. As a result, few senior police have been convicted of crimes committed during the period of separatist militancy in Punjab.

    5.3Progress on police reform has been slow. The Punjab Police Act 2007 has reportedly had little impact in changing police culture or implementing structural reforms. Secondary legislation in the form of a guide to policing has been developed but not yet introduced. Police service delivery has improved in some areas, including by the introduction of community policing programs. Some police investigative training has also been conducted, including training run by the UK, but overall capacity remains low, as does public confidence in the police.

    Judiciary [15]

    5.4For information on the legal framework governing the court system in India, see DFAT’s 14 June 2015 Country Information Report on India. DFAT has no information to suggest that its assessments about the broader Indian legal system have changed since the publication of that report.

    5.5Punjab has an independent judiciary, the decisions of which are generally accepted as being fair and unbiased. Private sector contacts have told DFAT that the court system could be relied upon to settle fairly issues around contract disputes and property rights enforcement, although this needs to be placed in the context of generally poor contract enforcement standards across India compared to OECD countries. In the 2016 World Bank Ease of Doing Business report, India was ranked 178th out of 189 countries for the ‘enforcement of contracts’ indicator.

    5.6As in other parts of the country, the Punjab courts system is inefficient and heavily overburdened, and cases can take several years to be brought to trial and concluded. These inefficiencies tend to affect the poor disproportionately, as they are unable afford good quality counsel, bail or other legal costs, and can be held for long periods of time pending trial. As of October 2015, Punjab reportedly had one of the highest

    [15] Ibid at p. 20-21

    FINDINGS AND REASONS

1. The Tribunal does not accept that the applicant is a credible witness for the following reasons:

2. The Tribunal noted from the evidence provided by the applicant that his problems which have prevented his return to India were twofold. First, the applicant has unresolved matrimonial issues with his former spouse and her family. Second, the applicant claims to be a fervent supporter for the assertion of the political rights and freedoms of the Sikhs in India and a supporter and member of political parties which endorse, support and champion moves for the establishment of a Sikh-majority nation-state to be called ‘Khalistan’ in India in the place of the current state of Punjab.

   a.The applicant’s claim that his has been an politically involved while in India

3. The applicant’s evidence about his involvement in the Sikh political movement and in particular, the ‘Khalistan’ movement in the past in India was not convincing. At the hearing, the Tribuanl asked the applicant about his political involvement while he was India. According to the applicant, he met with ‘Akal group’ who were introduced to him by his former wife’s [Relative A]. Through this association with his former wife’s [Relative A], the applicant came ‘to know’ so he claimed – the Khalistan group. The applicant also claimed that he (while in India0 involved himself with this political group at local elections –‘doing many things’ and doing these ‘many things’, he came to the attention of the local police after his activities were reported to them by some locals who disapproved of the applicant’s actions and his political views. The Tribunal was told that the local police ‘told’ the applicant to ‘remain quiet’ and to ‘not involve himself’ in any local political activities and if he failed to do so, he would have to leave the Punjab. The applicant’s parents, thereafter, the applicant told the Tribunal, feared for his safety after he was given the police warning, but the applicant remained in his village for a further two months and discussed future political activities with a member of the movement in Australia and the left for Australia in September 2011.

4. Reviewing the country information available concern the political situation in India, and in particular, the state of Punjab, the Tribunal accepts that the applicant may have had an interest and an involvement in politics and may have been a supporter of a particular political party which was contesting public office at the time he was in India – and was specifically supportive and orientated towards the Sikh minority. Having said that, the Tribunal acknowledges that India is the world’s largest democracy and a democracy despite its internal peculiarities and upsets from time to time – functions in accordance with the rule of law and upholds human rights and freedoms and upholds liberal democratic values. The Tribunal’s concern with the applicant’s evidence about his ‘involvement’ in politics is his claim that it attracted the interest of the local police authorities and yet when the applicant was asked about what was his actual involvement – the applicant’s response was that ‘…he was involved doing many things…’

5. The Tribunal noted that the applicant did not provide any details of the activities he undertook [while in India] which caused him to be reported to the police and warned by them to stop those activities or else leave the Punjab. The Tribunal accepts that the applicant may have participated together with many other Sikhs as spectator or rally visitor of the Party of his choice as he claims but the vagueness of his claim that he did ‘many things…’ which caused the police to intervene and to warn him – without the applicant identifying what he was actually doing and then remaining in his village for a period of two months despite his parents’ concerns for his welfare (as he claimed) then leaving for Australia without any issues leads the Tribunal to conclude that his claim this political activities in India were and are an on-going concern to the Indian authorities not to be credible. The Tribuanl therefore finds that it does not accept that there is a real chance the applicant would be persecuted for his past political beliefs and actions or would be a person of interest to the central and state authorities because of his political beliefs, actions or opinions or because of his race and religion as a Indian citizen of Sikh faith and ethnicity. 

   b.Claims concerning his political activities as an activist and member of the political party Akal Dal and as a supporter of the Khalistan movement while in Australia.

