1604770 (Refugee)

1604770 (Refugee) [2017] AATA 1265 (13 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1604770
COUNTRY OF REFERENCE:                  India
MEMBER:Christopher Smolicz
DATE:13 July 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 13 July 2017 at 9:55am
CATCHWORDS
Refugee – Protection visa – India – Religion – Sikh – Actual or imputed political opinion – Association with Khalistan movement – Discrimination – No state protection – Credibility issues
LEGISLATION
Migration Act 1958, ss 5H(1), 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of India applied for the visas [in] February 2015.
Criteria for a protection visa
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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
The issue in this case is case is whether the first and second named applicants meet the refugee or complementary protection criteria because of their Sikh religion and political opinion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
[Ms A] and [Mr B] are citizens of India. [Mr B] arrived in Australia in April 2006. [Ms A] arrived in Australia February 2007. Both applicants have held a series of student visas since arriving in Australia. The applicants married in Australia in January 2008. Since arriving in Australia the applicants returned to India in July 2009. [Ms A] also travelled to India in December 2012.
According to the department’s records [Ms A] lodged a [temporary] visa application [in] March 2010 naming “[name]” as her dependent. The application was found not be valid. At the hearing [Ms A] claimed she had no knowledge of this [temporary] visa application. She claims her personal documents were stolen by a housemate. She suspected the application was lodged by an imposter.
[Ms A] said that she lodged a [temporary] visa application [in] December 2014 naming [Mr B] (the second named applicant) as her dependent. The application was refused by the Department.
The applicants lodged the protection visa application [in] February 2015.
Summary of substantive claims
[Ms A] completed an application for a protection visa (form 866C) and provided a statutory declaration in which she made claims for protection. [Mr B] completed a form 866C but did not identify his own claims and relies on claims presented by [Ms A] which relate to both applicants.
[Ms A] said that she and [Mr B] travelled to Australia to study. She successfully completed a [qualification] in 2009 and [another qualification] in 2011. She assimilated well to Australian life and married [Mr B] in Australia.
After marriage their parents deserted them and told them there is no place for them at home because her husband’s family has a strong connection to the Khalistan movement who are seen as a violent group seeking statehood for the Sikh community.
[Mr B] joined the Khalistan movement [Babba Khalsa International (BKI)] in 2003. He attended numerous rallies, seminars and youth movements. He was an active member of the movement until he withdrew in 2005 at the age of about [age].
They come from Punjab where there has been violence in February 2015.
[Ms A] claims her in-laws are active supporters of the Khalistan movement and one of their relatives ([Mr C]) was killed by the police during [an] incident on [date]. At the time of the killing [Mr B] was also threatened despite the fact his association with the movement finished in 2005.
[Ms A] claims that because her husband was once a member of the Khalistan movement the authorities have harassed him and his family.
[Mr B] has disassociated himself from the Khalistan movement and is no longer an active member who has distanced himself from the movement.
They fear the state government will not protect them.
[Ms A] states that they have asked for help from the Indian police because they want to return to their country of origin. The state advised them that they have the right to protection however because [Mr B] was a member of the Khalistan movement it is unlikely they will offer him protection.
[Ms A] said that the present situation in India is generally regarded as peaceful and the movement has weakened considerably. She acknowledges that India had a Sikh Prime Minister (Manmohan Singh) until 2013 and the Sikhs are able to maintain their own identity in their areas.
They cannot relocate because the Khalistan movement has now sprung up in New Delhi and are powerful.
Delegate
The delegate found it implausible to claim that death threats had been communicated to the applicants to pressure [Mr B] to re-join BKI given his level of involvement.
It seemed implausible to claim that the police would be threatening the applicants on account of [Mr B]’s prior membership of BKI.
It appeared implausible that [Mr B]’s family would pressure him to stay in BKI or ostracise his wife because she is not involved in with BKI.
The delegate put country information to the applicants which indicates that the militant separatist movement for Khalistan has greatly reduced in power and influence in Punjab. Both applicants agreed with this statement but the applicants considered that the BKI would still be interested in finding and harming [Mr B].
Tribunal hearing
The Tribunal questioned [Ms A] why she fears returning to India.
[Ms A] referred the Tribunal to historical clashes between the Sikhs and the Hindus in India in 1984 (Operation Blue Start). She said that violent clashes continue to this day and it is not safe for Sikhs in India.
