1510187 (Refugee)

[2016] AATA 4610

1510187 (Refugee) [2016] AATA 4610 (13 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510187

COUNTRY OF REFERENCE:                  India

MEMBER:Suzanne Carlton

DATE:13 October 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 13 October 2016 at 10:23am

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] December 2013 and the delegate refused to grant the visa [in] July 2015. The applicant had previously applied for a protection visa in 2011 and that was refused on the refugee criteria.  This matter comes before the Tribunal as a review of a protection claim in relation to complementary protection only.

3. The applicant appeared before the Tribunal on 7 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Complementary protection criterion

5. 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’).

6. ‘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.

7. 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

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant is owed Australia’s protection on the basis of Australia’s complementary protection obligations.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

10. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application.  According to the information provided on the application form, the applicant is [an age]-year-old citizen of India who entered Australia [in] November 2008 as the secondary applicant on his wife’s Student Visa.

11. The applicant and his wife divorced in 2010.

12. Due to the breakdown of that relationship, the visa, in relation to the applicant, was cancelled.  The applicant applied for and was granted a [Student] Visa valid until [a date in] June 2011.  The applicant states that he ceased study on that visa in December 2010. Upon the cessation of that visa, the applicant made a claim for protection under the refugee criteria ([in] June 2011). He was granted an associated Bridging Visa A valid to [March] 2012. 

13. In relation to that application, he was invited to, but did not attend a protection visa interview.  [In] October 2011 the protection visa was refused. 

14. The applicant sought review before the then Refugee Review Tribunal, which affirmed the decision of the delegate [in] February 2012.

15. The applicant then sought judicial review before the then Federal Magistrates Court (FMC).  He was granted an associated Bridging Visa A to [April] 2013. That application for judicial review was dismissed by the FMC [in] October 2012.

16. The applicant then sought judicial review before the Full Federal Court, which dismissed the application.

17. [In] April 2013 the applicant applied for special leave to the High Court of Australia.  He was granted an associated Bridging Visa A to [October] 2013.  In September 2013 the High Court refused special leave. Later that month, the applicant made an application for Ministerial Intervention.  He was granted an associated Bridging Visa E to [January] 2014.  In October 2013 the Minister declined to intervene. 

18. The applicant then made this application and was granted a subsequent Bridging Visa E.

19. The applicant, during the hearing, confirmed the above chronology as accurate. 

    Claims in application

20. Before the Department, the applicant provided claims in his protection visa application.[1]

    [1] [File number], Folios 19-22.

21. He claimed to fear retribution because of his past involvement, as an active member in All India Sikh Students Federation (AISSF) and as a supporter of the Khalistan Movement.

22. He claimed that government agencies “interrogated [him] and followed [him] everywhere,” accusing him of links to the Pakistan intelligence organisation (ISI).

23. He claimed that he was tortured and his brother was beaten and arrested.  He said both were interrogated. 

24. He claimed that he feared being targeted by Punjab Intelligence and other security agencies.  Finally, he claimed to fear arrest at the airport.

25. The applicant asserted that AISSF members who lived abroad were arrested upon their return to India and that AISSF members were kept in jail without charge or upon fabricated charges.

26. The applicant was invited to a protection visa interview but once again, did not attend. He stated, during the hearing, that he never received the invitation. The delegate proceeded to refuse the application for the protection visa in July 2015.

    Review application

27. No further documents or submissions were tendered to the Tribunal prior to the hearing. The applicant did not provide the delegate’s decision to the Tribunal.

28. At the hearing, the applicant confirmed that he understood the Presiding Member. A Punjabi interpreter was requested and used and the applicant confirmed that he understood the interpreter. 

29. The applicant said that his English is a good and that he also speaks Hindi. 

30. The applicant said that in India he had worked for his family’s farm and that both his brother and his father were farmers. His brother and his father had only finished year [grade] but the applicant states that he finished year [grade].

31. He states that his brother married in 2005 or 2006 and has left with his in-laws in a nearby village since that time.

32. When asked if he had lived anywhere else in India, besides his village, he stated that he had spent three months at university in Chandigarh.  Later on in the hearing, when asked about his study, he said he spent 8 to 9 months at [named] College in [Town 1], nearly [distance] away from Chandigarh. 

33. He attended English language study in Australia in 2010 for about three months.  Since being onshore, he has worked at a [business] and as [an occupation 1].

    Claims for protection

34. The applicant claimed that he first became involved with AISSF in 2006 when he was studying at [named] College.  He stated that none of his family was involved with that organisation.

