1610602 (Refugee)

[2018] AATA 4312

1610602 (Refugee) [2018] AATA 4312 (3 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610602

COUNTRY OF REFERENCE:                  India

MEMBER:Jason Pennell

DATE:3 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant each of the applicants a protection visa.

Statement made on 3 September 2018 at 2.56pm

CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh – particular social group – Sikh who has abandoned the Sikh traditions – wearing no turban – cutting hair – drinking alcohol – physical assault – fear of killing – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Kavan v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIAC v SZRHU (2013) FCAFC 91
MIBP v SZSCA (2014) 254 CLR 317
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MZYXS v MIAC [2013] FCA 614
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramanium v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZRTN v MIAC [2013] FCCA 583
SZRTN v MIBP (2013) 138 ALD 104
SZSHK v MIBP (2013) 138 ALD 26
SZSKC v MIBP [2014] FCCA 938
WZASD v MIBP [2013] FCCA 1940
Zhang v RRT & Anor [1997] FCA 423

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 on 17 June 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa on 3 August 2015. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s. 36(a) or (aa) of the Migration Act 1958 (the Act).

3.The applicant appeared before the Tribunal on 5 February 2018 to give evidence and present arguments. [The applicant’s wife] also attended before the Tribunal but did not give evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4.The applicant was represented in relation to the review.

5.The issue to be determined by the Tribunal is whether or not Australia owes protection obligations to the applicants. For the reasons set out below the Tribunal has affirmed the delegates decision.

6.The issue to be determined by the Tribunal is whether or not Australia owes protection obligations to the applicants. For the reasons set out below the Tribunal has concluded that the decision under review should be affirmed.

Criteria for a protection visa

7.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

8.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

9.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 themselves of the protection of that country.[1] 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.[2]

[1] s.5H(1)(a) of the Act

[2] s.5H(1)(b) of the Act

10.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.

11.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.

12.An applicant is considered not to be at a real risk of suffering significant harm in a country if:

·it is reasonable for the applicant to reallocate to different area of that country where there is no real risk that the applicant will suffer significant harm;[3] or

·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[4]

[3] Migration Act 1958 s36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

[4]     Migration Act 1958 36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.

Mandatory considerations

13.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 claim

14.The applicant’s written claim for protection are detailed in his application for protection (form 866C) as provided on the Department file No [number] (‘the Department file”) and are as follows (‘written claims’):

Why did you leave that country?

I left India to come to Australia as the spouse of a student granted a student visa. When I was living in India I used to wear a turban which is the traditional head garment of Punjabi’s and those subscribing to the Sikh religion. After arriving in India I stopped wearing a turban and cut my hair which is against the Sikh culture and religion. This frowned upon by the followers of Sikhism in India and anyone who does such act(s) is persecuted by the Sikh followers and put to death. I therefore cannot go back to India as the followers of Sikhism will find me and put me to death.’

What do you think will happen to you if you return to that country?

‘As outlined in 90 above.’

Did you experience harm in that country?

‘As outlined in 90 above.’

Did you seek help within the country after harm?

‘As outlined in 90 above. I cannot seek help in India as India is a very religious and cultural country and those who break with religion. Tradition and culture are shunned by all including the authorities and police.’

Did you move, or try to move, to another part of that country to seek safety?

‘I can’t move due to cultural, traditional and financial reasons. Even if I did move within India I would be located, persecuted and put to death. I would be made an example of to teach and warn others not to do what I did.’

Do you think you will be harmed or mistreated if you return to that country?

‘’Yes I will be persecuted and put to death by the followers of Sikhism.’

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

‘As outlined above.’

Do you think you will be able to relocate within that country?

‘As outlined above.’

15.The applicant provided the Tribunal with the following documents:

(a)Letter for [a named] Hospital dated [in] February 2018 (‘the [Doctor A] Report’).

(b)Various undated photos of the applicant in traditional dress. 

(c)Undated and unsignedletter from [Ms B] (‘the [Ms B] letter’).

(d)Photo of the applicant showing scares on his torso. 

(e)Applicant’s submission dated 17 February 2018.

16.In making its decision the Tribunal has read and considered the documentary evidence provided by the applicant.

17.The applicant seeks to be granted a protection visa on the grounds that he is a refugee or entitled to protection under Australia's complementary protection provisions. The nature of his claims related to the fact that he has acted against the Sikh religion by cutting his hair, no longer wears a Turban and he drinks alcohol. As a result he claims that in the event he returns to India he will be killed by Sikh followers.

18.For the reasons that follow the Tribunal does not accept that the applicant has a well-founded fear of persecution or that 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 he will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicants protection visas.

Country of Reference

19.The applicant claims to be citizen of the Republic of India. The department file contains a copy of the applicants India passport No [number] issued in Jalandhar [in] 2006 and expired [in] 2016. The passport records that the applicant was born on [date] in [his home town], Kapurthala, Punjab India.  The Tribunal finds that the applicant is a citizen of India and that India is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.