The Tribunal noted that there had been violent classes between Sikhs and Hindus in India in 1980s. The Tribunal told [Ms A] that it must assess her claim of persecution looking into the reasonably foreseeable future. The Tribunal referred [Ms A] to country information detailed in the delegate’s decision that about 60 per cent of the population of Punjab are Sikhs and that the Khalistan movement is now a spent force in India.
[Ms A] said that she comes from the Sikh religion. Growing up as a Sikh in India she experienced discrimination from Hindu people. The Tribunal asked [Ms A] if she could expand on her claims. [Ms A] said that she was prevented from speaking Punjabi at school and the Hindu teachers would look down on her because she was Sikh.
[Ms A] said that in India she lived in a Sikh village with her parents. There was no discrimination in the village. When she travelled outside the village Hindu people would ridicule her because she was Sikh.
The Tribunal asked [Ms A] what she feared would happen to her if she returned to India. [Ms A] said she feared discrimination.
[Ms A] said that her husband has a distant [relative] who was killed in India in [year] when he was taking part in a protest.
The Tribunal asked [Ms A] why she returned to India in 2009 and 2012 if she fears persecution. [Ms A] said that she married [Mr B] in Australia in 2008. Her mother was not happy with the Australian wedding and insisted that they travel to India and have a formal Sikh wedding. They travelled to India in 2009 and had a formal wedding to please her parents. The wedding was attended by her family and her husband’s family. [Ms A] said that both sets of parents now approve of their marriage.
[Ms A] said that her parents came to visit her in Australia in 2009 and 2010 and she has a normal relationship with her parents. She has a very good relationship with her husband’s parents in India.
She returned to India in 2012 because her father was not well. It was safe to live in her family village because it was a Sikh village. If she lived in India she would need to travel and it would not be safe because she is a Sikh.
[Ms A] said that she fears discrimination because of her name [and] her husband’s name [are] Sikh names and people will cause them trouble because they will associate them with the Khalistan movement.
The Tribunal asked [Ms A] if she has been involved in politics in India. [Ms A] said she has had no involvement in politics although her uncle was a leader in his village.
The Tribunal asked [Ms A] if she had experienced any harm in India. [Ms A] said experienced discrimination because she was Sikh. The Tribunal asked [Ms A] if her family have experienced any harm in India. [Ms A] said that her family live a Sikh majority area and had no problems at home. If they travelled out of the area they would have trouble from the Hindu people.
The Tribunal questioned [Mr B] about his claims for protection.
[Mr B] said that his parents are Sikh and he is Sikh but he chooses not wear a turban. His father has been living and working in [Country 1] since 2005. His father was a member of the BKI many years ago and supported the Khalistan movement. Since his father travelled to [Country 1] to work he no longer has had any involvement in politics in India.
[Mr B] said that he has no interest in politics. When he was about [age] years old he would follow his father to some political rallies. He was only ever an observer. He was too young to get involved in politics and his father did not want to get him involved. He was never a member of any political party in India. [Mr B] said he was born in [year] and had nothing to do with the violent clashes that occurred in India in 1984.
The Tribunal asked [Mr B] why he fears returning to India. [Mr B] said he fears he will be killed because of his father’s association with the BKI. The Tribunal referred [Mr B] to his earlier evidence and noted that his father ceased being involved in politics in 2005.
The Tribunal noted that he had now been living in Australia for about 10 years. The Tribunal asked [Mr B] to explain why people in India still want to kill him when his father has had no involvement with the BKI for so many years. [Mr B] said that people would remember because his father only had [a number of children].
The Tribunal asked [Mr B] if his father had any problems because of his political opinion in India. [Mr B] said that his father’s political party (BKI) was involved in a fight in about 2001 and his father was detained by the police for [number] days as a consequence.
Findings
The Tribunal finds that the applicants are citizens of India who travelled to Australia on validly issued Indian passports as student visa holders. The Tribunal has assessed the applicants’ claims against India as their country of nationality and the receiving country for the purposes of s.36(2)(aa).
The Tribunal has had regard to the marriage certificate located on the Department’s file and finds that the first and second named applicants married in Australia [in] January 2008.
The Tribunal accepts that the applicants are of the Sikh religion. The Tribunal has assessed their claims against Punjab as their home area.