35. Whilst at university, he stated that he and his friends used to attend seminars in different cities. He claimed that he had been involved in rallies and protests and talked about protesting the leader of Dera Saucha Sauda (DSS), Baba Ram Rahim in relation to the allegedly blasphemous comments he made.

36. The applicant said that AISSF had been involved in the protests against the DSS leader in 2007 which led to “many people” being killed.

37. The applicant said that he had attended a protest in Bathinda and that the protest continued for one and a half months, although he only took part in the protest for 5 to 6 days. The applicant said that following that protest, the DSS leader was banned in Punjab and continues to be banned.

38. The applicant said that he went to pro-Khalistan rallies and that he was arrested from there, tortured and released without charge. The Tribunal sought to further particularise this assertion with the applicant.  In responding to the Tribunal’s questions, the applicant said that the first time he was arrested was from a rally he was at in [Town 2]. He described his torture at the hands of the police as being hung upside down until he fainted. This was in 2007. He states that he was kept two days and then released before being arrested again from his home.

39. I asked about when he was taken from his home and he said it was during dinner with his family. He states that four plainclothes men in a police jeep took him from his home to the jail in [Town 1], a [time] drive from his home. He said on that occasion he was “mentally tortured” explaining that he was held in a cell by himself and given food and water only occasionally during that four-day period.

40. He states that his release, on that occasion, was effected because his parents approached the village Sarpanch, who intervened. 

41. I asked the applicant when his brother was arrested. He said that was also in 2007. His brother was kept one day but promised release if the applicant turned himself in. The applicant did so and his brother was released. There was no assertion, during the hearing, that the applicant’s brother was beaten. This and the applicant’s two previous arrests discussed were the only arrests the applicant particularised in his evidence. 

42. The applicant states that his brother was only arrested on the one occasion and that it occurred before the incident in which the applicant was arrested from his home by the four men in the police jeep. The applicant states that following his brother’s arrest, his brother moved in with his in-laws in a nearby village and that his brother’s arrest in fact prompted that move. I note this contradicts the applicant’s earlier statement that his brother had moved to that nearby village to live with his in-laws upon his marriage in 2005 or 2006.

43. The applicant said that despite his past arrests, no case had been filed against him and there was no police record in relation to him, he believed. He confirmed that there were no outstanding warrants for his arrest.

44. He states that he fears for both himself and his brother. He claimed that the Hindu people in his village would, upon his return, make a police complaint or alert the police of his past activities. He states that his brother only lives [short distance] away and would face the same harm and for this reason, he would not be safe staying with his brother. However, he acknowledged that his brother had not had any problems since the applicant came to Australia, with the sole exception of being asked about the applicant’s whereabouts by the police in 2009.

45. The applicant claims to continue to be pro-Khalistan and to follow the ideals of AISSF. He acknowledged however that he has not remained in contact with AISSF people and does not follow its activities. He was unaware that the most recent leader had stepped down and that AISSF had been dissolved.

46. Apart from fears of retribution relating to the applicant’s past AISSF involvement and pro-Khalistan activities, the applicant said that he feared police lodging false accusations against him. He said he based this fear on the many false cases that were filed against Sikhs in the mid to late 1980s. However, the applicant also sought to connect the recent vehicular death of Jagoe Singh, a pro-Khalistan activist, to the government based on the government’s failure to make any arrests.

47. The Tribunal enquired about the claims the applicant made of having been accused of links to Pakistan intelligence. The applicant during the hearing, sought to clarify this by saying that the police told him that they would assert that in order to make a false case against him.

48. The Tribunal put to the applicant, pursuant to section 424AA, that when he previously appeared before the then Refugee Review Tribunal in 2012 his claims centred on his AISSF activities at [his named] College, activities he said he became involved in because of his brother’s involvement in AISSF at [that] College. In his 2012 evidence he stated that his brother had been arrested, interrogated and badly beaten before being released and going into hiding in Calcutta. The applicant said in 2012 that while his brother was in hiding in Calcutta, the applicant himself was arrested and interrogated for 4 to 5 hours about his brother’s whereabouts. During that interrogation, he said that police had threatened to kill him because he wore a turban and was involved with AISSF.

49. The applicant responded to this information by asserting that he was not talking about his “brother” at that time. He was instead talking about his “cousin-brother”.

50. With respect to the threats because he was wearing a turban, the applicant sought to explain that police would assume that because he was wearing a turban, he was pro-Khalistan and that his parents advised him to cut his hair.