Third country protection

20.The applicant claims that he does not hold any other citizenship or have a current right to enter and reside in a third country. However, the 1950 Treaty of Peace and Friendship between India and Nepal gives Indian nationals the right to enter and reside in Nepal.[5]Statutory effective protection places an obligation on the applicant to take all possible steps to avail themselves of the right to lawfully enter and reside in a third country.[6] It is open to the Tribunal to make a finding that the applicant did not have a well-founded fear of persecution or real risk of significant harm if they were returned to India on the basis that they have statutory effective protection in Nepal. However, in this case the Tribunal has found that that there is no real chance that he will suffer serious harm or a real risk that he will suffer significant harm in the event that he returns to India. The Tribunal therefore makes no finding in relation to the applicants’ statutory effective protection in Nepal

[5]    Nepal and India: Status of the Treaty of Peace and Friendship (No1302), including implementation (2012 October 2014) OG61C530222

[6] MIAC v SZRHU (2013) FCAFC 91

Time frames

21.The delegate’s decision details the applicant migration history as follows:

(a)7 August 2009 - the applicant arrived in Australia as a dependent on a [student] visa.

(b)16 September 2010 – [student] visa cancelled and the applicant became unlawful.

(c)31 July 2015 – Applicant applied for a protection (Class XA) visa and associated bridging visa. .

Background

22.The applicant was born on [date] in [his home town in] Kapurthala, Punjab India and is of the Sikh faith. The applicant claims that his father has since passed away but that his mother continues to live in India. He said that he has [specified siblings].   The applicant’s evidence was that he attended schools in his local village [until] year [number]. He did not attend University or College.

23.The applicant’s application for protection records that he has never worked. However, the applicant’s evidence to the Tribunal was that after school he worked in the [specified] industry for approximately 2 to 4 years and then as an unqualified [tradesperson] about 2-4 years. He said that he has worked in Australia as a [a different occupation] for approximately 2 years but is currently unemployed.

24.The applicant’s evidence was that in or about 2008 he met and married his first wife, [Ms C], in Jalandhar, India. He came to Australia on 7 August 2009 as a dependent to his wife’s student visa. He said that in or about 2010 he and his wife separated and he moved out of the house. The applicant was not able recall details of his marriage except in the very broadest terms. His evidence was that his wife arranged for their divorce. However, he was not able to recall any details of his divorce and could not provide any documentation to the Tribunal evidencing either his marriage or divorce. Therefore, while the Tribunal accepts and finds that the applicant did travel to Australia as a dependent on [Ms C’s] student visa, due to the applicant’s inability to provide any information relating to his marriage and divorce and the lack of documentary evidence as to his marriage and divorce, the Tribunal does not accept and finds that he was not married to [Ms C] as claimed.   

25.The applicant movement records show that on 16 September 2010 the applicant’s student visa was cancelled and he remain in Australia unlawfully until making application for protection on 31 July 2015. The applicant’s explanation for his delay in making the application for a protection visa was that he was not aware that could make such an application until a friend had told him to do so. 

26.The applicant’s evidence was that in 2016 he became remarried to [his wife]. He said that they have a son who, at the time of the hearing was [age]. The applicant did not provide any documentary evidence of his marriage [to his wife], however, she was present at the hearing.   

27.In addition to his written claim at the hearing, the applicant claimed that in or about 2007/2008 he had started to cut his hair and drink alcohol on occasions (‘the oral claims’). He said as a result of his behavior community members of the Sikh Temple in his village had hit and beaten him. He said that when he had visited the Sikh Temple the community members including [Mr D] and [Mr E] had beaten him and tried to kill him. The applicant provided the [Ms B] letter and the [Doctor A] Report in support of his claim.

28.The applicant maintains that having cut his hair and the fact that he no longer wears a turban means that he will be killed by the community members of the Sikh temple as he no longer conforms to the traditional Sikh beliefs. The applicant claims that in or about June 2008 he was beaten by members of the Sikh community in which he received a wound to his torso. In support of his claim the applicant provided the [Doctor A] report and the letter from [Ms B]. The applicant’s evidence was that he had not been threatened by any member of the Sikh community while he has been in Australia, a period of approximately 9 years.

29.The applicant claims that he fears returning to India because he will be beaten and killed by the Sikh Temple community members because he had cut his hair, did not wear a Turban and drank alcohol.

Country Information

30.The applicant was referred to the DFAT Country Information Report – India dated 15 July 2015 (‘the DFAT Report’) and the DFAT Thematic report Indian State of Punjab dated 7 December 2016 (‘the Punjab Report’).

31.In relation to the Sikh community in Punjab the Punjab Report states as follows:

Sikhs

3.7Sikhism is a monotheistic religion founded in the Punjab region in the 15th century. Sikhs consider themselves disciples of the Ten Gurus, beginning with Guru Nanak (1469-1539) and ending with Gobind Singh (1666-1708). Practising Sikhs are physically identifiable due to a number of distinguishing features, including the requirement to wear the five kakaars (also known as the 5 Ks): Kesh (uncut hair); Kangha (a wooden comb); Kara (a metal bracelet); Kachera (loose-fitting cotton undergarments); and Kirpan (a dagger or sword with a curved blade). The 5 Ks are considered articles of faith by both men and women. In practice, many Sikh men and women trim or shave their hair or dispense with one or all 5 Ks in daily life. Men often wear a dastaar or turban to cover their hair; Sikh women wearing turbans is less common, but some do cover their hair.

