1613261 (Refugee)

1613261 (Refugee) [2019] AATA 4964 (1 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613261
COUNTRY OF REFERENCE:                  India
MEMBER:Hugh Sanderson
DATE:1 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 November 2019 at 2:09pm
CATCHWORDS
REFUGEE – protection visa – India – imputed political opinion – All India Sikh Students Federation (AISSF) – International Sikh Youth Federation (ISYF) – religion – Sikhism – lack of independent corroborating information – study and employment history in India – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 3 February 2015. The delegate refused to grant the visa on the basis that the delegate did not accept the claims of the applicant.
Background
The applicant was born in India and is currently [age] years old. He provided a copy of his expired Indian passport to the Department.
The applicant is married to [Ms A] and they have two sons, [Child B] who is currently [age] years old and [Child C] who is currently [age] years old. The applicant and his wife first entered Australia in 2008 on a Student visa on the basis that he was the dependant of his wife. Their eldest son remained in India while the applicant and his wife travelled to Australia. The applicant’s wife then gave birth to their second son in Australia.
The applicant was granted a series of Student visas until 2013. His wife applied for a [Permanent Skilled] visa which was refused in 2013. His wife then lodged an application for a [Temporary Skilled] visa which was refused in December 2014. The applicant has returned to India on two occasions since first entering Australia. The first was in January 2011 when he returned to India for almost two months. He returned again [in] July 2013 remaining out of Australia for 14 days.
After the applicant’s wife was refused the [Temporary Skilled] visa in December 2014 the current application was filed. The applicant included his wife and second son as members of his family unit and secondary applicants.
The applicant provided a statement where he set out the claims of why he was applying for a Protection visa. This included the following:
·Due to his profile as a member of the All India Sikh Students Federation (AISSF) he had been arrested and tortured many times by the Central Reserve Police and the Border Security Force after he returned from Pakistan after visiting that country [from] November 2011 [to] November 2011;
·His family was able to release him on the basis that he would not be permitted to leave the country without the authority’s approval;
·The applicant was suspected of having links with the AISSF which supports the International Sikh Youth Federation (ISYF) which is a banned terrorist organisation;
·When he was arrested, he was transferred to other states of India to identify terrorists and was tortured because he could not identify anyone;
·When he went on a pilgrimage to Pakistan he was abducted by AISSF members and encourage to recruit people and collect funds by visiting different parts of India;
·The police arrested him at his residence and then handed him over to forces who detained him and tortured him until he accepted that he was a Sikh militant and they threatened to kill his baby if he failed to identify Sikh militants;
·His family had to bribe officers to release him every time he was taken away and released on the condition that he not leave India without their approval;
·He was followed everywhere he went by police officers, security forces and the Indian Intelligence services;
·When he escaped to Australia, he was told never to return to India as his relatives could no longer help him and when he did return to India after two years in Australia he was advised he had gone back too soon and he would be spotted by Hindu nationalists who would pass on the information and so he lived his life in fear in India;
·He claimed he could not get protection from the Indian government referring to Operation Blue Star and the attack on the Golden Temple carried out by the Indian authorities;
·When the applicant returned to India in July 2013 he was arrested at the airport and the authorities said that they could prosecute him for being a member of and working for AISSF and ISYF;
·The applicant was held in detention until his uncle was able to get him out with the help of a politician and he was told never to return to India; and
·He had not applied for a Protection visa earlier because his wife believed she would be eligible for a permanent residence visa.
The applicant’s wife and son returned to India [in] October 2015 and withdrew their application for a Protection visa.
The applicant was interviewed by an officer from the Department on 10 June 2016. He claimed that he had never been a member of AISSF, but was merely suspected of being a member.
The delegate who considered the application noted the following issues:
·The country information indicated that the ban on the AISSF was lifted in 1985 and the organisation has operated openly, campaigning on a number of Sikh issues, including justice for the victims of Operation Blue Star and remains critical of current and former police in Punjab and Delhi without incurring any harm from current or former members of the police or any other non-state actor;
·Based on the country information, the claims made by the applicant were not plausible; and
·The delegate did not accept the applicant had been of adverse interest to the police, that he had been arrested or imprisoned at any time, or that any threats had been made against his life or welfare.
Based on these findings, the delegate found the applicant did not meet the criteria for the grant of a Protection visa.