    Country information

51. The Tribunal has had regard to country information relating to AISSF and pro-Khalistan groups and the situation of AISSF and pro-Khalistan followers, as well as Sikhs in India more generally.

52. About half of Sikh men in India were estimated to be turban wearers in 2007.  There is no apparent connection between turban wearing and beliefs, particularly among young people.  It is instead more to do with fashion choices, according to the country information.[2]

    [2] “For young Sikhs, the turban is old hat,” NY Times, 29 March 2007, >

    The earliest report the Tribunal was able to locate of AISSF involvement in protests against the DSS leader was in August 2008, [3] although the ‘objectionable’ actions of the DSS leader were done in May 2007.

    [3] Tribunal file, Folio 38.

53. In a now infamous act, DSS Guru Gurmeet Ram Rahim Singh appeared to imitate the revered tenth Sikh Guru, Guru Gobind Singh. Writing in The Hindustan, Gobind Thukral states that the guru’s “farcical manner” should have “provoked some wry humour”. However, the Sikh ruling elite saw a political opportunity to diminish the growing political power of the DSS guru and the dera:

    …the political class saw in it an opportunity for consolidation of their respective political bases. Consequently, there were armed clashes that left scores of Dera followers and Sikhs injured and one young man dead. For the first three days, the police were mere spectators as sword and lathi-swinging mobs clashed in and around Bhatinda, the heart of Punjab’s prosperous Malwa. At the behest of the ruling Akali Dal and the Shiromani Gurdwara Prabandhak Committee (SGPC), the Sikh clerics occupying the five Takhts arbitrated, but their harshly-worded edicts only fuelled more hatred.[4]

    [4] Thukral, G 2007, ‘Keep the faith’, The Hindustan Times, 18 June < Accessed 6 January 2012 <Attachment>

54. The Economist argued that the Akali Dal (SAD-Badal) “encouraged protests against the Dera” and authorised “the police to arrest Mr Singh [the DSS leader] for hurting Sikh sentiments”.[5] BBC News states Sikh leaders were seeking to punish Gurmeet Ram Rahim Singh for supporting the Congress Party ahead of Punjab state elections; “Sikh leaders, angry at the direct intervention by the DSS in the elections, seized the opportunity to whip up popular sentiments of their community against the DSS”.[6] The violence reportedly lasted for six days and led to the death of at least one person and over 100 injured.[7]

    [5] ‘Dangerous tensions in Punjab’ 2007, The Economist, 5 July < cfm?story_id=9444533> Accessed 1 August 2007 <Attachment>

    [6] Singh, J 2007 ‘What is behind Sikh protests?’, BBC News, 18 May < Accessed 26 November 2009 <Attachment>

    [7] ‘Punjab limping back to normalcy, isolated protests’ 2007, The Hindu, 19 May < Accessed 10 March 2008 <Attachment>

55. Anti-DSS violence and demonstrations once again erupted in June 2008 after a Sikh protestor was shot and killed in Mumbai by one of Gurmeet Singh’s bodyguards. Riots were reported in both Mumbai and Punjab.[8] In October 2011, fourteen DSS members charged in relation to the shooting death in Mumbai in 2008 were acquitted.[9]

    [8] US Department of State 2008, International Religious Freedom Report for 2008 – India, 19 September <Attachment>

    [9] ‘Dera members acquitted of murder charges’ 2011, ZeeNews.com, 18 October < Accessed 6 January 2012 <Attachment>

56. In July 2008, radical Sikh groups organised bandhs (strikes), which turned violent after the alleged killing of a Sikh youth by sword carrying DSS members in Dabwali (near Sirsa); 17 people were injured in the ensuing violence. Daily News & Analysis[10] reported that the bandh was supported by the Shiromani Gurdwara Prabandhak, a body in charge of Sikh holy sites.[11]

    [10] Launched in July 2005, Daily News & Analysis is a Mumbai-based English broadsheet daily owned by Diligent Media Corporation. See About Us <

    [11] Bharadwaj, A 2008, ‘Sikh–Dera showdown shuts Punjab down’, Daily News & Analysis, 24 July < Accessed 10 February 2010 <Attachment>

57. One Sikh group commonly implicated in violent clashes with DSS is Ek Noor Khalsa Fauj.[12] In 2009, The Tribune reported that “20 armed assailants of the Ek Noor Khalsa Fauj” attacked DSS members in Shimlapuri, Ludhiana. According to the report, “[a]rea residents said the followers of the Ek Noor Khalsa Fauj were armed with swords and other sharp-edged weapons”.[13] A similar clash between the two groups was reported in March 2011 in the Moga district of Punjab after Ek Noor Khalsa Fauj attempted to disrupt a DSS meeting. DSS members reportedly responded by throwing stones at the Ek Noor Khalsa Fauj gurdwara.[14]

    [12] Ek Noor Khalsa Fauj is a small, ultra-orthodox Sikh group that commonly employs violence.

    [13] ‘Bloody brawl at Shimlapuri: 12 hurt as Khalsa Fauj, Dera followers clash’ 2009, The Tribune, 24 May < Accessed 30 June 2009 <Attachment>

    [14] ‘Tension in village as Sikhs, dera men clash’ 2011, The Times of India, 7 March < Accessed 10 March 2011 <Attachment>; Punjab town tense after Sikh group-Dera followers clash’ 2011, ZeeNews.com, 8 March < Accessed 9 January 2012 <Attachment>

1. Other radical Sikh organisations associated with anti-DSS actions include the Khalistan Action Committee, Sant Samaj, the All-India Sikh Students Federation (Sant Bhindranwale), and the Sikh Youth Federation. In April 2009, these organisations travelled to the residence of Punjab Chief Minister Parkash Singh Badal and demanded that he close all DSS ashrams in Punjab.[15] Sant Samaj, led by Baljeet Singh Daduwal, is described by The Hindu as ‘pro-hardline’ and like Ek Noor Khalsa Fauj, its members are known to take swords to anti-DSS protests.[16]

   [15] Sharma, S P 2009, ‘Radicals to gherao CM’s house’, The Tribune, 25 March < Accessed 1 August 2011 <Attachment>

   [16] ‘Curfew re-imposed in troubled Punjab town; 51 arrested’ 2011, The Hindu, 4 January < Accessed 9 January 2012 <Attachment>

2. In July 2009, a member of the DSS Mansa district committee, Lili Kumar, was shot dead in the district after having attended court in relation to a 2007 attempted murder case. In the past, Kumar’s house was allegedly set on fire.[17]

   [17] Deep, R 2009, ‘Dera Sacha Sauda follower shot dead’, The Tribune, 29 July < Accessed 13 August 2013 <Attachment>

3. The post-2007 rapprochement between SAD-B and DSS did not diminish the antipathy of the Akal Takht towards DSS.[18] As noted previously, Ronki Ram has argued that the “near-exodus of dalits from Sikhism” towards the deras continues to enrage mainstream Sikh clerics, “who see it as a serious challenge to the Sikh-Khalsa identity”.[19] In November 2011, the Akal Takht chief Giani Gurbachan Singh condemned SAD-B politician, former finance minister, and nephew of the Chief Minister, Manpreet Singh Badal after he met with Gurmeet Ram Raheem Singh at the DSS headquarters near Sirsa. Gurbachan Singh reportedly declared that Badal “was no longer a true Sikh”, and warned that he could face a boycott by the Sikh community.[20] An SGPC member, Navtej Singh Kauni, was summoned by the Akal Takht after he attended a DSS congregation in Muktsar district in May 2013.[21]

   [18] Thukral, G 2007, ‘Keep the faith’, The Hindustan Times, 18 June < Accessed 6 January 2012 <Attachment>

   [19] Ram, R 2007, ‘Social Exclusion, Resistance and Deras: Exploring the Myth of Casteless Sikh Society in Punjab’, Economic and Political Weekly, Vol. 42, No.40, JSTOR, p.4066 <Attachment>

   [20] ‘Akal Takht slams Manpreet Badal for visiting Dera’ 2011, ZeetNews.com, 23 November < Accessed 6 January 2012 <Attachment>

   [21] ‘Sarna faces Akal Takht today’ 2013, Hindustan Times, 26 July, FACTIVA <Attachment>

4. Clashes between DSS activists and opponents took place in November 2012 in Sirsa, Haryana, near the dera’s national headquarters. As a consequence, the town was subject to a curfew and police laid charges against a number of people, including DSS members. The Tribune reported that authorities closed all schools, colleges and other educational institutions in the district till 28 November. DSS blamed Guru Granth Sahib Satkar Sabha for the clash.[22]

   [22] ‘Flag march in Sirsa as curfew continues’ 2012, The Tribune, 25 November < Accessed 15 August 2013 <Attachment>

5. No information has been found to support the proposition that Dera Sacha Sauda leader, Gurmeet Ram Rahim Singh, has been banned from Punjab.  In fact, there are reports that he resides in a compound in Sirsa.  One of his films was banned in Punjab however.

   Pro-Khalistan supporters

6. Sikhs who offer material support to violent or banned pro-Khalistan groups continue to be arrested in India.[23] Suspected members of banned Khalistan groups, such Babbar Khalsa International (BKI), continue to be arrested and tried in India.[24] 

   [23] ‘Punjab: Mother, daughter among 3 arrested for helping revive Khalistan movement’ 2013, Daily Bhaskar, 22 March < Accessed 25 March 2013 <Attachment>

   [24] Tandon, M 2012, ‘Babbar Khalsa International terrorist jumps off train before snoring cops’, The Times of India, 5 April < Accessed 18 May 2012 <Attachment>; ‘ISI pressing Babbar Khalsa to revive terror’ 2010, The Times of India, 21 March < Accessed 17 May 2012 <Attachment>; Pandey, B 2010, ‘Poster Boys, Poster Wars, Tehelka, 4 September < Accessed 30 August 2010 <Attachment>

7. According to information provided to the IRBC by a representative of the World Sikh Organisation of Canada, Sikhs who continue to advocate separatism remain vulnerable to arrest, detention, and possible human rights violations.[25] The IRBC also refers to an article in The Tribune[26] that claims that some Sikh individuals and groups continue to be charged with “anti-national activities” for advocating Khalistan.[27] However, the independent judiciary has dismissed many of these charges; in September 2011, “Shiromani Akali Dal (Panch Pardhani) chairman Daljit Singh Bittu” was acquitted of sedition charges brought against him in May 2007 after he allegedly “raised slogans in favour of Khalistan during a protest march”.[28]

   [25] Immigration and Refugee Board of Canada 2012, India: Treatment of Sikhs in Punjab (2007– February 2012), IND103968.E, 2 May < Accessed 31 May 2012 <Attachment>

   [26] English-language newspaper published from Chandigarah.

   [27] Immigration and Refugee Board of Canada 2009, India: Whether members of the Akali Dal (Mann) / Akali Dal (Amritsar) party are harassed and arrested for participating in party gatherings, for publicly complaining about the treatment of Sikhs by Indian authorities or for calling for the creation of Khalistan (separate homeland for Sikhs); whether police regard members of the Akali Dal (Mann) party with suspicion and monitor them for signs of any links with terrorism (2005 – March 2009), IND103112.E, 14 April < Accessed 7 April 2011 <Attachment>; Singh, D 2010, SJF Condemn arrest of Sikh Activists, Sikh Siyasat, 3 November < Accessed 7 April 2011 <Attachment>

   [28] ‘Shiromani Akali Dal (Panch Pardhani) chairman Daljit Singh Bittu acquitted in sedition case’ 2011, Punjab News Line, 30 September <Attachment>

8. In April 2013, pro-Khalistan groups Sant Samaj, Damdami Taksal, Shiromani Akali Dal (Amritsar) and Akali Dal (Panch Pardhani) staged a rally in Delhi calling for clemency regarding the death sentence imposed on Sikh militant Devenderpal Singh Bhullar.[29] These groups were allowed to demonstrate, without police interference.

   [29] Singh, I P 2013, ‘Bhullar's death sentence: Radical Sikh outfits announce Delhi march’, The Times of India, 15 April < Accessed 22 August 2013 <Attachment>

9. In correspondence with the Research Directorate, the Director of the Orfalea Centre for Global and International Studies at the University of California, who has published over 300 articles and 20 books on South Asian religion and politics, indicated that "in the past, any Sikhs who have been supporters of the Khalistani separatist movement have been closely watched and detained, and many of them claim to have been abused at the hands of the police".[30]  The WSO representative similarly noted that "Sikhs who advocate for and support a separate Sikh state or Khalistan continue to face serious human rights violations".[31] According to the same source, Sikhs who support Khalistan often find themselves harassed by the police and are detained and tortured. Similarly, religious Sikhs are in certain instances suspected of harbouring separatist tendencies and are the target of scrutiny by the Punjab Police. Former militants are also closely monitored in Punjab and often arbitrarily detained and questioned.

   [30] Immigration and Refugee Board of Canada 2015, IND105131.E: India: Treatment of political activists and members of opposition parties in Punjab (2012-April 2015), 11 May 2015 < Accessed 30 June 2015, OGFDFC61A21.

   [31] Ibid.

10. Akali Dal (Amritsar) [a "splinter" Akali Dal party formed in the mid 1990s], and Dal Khalsa [a political group promoting an independent Sikh state in Punjab], and other "radical" Sikh "ethnonationalist" political parties and organizations "continue to operate above ground".[32]  Furthermore, the Dal Khalsa was able to "contest democratic elections with little hindrance".[33]

    [32] Ibid.

    [33] Ibid.

11. The country information noted that if the government "perceives a threat to communal peace and law-and-order because of specific planned rallies or marches by Sikh ethnonationalists," the state may place leaders of the Sikh political party members and or activists in preventative custody.[34] The same source further stated that once in preventative custody, activists usually do not face physical abuse; however, in some instances, activists may "periodically" have "legal cases ... placed on [them] ... for secessionist and/or provocative speeches".[35]

    [34] Ibid.

    [35] Ibid.

12. No sources were located indicating that ordinary Sikhs who openly support the idea of Khalistan are subject to harm. A 2010 report in Tehelka discusses the enduring romanticisation of Jarnail Singh Bhindranwale and Khalistan by Sikh youths. One shop located near the Golden Temple reportedly sells between “450-500 Bhindranwale posters and CDs a month”. The report attributes this enduring romanticism to the “criminal neglect of the aspirations of youths of Punjab”. Mokham Singh, convenor of the Khalsa Action Committee, is quoted as stating “[t]hey have seen nothing but suppression of his dreams by both the state and the Centre. The state is rich but the people are very poor. So there is an extreme anger in him, which nobody is addressing. There is no employment opportunity, nothing”. However, the report indicates that these youth openly display images of Bhindranwale on their clothing and in their cars, without consequences from authorities.[36]

    [36] Pandey, B 2010, ‘Poster Boys, Poster Wars’, Tehelka, 4 September < Accessed 30 August 2010 <Attachment>

13. An article by the Times of India reports that on 2 November 2014, there was a "crackdown" on individuals protesting for Sikh rights and addressing the "denial of justice" to the 1984 victims and "impunity" to perpetrators of the violence against the Sikh community. Police arrested protestors including members of the All India Sikh Students Federation.[37]

    [37] The Times of India 2 Nov. 2014

14. Joga Singh Khalistani was involved in a hit and run accident in June 2016.  He died from his injuries in October 2016.  He was reportedly a well-known pro-Khalistani activist.  Two weeks before the incident, he had been allegedly been the instigator in a physical brawl with a Sikh man from a different sect.[38]

    State protection

    [38] Sikh activit Joga SinghKhalistani passes away, Sikh Station, 7 October 2016, >

    On the adequacy of law, Indian authorities have the power to arrest persons who promote sectarian tension under the ‘social harmony’ provisions in the Indian Penal Code (IPC); section 153A prohibits “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, and doing acts prejudicial to maintenance of harmony”. IPC section 295A prohibits “deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs”.[39] The IPC also criminalises “assault or criminal force” (section 352) and Criminal intimidation (Section 503).[40]

    [39] US Department of State 2011, International Religious Freedom Report 2010 – India, 13 September, Section II <Attachment>

    [40] Indian Penal Code 1860 - Act No. 45 of 1860, World Legal Information Institute < Accessed 3 March 2011 <Attachment>

15. No sources were located indicating that Sikhs at risk of harm would be denied state protection. Rather, sources question the capacity of the police in India to provide adequate state protection to persons at risk of harm by non-state actors. A 2009 Human Rights Watch report, Broken System – Dysfunction, Abuse, and Impunity in the Indian Police, states that Indian police complain that they have very limited resources, which often prevents them “from responding promptly to calls for help and visiting crime scenes, setting up patrols, and following up on investigation leads”. There is reportedly an average of seven police vehicles for every 100 police and fuel allowances cover “only a small fraction of the cost” of fuel consumed in the line of duty; “[s]ome police in rural areas said that they were often expected to take public transportation to reach remote areas, leading to delays in police response”. Police in India also “frequently fail to register crime complaints, called First Information Reports (FIRs), and to investigate crimes”.[41] The 2012 Vision 2020 report prepared by the West Bengal Police indicates that these same issues continue to undermine police capacity and therefore the esteem in which they are held by the general public.[42]

    [41] Human Rights Watch 2009, Broken System – Dysfunction, Abuse, and Impunity in the Indian Police, August, pp.9,22 < Accessed 28 October 2011 <Attachment>

    [42] Chatterjee, R 2012, ‘Political masters’ interventions, graft crippling police force: Internal report’, The Indian Express, 28 May < Accessed 27 August 2012 <Attachment>

16. While no reports were located of Punjab police withholding state protection to Sikhs, other religious minorities in the state have recently complained of protection denied; most recently Christians attacked by Sang Parivar groups.[43] No evidence was located that Sikhs are denied state protection elsewhere in India. Following the eruption of violence between Sikhs from Tilak Vihar, Delhi and residents of neighbouring Harijan Colony in August 2013, local police intervened and prevented people from the two areas from crossing into each other’s neighbourhood.[44] Police later organised a peace rally, inviting leaders from both communities to attend.[45]

    Treatment of returnees

    [43] All India Christian Council 2010, Police Inaction Over Attempted Murders in Recent Punjab Anti-Christian Violence, 2 March < Accessed 26 October 2010 <Attachment>; Compass Direct, 2006, Police Investigate Easter Attack on Church in Punjab, 9 May < Accessed 8 May 2012 <Attachment>

    [44] Perappadan, B S & Sikdar, S 2013, ‘Clashes in Tilak Vihar leave 27 injured’, The Hindu, 16 August < Accessed 22 August 2013 <Attachment>

    [45] ‘Tilak Vihar: Sikhs, Valmikis hold peace march’ 2013, The Indian Express, 18 August < Accessed 22 August 2013 <Attachment>

17. In its most recent report on India, DFAT reported that it is not aware of any credible reports of mistreatment of returnees by Indian authorities, including failed asylum seekers. India does not have a centralised registration system in place which would enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories within the country. A February 2015 report by the UK Home Office said that the possibility of the police, or any person or body being able to locate, at the behest of an individual’s family, a person who had fled to another state or territory in India, was remote.[46]

    [46] Para 5.21, DFAT Country Report – India, 15 July 2015.

18. It explained that returnees to India use either an existing passport, a newly issued passport, or an emergency certificate, issued through the relevant Indian diplomatic mission. Documents are signed on the basis of a confirmed identity. In most cases this is a straightforward process, but significant delays have been experienced where the identity of the client cannot be confirmed to the satisfaction of the passport officer in the Indian diplomatic mission. The Indian Ministry of External Affairs has confirmed that identities are referred to the police authorities in the location of claimed origin of the returnee. This process is not always reliable, and significant delays have occurred in isolated cases.[47]

    [47] Supra, para 5.22.

    FINDINGS AND REASONS

19. On the basis of the applicant’s passport presented to the Department and in the absence of evidence to the contrary, I find that he is a national of India.

20. The applicant claims that if he returns to India he faces significant harm because of his involvement in AISSF and for his pro-Khalistani beliefs and activities.  He further asserts that the authorities of his country cannot or will not protect him. 

    Credibility

21. I find the applicant wholly lacking in credibility.  The applicant was inconsistent within the evidence he gave to the Tribunal regarding significant particulars.  He was inconsistent in the evidence he gave to the Tribunal and the claims made in his written application. He was also inconsistent in the evidence he gave to the Tribunal and the evidence he gave to an earlier Tribunal, which was put to him for comment under s424AA of the Act. 

22. In addition to the inconsistencies in the applicant’s evidence, he presented an exaggerated perspective of the relevant country information that is not supported by the country information available to the Tribunal. The applicant provided no country information in support of his perspective.

23. In 2012, the applicant had said that the police threatened to kill him because of his involvement in AISSF and because he wore a turban.  In explaining this assertion at the hearing before me, he said that his parents told him it was safer for him if he cut his hair and stopped wearing a turban, explaining that persons wearing turbans risked being seen as pro-Khalistani.  As set out in the country information about, about half of Sikh men observe the turban and there is no apparent correlation between a Sikh wearing a turban and pro-Khalistan support or beliefs.

24. In his statement of claims, the applicant said that he was accused of being Pakistani Intelligence.  When asked about this at the hearing, he resiled from that, stating only that police threatened him that they would claim that he was Pakistani Intelligence. 

25. In his statement of claims, the applicant asserted that he was “followed everywhere”, whereas he made no reference to this surveillance at hearing. He had also claimed to have been interrogated in his claims, but at hearing, he said police just wanted him to confess to anti-government activities. 

26. In his statement of claims, he asserted that “many people” had been killed in the protests against DSS in 2007-08.  The country information set out above indicates that only a few people were killed between 2007 and present.  The applicant also asserted that the DSS leader has been banned since 2007 in Punjab, which is not supported by any country information.

1. While in his written statement the applicant claims to have been beaten, he specifically stated that he was tortured during the hearing in a way that “would not leave marks”.

2. While in his written statement he said that it was his brother and not he who had been arrested, during the hearing, he stated that both he and his brother had been arrested. 

3. In his written statement he had asserted that his brother had been beaten, but did not make this claim during the hearing.

4. During the hearing, the applicant was asked where in India, apart from his village, he had lived.  He responded that he had lived in Chandigarh for three months whilst he was at [named] College.  But when he was asked about how and when he became involved with AISSF, he said that it was whilst at that College in [Town 1], where he studied for eight or nine months.  He said that no one else in his family was associated with AISSF. He stated at the hearing that his brother had not gone to university, having only finished year [grade].

5. When asked about the earlier evidence the applicant gave to the Tribunal in 2012 that his involvement with AISSF at [named] College was because of his brother, who was involved with AISSF at that college, the applicant asserted that he had, in 2012, been talking about his “cousin-brother”. 

6. It was his cousin-brother he was talking about, when he gave evidence in 2012 about having been arrested and interrogated about his “brother’s” whereabouts for four to five hours.  He did not independently discuss this arrest and interrogation at the hearing before me.

7. As noted earlier, the year and motive for the applicant’s brother’s move to live with his in-laws varied during the hearing.  Initially, he said that his brother did this upon his marriage in 2005 or 2006.  But later in the hearing, he said that it was the applicant’s arrest from his family home in 2007 that prompted the applicant’s brother to move in with his in-99999.

   Delay in applying for protection

8. The applicant only applied for protection after he had been in Australia for nearly three years.  Having arrived as a dependent on his wife’s student visa, he did not make a claim for protection between arrived on that visa in 2008 and that visa ending in 2010.  Rather than making a claim in 2010 he sought a student visa in his own right in order to study English.  It was not until that visa expired that he made his initial claim for protection.

9. He told the Tribunal that he thought his student visas would lead to permanent residency and that he would not have to worry about protection. 

10. Given that he was only a dependent on the initial student visa and given that the subsequent student visa was only to study English and that there were no apparent permanent visa pathways from either, I do not accept that this was the applicant’s understanding at the relevant earlier times.

11. Although he did not claim that he was unaware of protection visas, I consider that his awareness of migration law generally and available visas to him upon the separation from his wife indicate a reasonable awareness of visa options, including protection visas.  Instead, I consider that he likely chose not to then follow this path. I consider that this indicates that he did not then have a fear of persecution in India. 

12. I do not accept that the applicant was threatened, harmed, beaten or arrested because of his involvement, if any, with AISSF.  Nor do I accept that the applicant was threatened, harmed, beaten or arrested because of his involvement, if any, in pro-Khalistani movements. His evidence in this regard was inconsistent and contradictory on a number of levels.

13. The applicant added at hearing that he feared false accusations being made against him by the police upon his return to India.  The applicant’s evidence in this regard was vague and lacking in detail or specificity.  Even at its highest, however, the applicant did not have any specific indications that he would face this same fate.  Instead he said that he feared that it could happen to him. 

14. I do not consider that the country information supports a number of his propositions.  Assuming he was an ordinary supporter of Khalistan, there is no country information to indicate that he faces any harm or threats of harm or falsified charges upon his return to India.  The country information indicates that some high-profile activities face harm or threats of harm but the applicant is not, on his evidence (nor does he claim to be) a high profile activist.

100.   I do not accept that he would face arrest at that airport upon his return to India and the country information does not support this assertion. 

101.   I do not accept that the applicant faces accusations or threats of accusations that he is associated with Pakistani Intelligence. 

102.   If I were to accept that the applicant was discussing his “cousin-brother” in his 2012 claims, rather than his brother, as asserted, I would have significant concerns that the applicant did not discuss his “cousin-brother” at the hearing in addressing why he became in involved with AISSF and in discussing his past police interactions and arrests.  He did not do so, until the Tribunal put to him this adverse information.  At any rate, I do not accept that he was talking about his cousin-brother in 2012.  I believe that he, more than likely, was then talking about his brother, but failed to maintain consistencies in his accounts between 2012 and 2016.

103.   Nor do I consider that he faces any danger upon his return to India, on the basis of any of his claims asserted, or cumulatively. There is no credible evidence provided to me that he faced any danger, other than generalised violence, or direct threats of harm in the past.  Additionally, he gave evidence that he has not experienced any threats since he has been onshore. 

104.   Finally, I draw significant adverse credibility findings based on his three-year delay in applying for protection relating to fears of harm he stated pre-dated his arrival in Australia.  I have significant concerns about the applicant’s claimed fear of persecution, considering the delay and considering the applicant’s contact with the Department during that period.

105.   For the above reasons, I am therefore not satisfied that the faces significant harm in India, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. Thus, I am not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa).

106.   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.

DECISION

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

Suzanne Carlton
Senior Member