6. The applicant claimed that he had continued his political activities within the Sikh community while in Australia. The applicant was asked by the Tribunal if he was a member of the ‘Akal Dal political movement’ in Australia and his response was that ‘….I must be….” The applicant provided no identification or membership cards identifying him as a member of the Akal Dal political group. He also claimed membership of a ‘Sikh’ organisation while he was living in [City 3]. Again, the applicant provided no evidence or supporting documents from members of the Sikh community in [City 3] to substantiate his claim. Furthermore, the applicant claimed that while in Australia, he and other Sikhs had collected and were collating ‘information’ about the ‘brutalities’ caused by the central and state authorities in India against the Sikhs in the Punjab state which had been widely distributed. The Tribunal was told that this publication identified the ‘people’ who ‘disappeared’ in the 1984 unrests following the Indian army’s assault on the Sikh holy shine – the Golden Temple. The applicant also told the Tribunal that the publication was published on the internet but was later blocked by the Indian authorities. The applicant claimed that he and others were also involved in sending copies of the impugned publication to India and that he would have been able to provide evidence of this publication and its distribution and his involvement in this political activity to the Tribunal but could not do so because his email account had been hacked and he had lost all documents.

7. Once again, the applicant’s evidence about his political activities while in Australia are lacking in detail and the substance necessary to make them credible in the opinion of the Tribunal. The applicant bases his claims on generalities and not on any specific evidence of fact. He goes so far as to claim that his activities have enhanced his profile in India and in the Punjab as a person of interest to the authorities because his former [wife’s Relative B] had also reported him to the police in 2013 and in 2016 when there was a ‘a religious book burning incident in India’ which it was claimed by the authorities that it had been orchestrated in Australia. Indeed, the applicant provided a copy of the news article about this incident but upon review of the article in question[16] the Tribunal does not accept as credible the applicant’s claim that the authorities would believe his former [wife’s Relative B’s] accusations that he was an instigator (from Australia) of this incident or one of the instigators. The news article made no specific claim that the applicant was involved in this book burning protest in Australia. The Tribunal was provided with no evidence to substantiate the applicant’s claims as far as they involved his [former wife’s Relative B’s] accusations to the police concerning this protest and the applicant’s direct involvement. Therefore, the Tribunal does not accept and finds on the evidence before it, that the protection of the Convention is invoked by the applicant’s claim, that there is a real chance that the applicant would be forced to explain himself to the Indian and Punjabi authorities for his political activities in Australia if he was to return to India and the Punjab in the reasonably foreseeable future. 

   c.Legal issues concerning the applicant’s former wife and her parents

   [16] AAT File no. 1507290 Folio no.[35]

8. The applicant claimed that if he returned to India, he faced court proceedings for an unresolved dowry dispute and charges for the abandonment of his now former wife. Indeed, the applicant provided the Tribunal with court documents and an affidavit sworn by his father which provides evidence of legal proceeding pending against him in India.[17]The Tribunal accepts that the applicant faces legal proceedings in India initiated against him by his former wife and her parents for unresolved matrimonial issues. With regards to these pending legal proceedings amounting to some form of persecution awaiting the applicant if he was to be returned to India and to the Punjab is in the opinion of the Tribunal not proven. With regards to the legal system in place in the state of Punjab which would deal with the applicant’s marital issues the DFAT Thematic Report – Indian State of Punjab reports that the Punjab has an independent judiciary, the decisions of which are generally accepted as being fair and unbiased. The Thematic report goes on to report that ‘…..the court system could be relied upon to settle fairly issues around contract and property rights enforcement.’[18] The Tribunal finds on the evidence before it that the applicant has adequate access to the courts in the Punjab if he should in future wish to argue his case against his wife’s claims against him for marital neglect and unpaid dowry and that access to the courts in the Punjab is open to all citizens (and it includes the applicant despite his political beliefs which create for him no constraint) and the Tribunal finds he is not in any way prevented because of his past or present actual or imputed political opinion, beliefs or political actions or any other Convention reason from accessing the judicial system and seeking justice and a fair hearing in the Courts of the state of Punjab.

   d.Thea pplicant’s state of health – medical reports submitted to the Tribunal

   [17] Ibid ATT File, see applicant’s father’s Affidavit Folio no. [71] and Court Summons Folio no. [62]

   [18] DFAT Thematic Report – Punjab, 7 December 2017, at pp.20.