Beyond these findings, however, the Tribunal does not accept that the applicants have suffered harm in the past or will suffer harm in the future if they return to India because [Mr B] was a former member BKI or any other Khalistan movement.
For the following reasons the Tribunal did not find the applicants’ to be credible witnesses.
The Tribunal has had regard to the applicants’ migration history and is concerned about the significant delay in lodging the protection visa application.
The Tribunal is also finds it inconsistent that the applicants’ claim to fear persecution in India however they both returned to India in 2009 and [Ms A] returned to India a second time in 2012.
The Tribunal finds that the applicants’ evidence at the hearing was inconsistent with the written claims made in support of the protection visa application. The Tribunal finds the inconsistencies in the evidence significant and has rejected the applicants written claims.
The Tribunal also found the applicants claims that Sikhs currently face persecution in Punjab inconsistent with country information which is detailed in the attachment to this decision.
Actual or imputed Political opinion
Firstly, according to the statement of claim [Mr B] was described as an “active member of the separatist movement known as Khalistan Movement and whilst in India he actively participated in seminars, rallies and youth movements. He attended their movement from 2003 to 2005 and within that time he attended 15 rallies, 10 seminars and 6 youth movements.” It was claimed that because of [Mr B]’s strong ties with the revolutionary group it is highly likely that he and [Ms A] will be harmed.
At the hearing [Mr B] said he has no interest in politics. He said he was never a member any pro Khalistan movement, the BKI or any other political party in India. He has not actively taken part in any rallies, seminars or youth movements. The Tribunal finds that the applicant is not a political activist or member or supporter of the Khalistan movement. He travelled to Australia as a young man with no political profile with an intention to study.
Secondly, according to the written claims after the applicants married in 2008 their parents deserted them and told them there is no place for them in their homes. According to the delegate’s decision when [Ms A] was interviewed by the department she claimed that her parents took out a false First Information Report (police report) against [Mr B]’s parents. [Ms A] also claimed in paragraph 46 of her statement that she is seeking protection in Australia because of her “social class”. She did not expand on this claim at the hearing. She claims her parents do not accept her marriage to [Mr B].
At the hearing [Ms A] gave evidence that although her parents initially disapproved of the Australian wedding ceremony she and her husband followed her parent’s wishes and travelled to India and took part in Sikh marriage ceremony in 2009. [Ms A] said that she has normal relationship with her parents and a very good relationship with her husband’s parents in India. No evidence was provided about [Mr B] or [Ms A] fearing persecution in India due to any family conflict.
Thirdly, it was submitted in the protection visa application that [Ms A] and [Mr B] have received death threats and [Ms A]’s parent’s home has been stoned. At the hearing the applicants did not provide any evidence of any threats of violence against them or their parents. According to the delegate’s decision when [Ms A] was interviewed she conceded that her parent’s house was not stoned. She said her parent’s live a majority Sikh area which is patrolled by the police. Her parents are wealthy and are able to pay bribes to stop any harassment.
Fourthly, DFAT report that according to multiple credible sources 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. The applicants have not expressed any political opinion or desire to supporting any separatist Sikh movement. The Tribunal finds that the applicants have no interest in politics in India and does not accept they will be politically active if they return to India.
Fifthly, the Tribunal found [Mr B]’s evidence about the political activity of his family in India vague and lacking in detail. According to the written claims [Mr B]’s parents are still very active in the Khalistan movement and have distanced themselves from [Mr B] because he left the movement in 2005. According to the delegate’s decision when [Mr B] was asked about his family’s response to his decision to leave the BKI and he stated that his parents accepted his decision and that it was “ok to leave”. The applicant stated that he “never really had trouble with the BKI”.
At the hearing [Mr B] said his father was a member of the BKI in the past but he did not encourage him ([Mr B]) to take part in any rallies or protests. His father has been working in [Country 1] since 2005 and has ceased to be involved in politics.
During the protection interview the applicant claimed that police have caused his family trouble after the death of his [relative] ([year]) and his father was cuffed and questioned. At the hearing the applicant said his father only had trouble with the police on one occasion when he was arrested in about 2001. The Tribunal does not accept that [Mr B]’s father was specifically targeted by the authorities due to his political opinion or the death of a family relative in [year]. The Tribunal does not accept that [Mr B]’s father was arrested and questioned by the authorities in India due to his political opinion.