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

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

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

32.Sikhs are reported to have varying attitudes towards the cutting of hair. A cultural profile of Sikhs prepared for the Royal Canadian Mounted Police in June 1999 indicates that Sikhs, like the believers of other faiths, are divided in terms of the degree of orthodoxy they accept in their religious practices. Some Sikhs choose to follow the full rigors of their faith, others discard the outward symbols but retain the inner beliefs, while still others appear to have only a casual attitude towards religion.[7]

[7] Duguay, J.M.G. & Grant S.A. 1999, Cultural Profile of Sikhs, Royal Canadian Mounted Police, 24 June < Accessed 20 April 2001 [Deleted]

33.It is reported that Sikhs have been prohibited from cutting their hair since 1699, about two centuries after the religion was founded.[8] Kesh, or uncut hair, is one of the five Ks, which are “five physical symbols of faith worn by Sikhs” dating from the Khalsa Panth’s creation by Guru Gobind Singh. The other Ks are Kara, which is a steel bracelet, Kanga, a wooden comb, Kaccha, which are breeches, and the Kirpan, a steel sword. They symbolise that the Sikh wearing them is dedicated “to a life of devotion and submission to the Guru.”[9]

[8] Gentleman, A. 2007, ‘For many young Sikhs, a turban is old hat’, International Herald Tribune, 30 March, FACTIVA, p. 2

[9] ‘The Five Ks’ 2009, BBC, 29 September < Accessed 17 April 2012

34.The Khalsa Panth is “[t]he collective body of Sikhism”.[10] Sikhs who take initiation as members of the Khalsa swear to observe the five Ks.[11] Among the instructions given to an initiate in the Khalsa baptism ceremony is that the initiate “shall never remove any hair from any part of thy body.”[12] The BBC reports that it is forbidden for Sikh men to trim their beards.[13]

[10] Singh, K. n.d., ‘Sahajdhari Sikhs and Khalsa’, Sikh Review < Accessed 23 September 2005

[11] McLeod, H. 2008, ‘The five Ks of the Khalsa Sikhs’, The Journal of the American Oriental Society, 1 April, FACTIVA, p. 3

[12] Sikhs.org n.d., The Khalsa, paras. 3 & 4 < Accessed 17 April 2012

[13] ‘The Five Ks’ 2009, BBC, 29 September < Accessed 17 April 2012

35.According to Dr Harjinder Singh Dilgeer, who is referred to in an undated paper as a prominent Sikh scholar, the very large number of persons born as Sikhs who have cut their hair have no right to still express their claim to Sikhism. He states that “[i]n Sikhism, hair, beard, moustache are an obligation. There cannot be any exception. A man is a Sikh only if he has unshorn hair on each and every part of his body. (But, only unshorn hairdo [sic] not make a Sikh. One must get initiation and live one’s ‘Me’ according to fundamental principles of Sikhism).”[14] Another Sikh scholar, Dr Jarnail Singh, indicates, however, that “a person could stay in the Sikh faith for a long time without being baptized.” He also indicates that the “wearing of the five K’s is not obligatory for non-baptized Sikhs,” although “they do start wearing these symbols long before being baptized. In a sense it is the evolution of the individual towards the final goal, keeping of unshorn hair is usually the start of the process. Hence every Sikh, baptized or not, has the right to wear these symbols.”[15]

[14] Singh Dilgeer, H., ‘The Sikhs and their religion’ in Singh Holland, B. n.d., How Europe is indebted to the Sikhs? Global Sikh Studies.net, pp. 32 & 36 < Accessed 18 April 2012

[15] Sikhs.org n.d., Comments from Sikh Scholars about who is a Sikh < Accessed 17 April 2012

36.A small proportion of Sikhs take initiation as members of the Khalsa, and they are “Amrit-dhari Sikhs (those who have drunk the amrit of initiation), as opposed to the Kes-dhari (those who maintain the Kes).”[16] An historical dictionary of Sikhism indicates that “Kes-dhari Sikhs are those who do keep their hair uncut, forming a large but indeterminate majority of the Panth... Kes-dharis are generally (if loosely) regarded as the Khalsa, but only a small minority of them actually take initiation into the Khalsa. The remainder do not necessarily observe all of the Rahit..., though they do retain their hair.” The Rahit is “[t]he code of belief and discipline which all amrit-dhari Sikhs… vow to observe at initiation into the Khalsa”.[17] An April 2008 article in The Journal of the American Oriental Society comments on whether Sikhs who are not Amrit-dhari Sikhs are freed from observing the five Ks. It is stated in the article that:

In theory they may be released, but the strict variety of Sikh thinking certainly does not agree. According to this strict view every Sikh, whether formally a member of the Khalsa order or not, is bound to observe the Five Ks, and those who cut their hair transgress their faith. At least they should maintain their uncut hair. Those who do not maintain it are branded mona or “shaven,” and some strict Amrit-dharis regard them as patit (“fallen,” apostate). The term mona should be clearly separated from sahaj-dhari when it is evident that the accused Sikh had previously been an Amrit-dhari or a Kes-dhari, or belongs to a family with Khalsa affiliation that uses the name Singh for males or Kaur for females. The Sahaj-dhari Sikh is, in contrast, one who maintains a conscious refusal to follow the Khalsa order and who is accordingly free to set aside the Five Ks. Very few Sikhs would call themselves Sahaj-dharis in the proper sense of the term, virtually all of them Khatri and Arora Sikhs who do not adopt the names of Singh or Kaur.[18]

[16] McLeod, H. 2008, ‘The five Ks of the Khalsa Sikhs’, The Journal of the American Oriental Society, 1 April, FACTIVA, p. 3

[17] McLeod, W.H. 1995, Historical Dictionary of Sikhism, The Scarecrow Press Inc., London, pp. 120 & 171

[18] McLeod, H. 2008, ‘The five Ks of the Khalsa Sikhs’, The Journal of the American Oriental Society, 1 April, FACTIVA, p. 3

37.An undated article by a former president of the World Sikh Council – America Region indicates that “Sahajdhari Sikh means a slow adopter of Sikhism”. These were members of the congregation (Sangat) “who were desirous to become a Sikh, but needed more time to fulfill their commitment as a Sikh.” Sikhs who believed “in the teachings of Guru Nanak, and follow many commitments of the Sikh way of life, yet they do not keep hair, (which is the first condition in Sikhism); these people are called the Sahajdhari Sikhs.”[19]

[19] Singh, K. n.d., ‘Sahajdhari Sikhs and Khalsa’, Sikh Review < Accessed 23 September 2005

38.In April 2008, it was reported that the term Sahaj-dhari was increasingly “used for any Sikh who cuts his or her hair, thereby avoiding the pejorative title of mona.”[20] A more recent article indicates that there had been confusion and legal conflicts in the Sikh community over the term Sehajdhari. A former general secretary of the SGPC[21] (Shiromani Gurudwara Prabandhak Committee, an elected forum of the Sikh clergy),[22] Manjit Singh Calcutta, said that Sehajdhari “is a combination of two terms ‘Sehaj’ (gradually) and ‘Dhari’ (loosely translated as ‘evolving’), or someone who evolved slowly as Sikhs.” A person outside the Sikh religion who wanted to embrace Sikhism gradually could be called Sehajdhari, but those born in Sikh families “who get their hair shorn are ‘patit’ and not ‘sehajdharis’.” Others, however, including Sehajdhari Sikh Federation president Paramjit Singh Ranu, questioned this interpretation, saying only amritdhari Sikhs who cut their hair could be called patit, not persons born in Sikh families who had never maintained hair.[23] In a decision in December 2011, the Punjab and Haryana High Court “made it clear that it would not express any views as to who constitutes a ‘Sikh’ or whether a ‘Sehajdhari Sikh’ -- who trims or shaves his beard -- can also be a ‘Sikh’.”[24]

[20] McLeod, H. 2008, ‘The five Ks of the Khalsa Sikhs’, The Journal of the American Oriental Society, 1 April, FACTIVA, p. 3

[21] ‘Who is a “sehajdhari”?’ 2011, The Times of India, 3 September, FACTIVA

[22] Lakshmi, R. 2009, ‘A ritual slowly unravels in India’, The Washington Post, 29 March < Accessed 30 March 2009

[23] ‘Who is a “sehajdhari”?’ 2011, The Times of India, 3 September, FACTIVA

[24] ‘Sehajdhari Sikhs get their voting rights back’ 2011, The Times of India, 22 December, FACTIVA

39.It has been reported that “[m]any Sikhs cut their hair and do not wear turbans. This is particularly marked amongst Sikhs living overseas.” In the Punjab, which is the home of the Sikh religion, no one could “put a figure on hair-cutting amongst Sikhs. Frequently, however, one reads of its widespread occurrence.” In terms of caste, more than 60% of Sikhs are Jats, “and in the Punjab’s villages where most Sikhs live, many Jats, confident of their status as Sikhs, regularly cut their hair. Indeed modern practice would suggest that the figure is much higher than is usually assumed.” Other castes which lack this confidence are reported to be “stricter in observing the tradition. This is particularly the case with the urban castes of Khatris and Aroras, where the incidence of hair-cutting is much less frequent amongst the few members of those castes who affirm the Sikh faith.”[25]

[25] McLeod, H. 2008, ‘The five Ks of the Khalsa Sikhs’, The Journal of the American Oriental Society, 1 April, FACTIVA, pp. 2-3

40.In March 2009, it was reported that “[t]he rapidly shrinking number of young Sikhs who wear turbans and have unshorn hair” had alarmed many in the Sikh religious minority. There were no formal surveys, but community groups said that only 25% of Sikhs aged less than 30 followed the practice. Many young Sikhs had said “the daily tedium of combing and tying up their long hair and a desire to assimilate” were pushing them to give up the turban. Earlier, during the years of armed militancy from 1984, many Sikhs had sought to escape police brutality by cutting their hair and discarding their identity, according to Ishwinder Singh Chadha, a member of the Institute of Sikh Studies. Young Sikhs had also lost pride in their identity when turbaned Sikhs were caricatured in TV shows and movies in the 1990s.[26]

[26] Lakshmi, R. 2009, ‘A ritual slowly unravels in India’, The Washington Post, 29 March < Accessed 30 March 2009

41.An earlier March 2007 report refers to Sikh spiritual leaders voicing “dismay at the rapidity with which young men are trimming their hair and abandoning the turban, the most conspicuous emblem of the Sikh faith.” Jaswinder Singh, a lawyer and leader of a “turban pride” movement in Amritsar in Punjab, “estimated that half of India’s Sikh men now forgo the turban, compared with just 10 percent a couple of decades ago.” He believed the dwindling numbers of turban wearers reflected encroaching Westernisation and the accelerating pace of Indian life more than a loss of spirituality. The harassment of Sikhs travelling overseas by airport security personnel since the September 2001 attacks in the United States were also reported to have contributed to Sikhs removing their turbans.[27]  Many young Sikh men reportedly said they had cut their hair to escape humiliating turban searches at Western airports or to avoid being thought of as Muslims.[28]