9. The applicant in his post-hearing submissions to the Tribunal, submitted medical reports which identified that the applicant had been examined by his doctors for experiencing “[specified symptoms]….”[19] The Tribunal noted that the results did not indicate any major or serious deterioration of the applicant’s health and concluded that “….there has been no recent significant [worsening of  symptoms]….”[20]Indeed, the applicant provided no explanation for the medical reports he submitted and did not indicate any current or future concerns about his accessing proper medical treatment if he required it – if he was to return to India in the reasonably foreseeable future. Information accessed by the Tribunal on Healthcare in India notes that India’s Constitution guarantees free healthcare to all citizens[21] but in practice the private health care sector is responsible for the majority of the healthcare in India, and most healthcare expenses are paid out of pocket by patients and their families, rather than through insurance.[22] All government hospitals are required by law to provide healthcare free of cost[23] and such hospitals exist in each district. The Tribunal finds that the applicant’s medical condition is not (based on the medical reports submitted) not life threatening or that it requires the attention of specialists or the provision of specialist care and further monitoring  of it may be sufficiently undertaken if the applicant continue to have concerns in India when he returns.

   Relocation to other parts of India

   [19] AAT File Folios [77]-[81]

   [20] Ibid see AAT File Folio [79]

   [21] Britnell, Mark (2015). In Search of the Perfect Health System. London: Palgrave. P.59

   [22] Berman, Peter (2010) The Impoverishing Effect of Healthcare Payments in India: New Methodology and Findings. Economic and Political Weekly.

   [23] Britnell, Mark (2015). In Search of the Perfect Health System. London: Palgrave. P.59

10. The Tribunal also discussed with the applicant (see at paragraph [44]) whether if he was to return to India he would consider it viable in order to enhance his personal security to relocate to a different state or city in India. The Tribunal noted that the applicant raised fears returning to his home state of Punjab and did not consider it appropriate to relocate to another part of India because he feared that persecution would continue in other parts of India.

11. According to the country information on Internal Relocation the Tribunal noted that:

    “5.13Sections 19(1) (d) and (e) of the [Indian] Constitution guarantee citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interests of the sovereignty and integrity and security of the State. The condition of ‘reasonable restrictions’ is left to the interpretation of government and [the] courts. It gives room for laws and regulations that can restrict movement (for example, in places where is unrest or in some border areas) and residence (outsiders cannot buy land in Jammu and Kashmir or in Uttarakhand).”[24]

    [24] DFAT Country Information Report – India – 15 July 2015 – see page, 21 CISEC96CF12827

12. More recently, the Department of Foreign Affairs and Trade in its Thematic Report on the State of Punjab[25] reaffirms information that Punjabis can easily relocate to other parts of India with little or no state scrutiny or restrictions. The report states:

    “Internal Relocation

    5.8Punjab has a long history of migration, both within India and overseas. There are no significant legal or administrative barriers to internal migration, and many Punjabis (particularly young people) move to other parts of the country for education and employment opportunities….

    5.9DFAT assesses that internal relocation may be viable for people in the Punjab seeking to avoid certain types of mistreatment. New Delhi in particular is a popular destination for many people from the Punjab seeking improved economic opportunities and relatively greater social freedoms…”

    (Emphasis added…)

    [25] DFAT Thematic Report – Indian State of Punjab – 7 December 2016, at page 21.

13. While the Tribunal notes the applicant’s concerns about relocation as an option, the Tribunal considers it an option for him to take. The Tribunal considers on the basis of his evidence that any threat he faces is localised to his state of Punjab or in his home town but not in all parts of India. The Tribunal therefore finds that there will not be a real risk that the applicant (or her family) would suffer significant harm at the hands of his former wife of her parents or by the state authorities or their agents if he relocates to some other region or city within India but outside her home state of Punjab and that the Tribunal finds that it would be reasonable for the applicant to relocate within India if she and her family chose to do so.

14. For the reasons given above, the Tribunal finds that there not a real chance that the applicant will face persecution for any of the Convention reasons including political opinion if he was to return to the Punjab, India now or in the reasonably foreseeable future. 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 section 36(2)(a) of the Act.

15. The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa) of the Act. The Tribunal has considered whether there are 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 the applicant would suffer significant harm.

16. The applicant claimed that because of his past political activities in the Punjab as a Sikh political activist and because of his continued activities while here in Australia for the cause of the Sikhs he was and is a person of interest to the central and state authorities in the Punjab. He also claimed that he faced legal proceedings in the courts in the Punjab initiated against him by his former wife and her family for unpaid dowry money and marital neglect. Again, having regard to the findings above, the Tribunal does not accept and does not find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the state of Punjab, India there is a real risk that he will be persecuted by the authorities for his past and current political opinions, his beliefs and activities as he claimed nor that he would be unable to have equal and fair access to the courts and legal system in the Punjab enabling him to defend himself against his former wife’s and her family’s accusations on summons.

17. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection 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).

18. 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

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

Peter Vlahos
Member