The Department’s Issue Paper on the treatment of Sikhs in India reports that no sources were located indicating that ordinary Sikhs who openly support the idea of Khalistan are subject to harm. For example, country information confirms that 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.[1] These groups were allowed to demonstrate, without police interference. 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.[2]
[1] Singh, I P 2013, ‘Bhullar's death sentence: Radical Sikh outfits announce Delhi march’, The Times of India, 15 April <
[2] Pandey, B 2010, ‘Poster Boys, Poster Wars’, Tehelka, 4 September <
According to the delegate’s decision the applicant said that his family are trying to leave the BKI but they have not been able to. At the hearing the applicant said that in 2005 his father commenced working in [Country 1] and he has ceased his involvement in politics in India.
The Tribunal accepts that the applicant’s father may have some limited involvement in pro-Khalistan movements in India prior to 2005. The Tribunal finds however that the fact the applicant’s father is able to depart India and travel between India and [Country 1] would indicate that he is not of any interest to the Indian authorities.
The Tribunal also notes that the applicants were able to depart India and travel to Australia without any trouble from the Indian authorities. The Tribunal notes that the applicants have returned to India since they have arrived in Australia. At the hearing the applicants did not claim to have experienced any persecution from the authorities in India or their families or from members of the pro-Khalistan movement when they returned to India. The Tribunal notes that [Ms A]’s parents have also travelled to Australia to visit the applicants on two occasions and returned to India.
The Tribunal has also had regard to a media report referred to in the delegate’s decision that a person called [Mr C] was shot dead by the police [during] a [protest]. According to the reports the protest was between an India far-right party (Shiv Sena) and activists of a Sikh organisation. It was claimed that the victim was a relative of [Mr B]. In the statement of claim it was submitted that at the time of the killing [Mr B] was also threatened despite his association with the movement finishing in 2005. It was submitted that the “Khalistan movement has given him warning and threatened him in numerous occasions that he will be killed upon arrival or kidnapped or tortured.” [Ms A] also claimed that she has “received death threats as I have married an ex member of the group..”
The applicants’ evidence about this incident at the hearing was vague and lacking in detail. No evidence was provided from family members in India to substantiate the claim. The Tribunal does not accept the [Mr B] was threatened indirectly or directly by members of the Khalistan movement.
As stated above the applicant stated at the hearing that he was never a member of any Sikh extremist group. At the hearing [Mr B] did not give any evidence that he was harmed or threatened in any way because of his involvement in the Khalistan movement.
The Tribunal does not accept that the death of [Mr C] in India has any connection to the applicants.
In summary, the Tribunal does not accept that a conflict arose between [Mr B] and his family because he ceased his involvement in BKI or any other pro-Khalistan movement in India. The Tribunal also does not accept that there was any conflict between [Mr B]’s family and [Ms A]’s family in India. The Tribunal does not accept that [Mr B] had come to the adverse attention of member of the BKI or any other pro-Khalistan political movement in India because he ceased being involved in politics in 2005. The Tribunal finds the evidence about [Mr B]’s political activities in India inconsistent and lacking in credibility. As detailed above the Tribunal does not accept the [Mr B] was a member or had any involvement in the BKI or any other pro-Khalistan or Sikh religious movement in India.
Having regard to the applicants’ profile the Tribunal does not accept the applicants will be target of an intentional killing by the police because of their actual or imputed political opinions or because [Mr B]’s father was once a member of pro-Khalistan movement. The Tribunal does not accept [Mr B] and/or [Ms A] have come to the attention of the Indian authorities because of [Mr B]’s political profile. The Tribunal does not accept the police will withhold protection to [Mr B] and/or [Ms A] because of [Mr B]’s political profile or because of their Sikh religion.
In conclusion, the Tribunal has had regard to the country information, the profile of the applicants and profile of [Mr B]’s family in India and is not satisfied that there is a real chance that [Mr B] and [Ms A] will face serious harm if they return to India in the foreseeable future because of their actual or imputed political opinions. The Tribunal finds that their fear of persecution is not well founded.
Sikh religion
At the hearing [Ms A] claimed she experienced discrimination in India because of her Sikh religion. She claims her teachers prevented from studying in Punjabi at school. The Tribunal notes that when questioned at the hearing [Ms A] said her family came from a majority Sikh village where there was no discrimination and she only felt discrimination when she travelled to majority Hindu areas. The applicants did not claim at the hearing that their family were threatened or harmed because of their religion.