Information to the Tribunal
The applicant provided a statement dated 12 October 2018 to the Tribunal where he made the following claims:
·He had been falsely charged and sentenced to prison which was why he had no documents to prove this;
·He could not ask his relatives to assist him as the authorities suspect him of belonging to AISSF intelligence;
·The authorities will not give proof of his detention when they are using their powers to arrest, interrogate and sentence members of AISSF who they consider are involved in terrorist activities;
·He has been arrested numerous times and asked to identify AISSF terrorists and Akali Dal intelligence agents but has been given nothing to prove this;
·The authorities believe he is travelling to Pakistan frequently and was seen in Pakistani Kashmir along with AISSF Sikh militants;
·The applicant’s wife has had to move between her siblings’ houses to avoid police interrogation and as a result he has divorced his wife to show that she is no longer with him;
·The authorities have threatened his wife by saying that if they found her talking to him they would arrest her;
·RSS men and people from the BJP went to his father’s house to find out where he was and they told him if he joined the Indian Army as an intelligence officer they could pardon him and let him return to India; and
·If he returns to India, he could be killed by people from RSS and BJP members.
The applicant provided newspaper reports about the activities of RSS and BJP members.
The applicant provided a further statement dated 21 October 2019 in which he made the following claims:
·After his wife showed the authorities her divorce certificate, they stopped visiting her and so she was able to call him and told him that she wanted to visit Jammu and Kashmir with her relatives and their children;
·When they were travelling there [in] July 2019 on a bus with 20 passengers the security officers ordered them back to Punjab as there was mob violence taking place;
·At [Village 1] on the border with Jammu and Kashmir they were arrested by the Border Security Force and were interrogated;
·The applicant’s wife was held after everyone else had been released because of her strange accent because she had lived in Australia;
·The applicant’s wife was questioned whether she had met the applicant in Jammu and Kashmir and when she refused to answer they beat her stating that they were aware the applicant was a Sikh militant and a member of AISSF;
·The applicant’s wife was released when it was confirmed where she had travelled but was required to report to the police and not to leave her home area without permission; and
·The applicant’s wife never did anything wrong and was unfairly harassed by corrupt officers.
The applicant appeared before the Tribunal on 30 October 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The Tribunal noted there was a certificate on the Department’s file pursuant to s.438 of the Act. The Tribunal described the nature of the documents covered by the certificate. The applicant stated he did not have any issue with the certificate or the information protected by the certificate.
The applicant provided details of his life in Australia. He provided details of his work in India. He said that after high school he went to a [educational institute] but did not graduate from the course he was studying. He then became a [Occupation 1], working full-time from March 1995. The last job he had was in Ludhiana where he was employed as a [supervisor] supervising five people. He said that when he left that job in April 2008 to come to Australia his employer offered him more money to stay at his job because he was so well respected.
The applicant said that in Australia he has attended the Sikh temple with other members of the Sikh community in Australia. He has not been involved in any other organisation or clubs. He said that he had never been involved in any organisation or clubs even when in India. He said that he is not a member of the AISSF, but the authorities suspect that he is. He confirmed that he has never been involved in that or any other organisation. He said the Indian authorities suspect him of being involved because he lives close to the Golden Temple and he visited Pakistan in 1997.
The applicant said that the Indian authorities think that all Sikhs are terrorists. The Tribunal noted that a former Indian Prime Minister was a Sikh. The applicant responded by claiming that the Indian government says that Sikhs cannot be trusted.
The applicant claimed that his problems started about six or seven months after he visited Pakistan in November 1997. He claimed that he was arrested by the authorities and held for about eight days and questioned. He said that he denied that he had any connection with AISSF and was not able to provide any information to the authorities when questioned. Despite this, he claimed that he was taken by train to Tamil Nadu via Delhi. He spent a day in Tamil Nadu and asked to identify people there. They were also asked to identify him. The applicant did not know any of the people who he was shown and they were not able to identify him. He then spent three days being taken back by train to Delhi and then by jeep to Chandigarh where he was released.
The applicant claimed that he was arrested on six other occasions, but held only locally in Amritsar. He said that he would only be held for a couple of days before he was released because he was not able to provide any information to the authorities.
The applicant said the last time he was arrested was when he returned to India in 2013. He said that the authorities initially took all the Sikh boys but then took him to a separate room and told him that he would not be allowed to leave the country and he was detained. He claimed to have been held for a week and was released after his brother intervened and paid a bribe. He was given back his passport. He remained in India for another week before returning to Australia using his passport to depart India.
The applicant claimed that he was the only one in his family who is of interest to the authorities because he travelled to Pakistan. He said that he had no knowledge of anybody else in India who has problems with the authorities like he does.
The Tribunal referred to the country information which indicated that there were no reports of any attacks on members of the AISSF by state or non-state actors in India since the 1990s. The applicant claimed that after 1990 the AISSF has been banned by the authorities. The Tribunal noted that this was incorrect as the ban on AISSF was lifted by the Indian authorities in 1985 and at the time of the last report in September 2013 it was indicated the AISSF was not on the government’s list of prescribed terrorist organisations. The Tribunal also noted that the AISSF’s website does not allege its members have been targeted by authorities and the organisation has operated openly, campaigning on a number of Sikh issues. The applicant claimed that this information was all from the internet and if you pay money the internet will print anything.
The Tribunal noted that the documents the applicant had provided to the Tribunal from the Hindustan Times reported the president of the AISSF had given a press conference in India demanding an independent probe into Hindu right-wing organisations and protesting about various issues. This indicated that the AISSF was of no interest to the Indian authorities and the AISSF was able to operate openly in India. This indicated the claims being made by the applicant were not plausible. The applicant claimed that AISSF are working overseas and if you mention Khalistan in India you will be arrested immediately.
The Tribunal noted that the applicant has not claimed that he is a member of AISSF or has any involvement in promoting Khalistan. The applicant said that although he has no connection, the authorities believe he has.
The Tribunal referred to the information provided by the applicant from Human Rights Watch referring to the Supreme Court rulings in 2017 strengthening fundamental rights in India. The applicant said that this is what it says on the paper, but what happens in India is different.
The Tribunal referred to the information provided by the applicant where he claimed his wife travelled to Kashmir in July 2019 and had problems there. The Tribunal noted that the claims made were that she was attacked by a mob of people and was protected by the authorities but then later questioned. The applicant said that he had provided this information because when his wife went to Kashmir they were asking her where he was.
The applicant said that he left India in 2008 because his wife had said that because the police were after him and giving him a hard time they needed to leave India. The applicant confirmed he returned to India in 2011 for seven weeks. He said that he had no problems there. He said that when he returned in 2013 he had problems as described above. The Tribunal noted that he had not applied for a Protection visa until 2015, seven years after he first arrived in Australia claiming to fear returning to India and almost two years after he claimed he had returned to India and again been arrested. This delay did not support his claim that he faced any problems in India.
The applicant claimed that he had a Student visa and so thought that he could live in Australia. The Tribunal noted this was only a temporary visa. The applicant said that after the Student visa they could then work for a year and then live in Australia permanently. The Tribunal indicated that this was not plausible and that if he genuinely feared returning to India he would have applied for a Protection visa earlier. The applicant said that he did not want to tell anybody about his situation. The Tribunal noted that he would not have to tell anyone in India and he was claiming that his wife had told him that he needed to leave India in 2008 for his own protection and so any claims he made would not be new to her. The applicant claimed that when he got married he had not told his wife about the problems and she only found out about it when the police arrested him. He said that he did not apply for a Protection visa because the other way of living in Australia looked like a more genuine way. He said that in 2013 he had a genuine visa and hoped it would be okay to be able to stay in Australia.
The Tribunal asked if he had any other claims. The applicant referred to two people being killed in Punjab. He acknowledged that these people did not have any association with him, but it showed that people were dying in Punjab if they protested. He said that in the news they say that you can protest, but you can’t really. The applicant confirmed that he was not involved in any protests or protest movement or involved with any organisation that would cause him problems in India. He said that he feared returning to India because he would be arrested and then probably killed.
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 themselves 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 s.5J(2)–(6) and ss.5K–5LA, 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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 applicant has claimed that he is a citizen of India. On the basis of the applicant’s identity documents, including his two expired passports, the Tribunal accepts that the applicant is a national of India. Therefore, for the purposes of s.36(2)(a) of the Act the Tribunal accepts that India is the country of nationality and for the purposes of s.36(2)(aa) of the Act the Tribunal accepts that India is the receiving country.
The applicant has claimed that he fears returning to India because he is a Sikh and the Indian authorities consider Sikhs to be terrorists. He said that although he has had no involvement with the AISSF the Indian authorities believe he is a member of AISSF and they have arrested him due to this fact. He claims that because of his perceived association with AISSF that if he returns to India he will be arrested and likely killed by the Indian authorities.
For the reasons set out below, the Tribunal does not accept the claims made by the applicant. The Tribunal does not accept that the applicant has a profile as a member of the AISSF or that he is perceived as being a member of AISSF or any other organisation which the Indian authorities have any concern about or that would make the applicant of any interest to the Indian authorities or any other organisation or person. The Tribunal is not satisfied that being a Sikh in India, and in particular living in Punjab, the applicant would have a well-founded fear of persecution.
In his application, the applicant claimed that he “feared to live in any part of India due to his profile as a member of the All India Sikh Students Federation (AISSF)”. The applicant stated, however, that he has not been involved in any activities with the AISSF. He has not participated in protests or demonstrations or been involved in the organisation of AISSF in India or at any time while he has been in Australia.
The only claimed association he has with AISSF was when he travelled to Pakistan as part of the pilgrimage. The applicant had obtained the necessary documentation from the Indian authorities to enable him to travel to Pakistan for that visit. The applicant claimed that while in Pakistan he was abducted by AISSF members and encouraged to serve them. Despite this, he did not provide any assistance to AISSF and there is no information that anyone from AISSF or any other organisation has required him to act for them in any way since then. The applicant’s evidence is that he has not provided any assistance to the AISSF or any other organisation and has no association with them.
The applicant claims that he was arrested six or seven months after returning from Pakistan in November 1997 and was detained for about three weeks. He claims that he did not provide any information to the Indian authorities at that time which would indicate that he was a member of AISSF or that he was associated with anybody who he knew was a member of AISSF. Despite this, the applicant claims that he was taken by train on a three-day trip to Tamil Nadu. When there, he was asked to identify people as members of AISSF, however, he was unable to do so. People were asked to identify him as a member of AISSF, however, they were unable to do so. After a day in Tamil Nadu he had a three-day journey back to Chandigarh where, after a relative paid a bribe, he was released.
The Tribunal does not accept this claim is plausible. The Tribunal does not accept that if the applicant was arrested and had been unable to provide any information to the authorities about the AISSF he would then be taken on a three-day trip to Tamil Nadu to simply identify people when he would have been able to do so by a photograph if that was the reason he was taken there. The Tribunal does not accept that if he had not been able to provide information previously about any of the activities of AISSF as he was not a member of that organisation, the authorities would have made arrangements for him to travel by public transport to Tamil Nadu, a journey the applicant said took three days.
The applicant claimed that he had been arrested and held in detention on six other occasions after this. Again, it is not plausible that if the applicant was not participating in any activities of AISSF and that he had not been able to provide the Indian authorities at any time any information about AISSF that he would have been arrested at any time. There would be no reason for the Indian authorities to have any interest in him if they did have any interest at that time with the AISSF.
The applicant has claimed that most recently his wife was stopped after travelling to Jammu and Kashmir and the authorities asked her about the whereabouts of the applicant, beating his wife and saying that they were aware that he was a Sikh militant working with Pakistani Sikh terrorist groups and was a member of AISSF. This information has come directly from the applicant and no information has been provided by his wife. There is no other source to support this claim made by the applicant. There is no information as to why, if the applicant had not returned to India since 2013, the Indian authorities would believe he has returned to India or has been involved in any activities with the AISSF or any other group or organisation either in India or in Australia.
The applicant has provided no independent information to support his claims. Despite claiming that he had been arrested and charged on several occasions, he has provided no documentation to substantiate these claims. Despite claiming his relatives have been required to pay bribes to have him released, he has not provided information from his relatives which would indicate any payment has been made at any time. Although he claims that he cannot provide any documentation because none was given to him, the Tribunal does not accept that he would not be able to have some documentation which could provide some corroboration of his claims.
The applicant’s claims are based on an assumption that the Indian authorities consider AISSF a terrorist group and that the Indian authorities had been targeting the applicant because they perceive him as being a member of AISSF, even though he has never had any association with them and has done nothing to justify the claimed interest the authorities have in him.
The country information does not support the claims made by the applicant. This information was put to the applicant during the hearing. A report dated 12 September 2013[1] reports as follows:
No news reports were located indicating attacks on members of the AISSF by State or non-state actors in India since the 1990s. No media or human rights reports were located indicating arrests or physical harm of people due to membership of AISSF. The AISSF website’s Statements and Press Notes page does not include English-language reports alleging the targeting of its members by authorities.
The ban on the AISSF was lifted in 1985. As of 9 September 2013, the AISSF is not on the Indian government’s list of prescribed terrorist organisations. Since the lifting of the ban on the AISSF, the organisation has operated openly, campaigning on a number of Sikh issues, including justice for the victims of Operation Blue Star and the anti-Sikh violence of November 1984. The AISSF also remains highly critical of the current and former police in Punjab and Delhi. Hitherto, the AISSF has conducted these activities without incurring harm from current or former members of the police, or non-state actors.
[1] Country Advice – India:IND42675 – All India Sikh Students Federation (AISSF) treatment update 12 September 2013
This report is consistent with the information the applicant provided to the Tribunal being a report from the Hindustan Times first published on 1 August 2016[2] and printed by the applicant on 13 October 2018. In this article, it is noted that the president of the AISSF held a press conference in Amritsar where he demanded an independent probe to find out the role of the RSS and other Hindu right-wing bodies in a sacrilegious incident in Punjab. He repeated the demands of the AISSF for a proper investigation into the anti-Sikh riots in 1984 and stated they would be protesting outside the Golden Temple in Amritsar. There was nothing to indicate that the president of the AISSF was prevented from holding the press conference or the subsequent protest or that the authorities had any concern about the activities of AISSF.
[2]
The current list of banned terrorist organisations published by the Indian government does not include AISSF.[3]
[3] National Investigation Agency of the Government of India accessed 31 October 2019.
The applicant also provided a report from Human Rights Watch reporting on the events of 2017. This report[4] referred to military attacks in the state of Jammu and Kashmir and referred to lack of accountability for past abuses and new allegations in the states of Uttar Pradesh, Haryana, Chhattisgarh, and Jammu and Kashmir. It does not report any issues arising in Punjab where the applicant has his home. It notes the Supreme Court rulings on 2017 strengthened fundamental rights including the accountability for security forces violations. There is no indication that the authorities have any interest in any members or the activities of AISSF.
[4] >
The applicant provided a newspaper report from the Hindustan Times first published 24 June 2018 headed “How RSS cadre work for BJP, poll after poll”. Although the report criticises the association between “RSS foot soldiers” and the BJP, it does not indicate that there is any official action against AISSF or members of that association or any reference to RSS activity in Punjab that has caused Sikhs or members or perceived members of the AISSF any problem.
A report from the Department of Foreign Affairs and Trade[5] notes that Sikhs make up the majority; around 16 million people or 58% of the population, in Punjab. The report (at 2.26) notes that there were high levels of violence and unrest during the 1980s and early 1990s, however since the early to mid-1990s, successive governments have taken a stronger stance on security issues, largely eliminating domestic pro Khalistan terrorist groups within the state. The report found (at 2.28) that the overall security situation in Punjab is generally calm and that the general population faces a very low risk of violence or property or other damage.
[5] DFAT Thematic Report – Indian State of Punjab – 7 December 2016
The report found (at 3.5) that violent events involving religion are rare and are not representative of a generally peaceful environment in Punjab. The report found (at 3.10) 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.
The most recent report from the Department of Foreign Affairs and Trade[6] found (at 3.19) that:
Sources agree that, since late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent ‘Khalistan’ may be subject to attention by authorities. DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination.
[6] DFAT Country Information Report – India – 17 October 2018
This information does not support the claim that even if the applicant was a member of AISSF he would face any problems with the authorities over the period that he claims he has been arrested and tortured on multiple occasions. AISSF has been able to operate legally and openly over the period the applicant claims he was arrested and required to identify members of AISSF. The applicant has stated that he has not been involved in any movement for an independent Khalistan and claims that he is only incorrectly perceived to support AISSF by the authorities.
The country information does not indicate the fact that the applicant being a Sikh would mean that he would be the subject of persecution from any state or non-state actor. This is particularly so in the applicant’s home state of Punjab where the majority of people also identify as a Sikh.
The Tribunal finds the country information does not support any of the claims made by the applicant.
There is no information that although the applicant claims he has been targeted by the Indian authorities the applicant’s family, apart from his wife, have had any difficulties in their lives in India. He claims he has relied upon his family to provide bribes to have him released from detention, however, has not provided any statement from any other relative to support this claim or any information which would indicate the payment of money by his relatives for his release at any time.
While living in India until 2008, the applicant was employed or studying. There is no information which would indicate that any claimed interest by the Indian authorities adversely affected his capacity to hold his job and earn an income or that he was not able to advance his career due to any prejudice or persecution against him for any reason. He stated that when he did leave India, his last employer asked him to remain and offered him a higher income. This does not indicate that the applicant was facing any difficulties with the authorities or that he had been arrested for any reason which would have affected his capacity to earn an income and live in peace.
The applicant arrived in Australia in 2008. He claimed that he left India because his wife said that they needed to leave due to the persecution he was suffering from the authorities. Despite this, the applicant did not apply for a Protection visa until 2015, seven years later.
The applicant returned to India in 2011. He claimed that he remained with his family and did not have any problems over that visit. He claimed that when he returned in 2013 he was detained by authorities for a week and was only released after relatives paid a bribe. He claimed that he was not allowed to leave India without the approval of the Border Security Force. He claims that he was able to depart India in 2008, 2011 and 2013 using his passport and did not have any difficulties leaving India. The Tribunal does not accept that if the applicant was of any interest to the authorities and they did not wish him to depart India, as he claims, that he would have been able to depart India on three occasions without any difficulties.
The applicant did not apply for the Protection visa in 2013 when he returned to Australia despite claiming that he was arrested by the authorities and was in fear for his safety after returning to India at that time. The applicant claimed that he did not apply for a Protection visa at that time because he already had a visa to remain in Australia and was planning to apply for a visa to be able to get permanent residence and this looked like a more genuine way of being able to remain in Australia. The Tribunal does not accept this as a plausible reason for not applying for a Protection visa. There was no guarantee that the applicant, as a dependant of his wife as a student, would ever meet any criteria for the grant of a permanent visa in Australia. As it is, the applicant and his wife did not meet any criteria for the grant of a skilled visa and the applicant then filed the Protection visa application.
The applicant also claimed that he did not want to apply for a Protection visa because he did not want to tell anybody about the situation. The Tribunal does not accept this as a plausible reason for not applying for a Protection visa. The applicant claimed that his wife was the person who claimed in 2008 that they needed to leave India due to the persecution he was suffering. The applicant claimed his family were paying bribes to the authorities to allow him to be released. There is no information which would indicate the applicant would be required to tell anybody apart from the Australian authorities so that there would be no reason why his not wanting to tell anybody would be the reason not to apply for a Protection visa.
The Tribunal does not accept that if the applicant had a genuine fear for his safety in India that he would not have applied for a Protection visa either when he first arrived in Australia in 2008 or, at the latest, immediately after he returned from India in 2013 if the events that he claimed happened at that time did actually happen. That the applicant did not apply for a Protection visa until 2015, a delay of seven years after first arriving in Australia and almost two years after the applicant claimed he was last arrested by the Indian authorities in 2013 indicates the claims made by the applicant are not genuine.
The Tribunal has considered all the claims made by the applicant both individually and cumulatively. The applicant has not claimed that he is a member of AISSF or that he has been involved in any movement for an independent Khalistan. He claims that he is only perceived as a supporter of AISSF by the Indian authorities and is a Sikh.
The Tribunal does not accept the claims made by the applicant that he is perceived as a supporter of AISSF by the Indian authorities or that they have arrested him and held him in detention at any time or that they have questioned him or threatened him for any reason. The Tribunal does not accept that the applicant’s wife in July 2019 was stopped when returning from Jammu and Kashmir and questioned about the applicant’s whereabouts or that the Indian authorities have had in the past or have any continuing interest as to the whereabouts or activities of the applicant.
The Tribunal does not accept that as the applicant identifies as a Sikh that he would face a real chance of persecution or real risk of any harm from the government or any organisation or any individual for this or any other reason.
The Tribunal finds that if the applicant were to return to India he would not face persecution for reasons of race, religion, nationality or membership of a particular social group or political opinion. The Tribunal finds that there is not a real risk that the applicant will suffer significant harm if he returns to India from any group or organisation or individual for any reason.
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 s.36(2)(a).
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).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hugh Sanderson
Member

ATTACHMENT – 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.
…
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.
…
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:   For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2019] AATA 4964

1 November 2019

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