Treatment

[27] Gentleman, A. 2007, ‘For many young Sikhs, a turban is old hat’, International Herald Tribune, 30 March, FACTIVA, pp. 1-2

[28] ‘Western intolerance forcing Sikhs to shed turbans’ 2006, Indo-Asian News Service, 24 November, FACTIVA, p. 1

42.The June 1999 cultural profile of Sikhs prepared for the Royal Canadian Mounted Police indicates that some Sikhs consider it a grave sin for a Khalsa Sikh to cut his hair. Such Sikhs may consider this person an outcaste or “Pantit”, although most would not carry this matter that far. For others, cutting the hair is simply acknowledged as a personal choice or pragmatic solution to fitting into western society.[29]

[29] Duguay, J.M.G. & Grant S.A. 1999, Cultural Profile of Sikhs, Royal Canadian Mounted Police, 24 June < Accessed 20 April 2001

43.The previously mentioned article from April 2008 also indicates that there are those who hold the strict view that every Sikh is bound to observe the five Ks, and those who do not maintain their uncut hair “are branded mona or ‘shaven,’ and some strict Amrit-dharis regard them as patit”.[30] According to Dr Harjinder Singh Dilgeer, when a Sikh has undergone initiation, disobeying the prohibition on keeping unshorn hair “makes a Sikh (in fact former Sikh) an apostate and he/she has to get reinitiation before calling himself/herself a Sikh.” At the time of initiation, a Sikh is commanded not to have social relations with those who cut their hair.[31]

[30] McLeod, H. 2008, ‘The five Ks of the Khalsa Sikhs’, The Journal of the American Oriental Society, 1 April, FACTIVA, p. 3

[31] Singh Dilgeer, H., ‘The Sikhs and their religion’ in Singh Holland, B. n.d., How Europe is indebted to the Sikhs? Global Sikh Studies.net, pp. 31-32 < Accessed 18 April 2012

44.In relation to Sahajdhari Sikhs, the undated article by a former president of the World Sikh Council – America Region states:

it can be presumed that the Sahajdhari Sikh from the time of the Gurus were always welcomed in the congregation (sangat), to earn a time for complete transformation of his mind towards the Guru’s teaching, and finally to get baptized into the fold of Khalsa, the brotherhood, at an earliest opportunity.[32]

[32] Singh, K. n.d., ‘Sahajdhari Sikhs and Khalsa’, Sikh Review < Accessed 23 September 2005

45.In 2007, Sikh spiritual leaders were reportedly voicing “dismay at the rapidity with which young men are trimming their hair and abandoning the turban”.[33] Elders in families were reported in 2006 to be fighting a losing battle against young Sikh men cutting their hair.[34] It has been reported that with the decline in turban-wearers, the Sikh community was “thinking up ways to draw young people back to the tradition”, including a group organising an annual Turban Pride Day and a beauty pageant for turbaned Sikhs.[35]

[33] Gentleman, A. 2007, ‘For many young Sikhs, a turban is old hat’, International Herald Tribune, 30 March, FACTIVA, p. 1

[34] Yadav, P. 2006, ‘In Punjab, the turban is disappearing fast’, The Times of India, 31 October, FACTIVA, para. 4

[35] Lakshmi, R. 2009, ‘A ritual slowly unravels in India’, The Washington Post, 29 March < Accessed 30 March 2009

46.The above-mentioned March 2009 article refers to one young Sikh saying that after he cut his hair, his father, who considered the act blasphemous, was angry and his mother wept.[36] Another article from October 2006, which refers to one young Sikh defying family elders by getting his hair cut, also indicates that for Sikhs going abroad, many felt it was easier to travel without the turban as Sikhs were being mistaken for Afghans and Muslims. For this reason, in a lot of cases, there was family sanction for cutting hair.[37] In March 2007, lawyer and leader of a “turban pride” movement in Amritsar in Punjab, Jaswinder Singh, indicated that working mothers who were too rushed to help their sons with mastering turban-wearing “increasingly just shrug and let their children cut their hair.”[38]

[36] Lakshmi, R. 2009, ‘A ritual slowly unravels in India’, The Washington Post, 29 March < Accessed 30 March 2009

[37] Yadav, P. 2006, “‘Pagri not very attractive, out of tune with times’”, The Times of India, , 31 October FACTIVA

[38] Gentleman, A. 2007, ‘For many young Sikhs, a turban is old hat’, International Herald Tribune, 30 March, FACTIVA, pp. 1-2

47.It was reported in March 2009 that a medical college run by the SGPC had said that four students who had cut their hair did not fit in the category of Sikh, and were denied admission to the college under a Sikh quota. The students subsequently petitioned the High Court in relation to the decision.[39] Another article refers to a 2008 case involving the admission of a Sikh girl into an SGPC run institution, whose “case was eventually rejected after the community leaders and legal experts decided the definition of Sikh, wherein only a Keshadhari could be called a Sikh.” In an affidavit presented in the High Court by the SGPC, it was stated that “[a] person born into a Sikh family cannot claim to be a Sehajdhari by trimming or cutting his/her hair, beard or eyebrows in any manner”.[40]

[39] Lakshmi, R. 2009, ‘A ritual slowly unravels in India’, The Washington Post, 29 March < Accessed 30 March 2009

[40] ‘Who is a “sehajdhari”?’ 2011, The Times of India, 3 September, FACTIVA, p. 1

48.A somewhat dated March 1999 Immigration and Refugee Review Board of Canada response to information request refers to the comments of a professor of anthropology and specialist on Sikh militancy at the University of Maine in Orono, who indicated that Sikhs who engaged in ‘anti-Sikh’ behaviours such as cutting their hair might be harassed by other Sikhs. The professor stated that there was “some evidence that Sikhs who ‘veer from the path’ may be harassed by other Sikhs, but this would relate more to ‘anti-Sikh’ behaviours such as smoking, drinking or cutting of the hair.”[41]

[41] Immigration and Refugee Review Board of Canada 1999, India: Potential problems faced by a Sikh who converts to Islam, IND31302.E, 2 March

49.In relation to the internal relocation for people in Punjab the Punjab Report states as follows:

INTERNAL RELOCATION

5.8Punjab has a long history of migration, both within India and overseas. There are no significant legal or administrative barriers to internal migration, and many Punjabis (particularly young people) move to other parts of the country for education and employment opportunities. Similar to the situation for international migration, sources in Punjab unanimously told DFAT that employment and education opportunities are the overwhelming motivation for internal relocation from Punjab to other parts of India. There are regular domestic flights and trains in and out of Punjab. While road safety is a problem right across India, the roads connecting Punjab with major city centres such as New Delhi do not face a significant risk of security incidents. The neighbouring state of Haryana has experienced short periods of violence in 2016, including road blockades, arising from an agitation by the Jat community for affirmative action entitlements.

5.9DFAT assesses that internal relocation may be a viable option for people in Punjab seeking to avoid certain types of mistreatment. New Delhi in particular is a popular destination for many people from Punjab seeking improved economic opportunities and relatively greater social freedoms. However, DFAT also notes that attempts to relocate internally to avoid harm may not be successful. For example, there are reports of honour killings of people who have relocated internally to avoid the consequences of having relationships against the wishes of their families. In some cases the families have convinced them to return by pretending to accept the relationship, before performing the honour killing; in other cases the families have followed the couple to their new city of residence before attacking them. Nonetheless, DFAT assesses that such cases are rare, and a couple willing to relocate to avoid possible harm is typically able to do so.

50.In addition, as to internal migration within India the DFAT report states as follows:

Internal Migration

5.13Section 19(1)(d) an (e) of India’s Constitution guarantees citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India subject to the reasonable restrictions in the interest of the sovereignty and integrity of India and security of the State. 

5.14The DFAT report[42] notes that there is a high rate of mobility within India. It advises that the internal migration flows are substantial but difficult to enumerate. The state of Punjab[43] has a long history of migration both internally and overseas. There are no significant legal or administrative barriers to internal migration and many Punjabis move to other parts of the country for education and employment opportunities.

5.15The DFAT report[44] also notes that internal reallocation in India may be limited by factors such as language, lack of documentation, lack of familial or community networks, lack of financial resources, lack of employment opportunities or discrimination based on gender, ethnicity, religion or caste.  However, the DFAT report states that despite such difficulties millions of Indians successfully relocate within India temporarily or permanently every year. It also advises that it is possible to obtain work in the large informal sector without papers. DFAT reports that there is a large range of variable internal options for individual seeking protection from discrimination or violence.

5.16More particularly, DFAT[45] assess that internal relocation may be a viable option for people in Punjab seeking to avoid certain types of mistreatment. New Delhi in particular is a popular destination for many people from Punjab seeking improved economic opportunities and relatively greater social freedoms.[46] The DFAT report notes that circumstances in which people have been the victim of an honor killing after relocating to another part of India to avoid the consequences of having a relationship against their family’s wishes are rare.[47] 

[42] DFAT Report at 5.14, p.21

[43] DFAT Thematic Report Indian State of Punjab dated 7 December 2016 at p.21

[44] DFAT Report at 5.17, p.21

[45] DFAT Thematic Report Indian State of Punjab dated 7 December 2016 at p.22

[46] ibid

[47]    ibid

Credibility

51.When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

52.The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[48]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[49]

[48] s.5AAA Migration Act 1958.

[49] (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

53.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[50] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

[50]    Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

54.If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[51] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

[51]    The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

55.The Tribunal finds and accepts the following evidence of the applicant that:

(a)he is of the Sikh faith.

(b)his father has passed and his mother continues to live in India.

(c)he has [specified siblings].

(d)he attended school in his local village [until] year [number].

(e)he did not attend University or College.

(f)he worked in the [specified] industry and as an unqualified [tradesperson] prior to traveling to Australia. 

(g)he traveled to Australia in 2009 as a dependent on [Ms C’s] student visa.

(h)he married [his wife] in 2016 and they have a son.

56.The applicant in this case did not present as a credible witness. His evidence was generally evasive, vague and lacking in detail. The applicant did not provide the Tribunal with any evidence of his first marriage and subsequent divorce. In addition, the applicant was not able to describe in any detail the incident by which he says he was beaten and injured by the community members of the Sikh Temple in June 2008.

Delay

57.Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[52] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[53]

[52] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.

[53] Subramanium v MIMA (1998) VG310 of 1997

58.In this case the [applicant] arrived in Australia on 7 August 2009 as a dependent on a [student] visa. On 16 September 2010 his student visa was cancelled and he became unlawful. Despite claims for protection, the applicants did not make an application for a protection visa until 31 July 2015. The applicant says that he was not aware that he could make a claim for protection until on or around July 2015. In circumstances where the applicant claims to have been harmed while he was in India Tribunal does not accept the applicants explanation for his delay in making an application for protection visa. Accordingly, the Tribunal has taken the applicants delay in making his application for a protection visa into account in making its decision

Applicants claim  

59.There were a number of inconsistencies and implausibility’s in the applicants’ claims that have caused the Tribunal not to accept parts of his evidence.

60.The applicant provided photos of him wearing a turban which were said to have been taken in India. These photos were not very helpful as they appear to taken on formal occasions when traditional dress would reasonably have been expected to have been worn. The applicant did not provide any details as to when or in what circumstance’s they photos were taken. The applicant’s passport, issued [in] 2006, shows the applicant with short hair and without a Turban. Therefore given that the applicant appears to have had short hair since July 2006, the photos provided are not helpful to the Tribunal and accordingly the tribunal has given them little weight.

61.In addition the applicant provided the Tribunal with a photo of him showing a scare on the right side of his torso. He said that it was inflicted during one of the beatings he received from the community members.  The [Doctor A] report dated [in] February 2018 confirms that the applicant attended his clinic [in] June 2008 (almost 10 years before) for treatment of a blunt abdominal injury. However, it does not provide any evidence as to what caused the injury or the circumstances in which the injury was inflicted on the applicant.   

62.The [Ms B] letter confirms an attack on the applicant in June 2008 by [Mr D] and [Mr E] as members of the Gurdwara[54] Committee. The letter however, is undated, does not describe the circumstances in which the attack took place and does not detail any injuries the applicant suffered or any treatment received as a result of the attack. In addition the author does not detail his relationship with the applicant or how he came to be a witness of the attack. Finally, the letter does not state any the reason for the attack and makes not reference to the applicants claim that he had rejected the Sikh traditions by cutting his hair, drinking and not wearing a turban. As a result, the Tribunal places no weight on the [Ms B] letter. While the Tribunal accepts that the applicant did incur an abdominal injury in or about June 2008, it does not accept, and finds that the applicant was not injured as a result of any attack by community members of the Sikh temple as claimed by the applicant.

[54] The Sikh temple is known as Gurdwara.

63.Finally, the applicant’s passport is dated [in] 2006 and shows the applicant with short hair. There is no evidence of any attack on the applicant between July 2006 and June 2008. It therefore appears that the applicant had short hair for almost two years without incident. According to the available country information it appears that while Sikh spiritual leaders have expressed dismay at the rate of young men who have cut their hair and abandoned the turban, it appears that it has been accepted generally in the community. As a result the Tribunal does not accept the evidence of the applicant that the applicant was beaten by committee members of the Sikh temple or any other members of the Sikh community in or about June 2008. 

Refugee Protection 

64.The applicants applied for a protection visa prior to 31 July 2015, therefore the Tribunal must be satisfied, pursuant to s.36(2)(a) of the Act, that the applicant is  person in respect of whom Australia has protection obligations because they are refugee pursuant to s.5H of the Act. That is, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[55]

[55] s.5H(1)(a) of the Act

65.Pursuant to 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.  

66.By his written claims the applicant states that he cannot go back to India because the followers of the Sikhism  and in particular the community members of the Sikh temple will find him and put him to death due to the fact that he drinks, has cut his hair and that he no longer wears a Turban. As a result, the Tribunal finds that the applicant’s fear of persecution does arise by reason of his religion and membership of a particular social group being a Sikh who has abandoned the Sikh traditions, in particular wearing a Turban, not cutting  hair and drinking alcohol.

67.However, the Tribunal has found that the applicant was not attacked by any community member of the Sikh temple or any other member of the Sikh community for any of the reasons claimed by the applicant.  In addition based on the available country information, the applicant’s delay in making his application and the lack of creditable evidence in relation to his alleged attack in June 2008, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm as a result of him having cut his hair, drinking and not wearing a turban in the vent he returns to India. Accordingly the Tribunal finds that the applicant is not a person to which Australia has protection obligations as a refugee pursuant to s.36(2)(a). 

68.At no stage did the applicant advance any other reason in their written or oral claims, such as their race, nationality or religion, that they are owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims to be considered.

Complementary Protection

69.The applicant states that as a necessary and foreseeable consequence of him returning to India there is a real risk that he will suffer significant harm from community members of the Sikh Temple.[56]  The types of harm that will amount to ‘significant harm’ are exhaustively defined by s.36(2A) of the Act.[57] Under this provision, 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.

[56]   s.36(2)(aa) of the Act

[57]   SZRTN v MIAC [2013] FCCA 583 (Judge Nicholls, 21 June 2013) at [43] (upheld on appeal: SZRTN v MIBP (2013) 138 ALD 104).

70.The test under s.36(2)(aa) is a forward-looking one of reasonable foreseeability.[58] The ‘necessary and foreseeable consequence’ element in s.36(2)(aa) attaches to the risk of harm, rather than the actual occurrence of harm. That is, the exposure to the risk (and not the harm itself) must be a necessary and foreseeable consequence of return.[59]In this case, based on the country information it is not reasonably foreseeable that the applicant will be beaten and killed by community members of the Sikh temple and be significantly harmed in the event he is returned to India.

[58]  WZASD v MIBP [2013] FCCA 1940 (Judge Lucev, 29 November 2013) at [30]..

[59]   SZSKC v MIBP [2014] FCCA 938 (Judge Lloyd-Jones, 16 May 2014) at [71]-[73].

71.Section.36(2)(aa) requires that there be both ‘substantial grounds’ and ‘a real risk.’ This suggests that ‘substantial grounds’ imposes an evidentiary standard and ‘real risk’ an assessment of the probability of the 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'. ^[60] As a result based on the country information, the applicants delay in making his protection application, the lack of any independent evidence to verify that the applicant was injured as a result of him cutting his hair, failing to wear the turban or drinking the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of significant harm, including the torture, being subjected to cruel or inhuman treatment or punishment or being subjected to degrading, for reasons based on the applicant’s economic circumstances. 

[60]    MIAC v SZQRB [2013] FCAFC 33,

72.The applicant’s credibility is relevant to the question of substantial grounds for believing there is a real risk.[61] In this case, the Tribunal has found that the applicant was not attacked in India by community members of the Sikh temple or any member of the Sikh community as a result of having rejected or refusing to follow the Sikh traditions as claimed. It is therefore not satisfied that the applicant will suffer significant harm in the event he is returned to India. Having considered all the applicant’s claims and accepted circumstances, both individually and cumulatively, the Tribunal is satisfied that there are no 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 of significant harm, including that the applicant will suffer harm by arbitrarily being deprived of his life;  suffering from the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s36(2)(aa).

[61]   SZSHK v MIBP (2013) 138 ALD 26 at [31].

Reallocation

As a Refugee

73.The Tribunal considered whether the applicant might reasonably relocate to another part of India. Section 5J of the Act states that a person has a well-founded fear of persecution if ‘the real chance of persecution relates to all areas of a receiving country.’[62] In addition, in SZATV v MIAC (2007) 233 CLR 18 the High Court confirmed as a general proposition that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[63] Similarly, it may be reasonable for an applicant to remain in a place in that country where he or she will be safe.[64]

[62] Section 5J(1)(c) of the Migration Act 1958

[63]   SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.

[64]   MIBP v SZSCA (2014) 254 CLR 317.

74.Therefore, for the purposes of s.36(2)(a) if the applicant was a person  in respect of whom Australia has protection obligations under the Act (which the Tribunal specifically states that he is not), then it would be necessary to consider whether the he might reasonably relocate to or remain in a region of his country, free of the risk of persecution.  The DFAT report on India notes that section 19(1)(d) and (e) of the Indian Constitution guarantees that its citizen are free to move throughout the territory of India and the have the right to settle and reside in any part of the country.[65]  The Report notes that there is a high rate of internal mobility within India. The 2001 Census stated that there were around 307 million internal migrants in India.[66] The DFAT report notes that internal relocation may be limited by a range of factors including language barriers, lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities and discrimination based on ethnicity, religion or caste.[67]

[65]   DFAT Country Information Report India 15 July 2015 p.21

[66]   Ibid.

[67]   Op Cit p.22

75.The applicant claims that he would suffer harm from followers of the Sikhism in India generally. However, his evidence and the evidence upon which he relies, specifically the [Ms B] letter only referred to the threat from community members of his Sikh temple in particular [Mr D] and [Mr E]. The applicant did not provide any evidence in support of his claim that he would be harmed generally by the followers of the Sikhism. Therefore, even if the Tribunal was to accept the applicants evidence that he would be beaten and killed by the members of the Sikh temple in his local village (which it specifically does not), based on the country information there is no real chance that the applicant would be harmed in the larger centres such a Delhi or Jaipur by reason that he no longer follows the Sikh traditions and has cut his hair, does not wear a Turban or even drinks.

76.Therefore, on an objective basis it is reasonable to expect that the applicant would be able to relocate to another area in India where there is no real chance he will suffer serious harm.[68] Accordingly, by reason of the applicants being able to relocate in India it is taken that there is no a real chance the applicants will suffer serious harm in India by reason of them being a member of a particular social group that is, as potential victims of an honour killing. 

[68]   See MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013) at [39].

Complementary protection.

77.For the purposes of complementary protection an applicant is taken to be not at risk of suffering significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm’[69] That is, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared harm.[70] 

[69]   s.36(2B) of the Act

[70]   SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.

78.For relocation to be effective it is necessary that the real risk of harm be localised rather than nation-wide.[71] For the reasons given above the Tribunal finds that there is no real risk that the applicants will suffer significant harm in other areas of the country of India. Accordingly the Tribunal finds that the real risk of significant harm the applicant will suffer is localised to area of [his home town in] Kapurthala, Punjab in India.

[71]   In MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013) at [37].

79.Therefore, for the reasons provided above the Tribunal finds that the applicant could relocate to another area within India such that there would not be a real risk that the applicants will suffer significant harm. Accordingly, pursuant to s.36(2B)(a), there is taken not to be a real risk that the applicant will suffer significant harm in India and as such he does not satisfy s.36(2)(aa) in this regard.

80.In all the circumstances the applicant does not have well-founded fear of persecution based on his claim and does not satisfy s.36(2)(aa), if he is returned to India. 

81.At no stage did the applicant advance any other reason in his written or oral claims that the applicant is owed Australia’s protection obligations based on his nationality or religion. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

CONCLUSION

82.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(1)(a). Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

83.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

DECISION

The Tribunal affirms the decision not to grant each of the applicants a protection visa.

Jason Pennell

Member