The Tribunal has had regard to [Ms A]’s evidence and accepts that she may have experienced societal discrimination because of her Sikh religion at school. The Tribunal does not however accept that the discrimination referred to by [Ms A] amounts to serious harm or significant harm.
Country information confirms that India is the home to 19 million Sikhs that constitutes about 1.9 per cent of the national population. Seventy five per cent of India’s Sikh population resided in Punjab (the applicants’ home area), where they constituted 59.2 per cent of the population.[3]
[3] US Department of State 2012, International Religious Freedom Report 2011 – India, 30 July, Section I Immigration and Refugee Board of Canada 2012, India: Treatment of Sikhs in Punjab (2007-February 2012), IND103968.E, 2 May <
Article 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.
DFAT 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 belief and 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.
The Department’s Issues Paper on the treatment of Sikhs in India reported that no independent human rights organisation reports were located that suggest that ordinary Sikhs in India are ill-treated on the basis of their religion, identity, appearance, etc. Neither the US Department of State International Religious Freedom Report 2012 – India or the United States Commission on International Religious Freedom report discrimination or ill-treatment of ordinary Sikhs.[4]
[4] US Department of State 2013, International Religious Freedom Report 2012 – India, 13 May
The Tribunal does not accept the claim that [Mr B] and [Ms A] will be associated with Sikh extremist groups because of their names. As discussed with the applicants at the hearing [their surnames] are very common in India.
Country information confirms that many 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.
Having regard to the country information and the applicants profile as ordinary overseas students from Punjab who travelled to Australia to study, the Tribunal is not satisfied that there is real chance that [Mr B] and [Ms A] will suffer serious harm because of their Sikh religion if they return to India in the foreseeable future.
For the reasons given above, the Tribunal is not satisfied that Australia has protection obligations under s.36(2)(a) of the Act in relation to Mr Sinh and [Ms A].
Complementary protection
Next, the Tribunal turns to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm (complementary protection criteria).
The types of harm that will amount to ‘significant harm’ are exhaustively defined by s.36(2A).
A person will suffer significant harm if he or she will be arbitrarily deprived of his or her 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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
As detailed above the Tribunal did not find the applicants to be credible witnesses and does not accept that a conflict arose between [Mr B] and his family because he ceased his involvement in BKI or any other pro-Khalistan movement in India. The Tribunal also does not accept that there was any conflict between [Mr B]’s family and [Ms A]’s family in India. The Tribunal does not accept that [Mr B] had come to the adverse attention of member of the BKI or any other pro-Khalistan political movement in India because he ceased being involved in politics in 2005. The Tribunal finds the evidence about [Mr B]’s political activities in India inconsistent and lacking in credibility. As detailed above the Tribunal does not accept the [Mr B] was a member or had any involvement in the BKI or any other pro-Khalistan or Sikh religious movement in India.
Having regard to the applicants’ profile the Tribunal does not accept the applicants will be target of an intentional killing by the police because of their actual or imputed political opinions. The Tribunal does not accept [Mr B] and/or [Ms A] have come to the attention of the Indian authorities because of [Mr B]’s political profile. The Tribunal does not accept the police will withhold protection to [Mr B] and/or [Ms A] because of [Mr B]’s political profile.
Having rejected the applicants’ claims the Tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, that there is a real risk that they will suffer significant harm.
Accordingly, the Tribunal is not satisfied that there is a real risk that the applicants will be arbitrarily deprived of their life; the death penalty will be carried out on the applicants; or the applicants will be subjected to cruel or inhuman treatment or punishment; or the applicants will be subjected to degrading treatment or punishment.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Christopher Smolicz
Member

ATTACHMENT
Country Information
In assessing the applicant’s claims the Tribunal has had regard to DFAT’s Thematic Report on Indian State of Punjab dated 7 December 2016:
In 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.
Despite 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.
In 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.
Over 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.
Some 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.
Many 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.
....
Overall, 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.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

United States Commission on International Religious Freedom (USCIRF) 2012, USCIRF Annual Report – The Commission’s Watch List: India, 20 March

[2017] AATA 1265

13 July 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction