1613474 (Refugee)

1613474 (Refugee) [2019] AATA 5952 (18 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613474
COUNTRY OF REFERENCE:                   India
MEMBER:Gabrielle Cullen
DATE:18 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 18 June 2019 at 3:51pm
CATCHWORDS
REFUGEE – protection visa – India – religion – follower of Dera Sacha Sauda – political opinion – Indian Congress Party – credibility issues – delay in departure – delay in applying for protection – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J, 36, 65, 424AA
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 on 5 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of India, claims to fear return as he is a follower of Dera Sacha Sauda and the Indian Congress party.
The applicant arrived in Australia on a student visa [in] September 2008, which was cancelled by the Department on 20 January 2011. The Department decision was affirmed by the Migration Review Tribunal on 28 November 2011 and his bridging visa ceased on 4 January 2012.[1] He resided in Australia without a visa until he applied for a protection visa, to which this decision relates, on 17 March 2016.
[1] As outlined in the Department decision attached to the Application for Review
On 2 May 2016 the applicant was informed in writing that his application may be decided without requesting further information from him. He was informed that if he wished to further discuss his claims he should contact the Department within seven days to arrange an interview. No contact was made by the applicant to the Department.[2]
[2] As outlined in the Department decision attached to the Application for Review
The applicant appeared before the Tribunal on 30 May 2019 to give evidence and present arguments and, where relevant, the evidence from those hearings appears in this decision. The applicant was assisted by an interpreter in the Punjabi and English languages. The applicant’s representative did not attend the hearing.
The issues to be considered in this case are as follows:
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to India and meet the refugee protection provisions of the Act?
·Does he meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the attachment to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicant’s protection visa application dated 17 March 2016, identity documents and claims outlined in the application.
·Oral evidence of the applicant provided at the Tribunal hearing held on 30 May 2019.
·Oral evidence of the applicant’s witness, [Mr A], provided at the Tribunal hearing held on 30 May 2019.
·Country information submitted prior to the Tribunal hearing as follows:
o   RRT Country Advice dated 8 December 2009 regarding clashes between Sikhs and the Dera Sacha Sauda in 2007.
o   Article from Rediff dated 17 May 2007 as to a person being killed and 22 injured by Sikhs in clashes between Dera Sacha Sauda and Sikhs. It notes the Sikh high priests called for a social boycott of the Dera Sacha Sauda after the group’s leader allegedly insulted Guru Gobind Singh.
o   Article from Rediff dated 17 July 2017 referring to 20 people being injured in a Haryana town in clashes between Sikh members and followers of Dera Sacha Sauda.
o   Article from The National dated 25 August 2017 noting that 28 are dead and 250 injured in Panchkula violence after the verdict against Ram Rahim, the head of Dera Sacha Sauda. It notes that his followers went on a rampage and set fire to vehicles after the court convicted Ram Rahim of a 2002 rape. The article notes the police responded by opening fire.
o   Article from The Tribune dated 8 November 2018 noting a follower of Dera Sacha Sauda was arrested in connection with a 2015 incident of sacrilege of the Guru Granth Sahib.
·Department of Foreign Affairs and Trade (DFAT), Country Information Report India, 17 October 2018.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
The applicant answered questions in his protection visa application received 17 March 2016 as follows:
89. Why did you leave that country?
I used to follow Dera Sacha Sauda Sirsa but I had born in Sikh family and also used to vote for Congress, as other followers used to.
Lots of followers had to face serious problems like life threat, attacks and loss of business because of their belief in Dera Sacha Sauda.
I was the only son of my family and I left India.
90. What do you think will happen if you return to that country?
My life will be in serious danger if I went back to India.
91. Did you experience harm in that country
No. I did not experience harm in that country but my friends and family did after I left India because of our religious and political belief.
92. Did you seek help within the country after the harm?
I was too young and had great fear about the safety of my life and had been taking treatment for my depression and anxiety in Australia. I have medical receipts to prove that.
93. Did you move or try to move to another part of that country to seek safety?
There is a big conflict between Sikhs and Dera Sacha followers and I had left the country before that. I did not want to go back to that situation
94. Do you think you will be harmed or mistreated if you return to that country?
Yes. There are lots of articles and news about violence happened between Dera followers and Sikh people on internet and newspapers. My parents are seriously concerned about my safety in India and strictly told me not to come back otherwise they can attack me and I do not want to be killed.
95. Do you think the authorities of that country will protect you if you go back?
No. Since they are Akali Dal party is ruling in Punjab since 2007 till date and this party is very strict about Sikh religion. Akali Dal party ruling since 2007 and they are very corrupt in political and judicial system.
96. Do you think you would be able to relocate within that country?
I will not be able to relocate in country as there are Sikhs in every state and they hate Dera Sacha Sauda followers and I don’t feel safe at all.
At the Tribunal hearing held on 30 May 2019 the applicant reiterated his claim to fear return as a follower of Dera Sacha Sauda (DSS). He also claims to fear return due to being a supporter of the Indian Congress party. He claims he will be killed and tortured by either the Sikhs, police or BJP supporters on return because he is a follower of DSS.
As to his involvement/following of DSS in India and Australia; he said both he and his parents are DSS followers and had been since 2005/6. He said they are the only followers in his area. When asked how he practised his adherence to DSS in India, he said he travelled with his parents to the DSS Haryana Sirsi every couple of months and was involved in social programs such as donating blood, cleaning the streets and other social programs. As to his how he practices in Australia, he said and confirmed that he watches YouTube videos of the leader, Ram Rahim. He said his parents continue to follow DSS in India; they continue to go to the Haryana Sirsi and are involved in the social programs. He said he also attends the Sikh temple in [an Australian city], although it is not a DSS temple. He was asked about what he believes in as a DSS follower and the core values and tenets of being a DSS follower. The Tribunal questioned why he was no longer involved in the DSS in Australia as he was in India, that is, why he was not involved more than watching YouTube videos in Australia. The Tribunal referred to the DSS Australia organisation and questioned why he was not involved with it and its social programs. The applicant said he was scared to do so and later said that involvement made him think of the difficulties he faced in India.
As to where he lived in India, he said he lived with his mother and father at his home up until he departed. He said he travelled from his home to the airport to come to Australia. He said his mother and father continue to live in the same family home. He said his father has a farm close to the village and continues to farm. He said he attended high school and then attended College [some time] before he departed. He said he completed 14 or 15 subjects of his course. He said he did not finish due to difficulties faced as a DSS supporter. He said they are the only DSS followers in their area.
As to the difficulties he and his family faced while he lived in India as DSS supporters, he referred to himself and his father being pulled from their home and beaten in 2007 by the Sikhs after the Sikh community was insulted by the DSS leader, Guru Gurmeet Ram Rahim supposedly imitating the tenth Sikh guru. He said 1,000 Sikh people went to the streets with sticks and swords and some came to their home and beat them. He said they were beaten and punched by five people but did not go to hospital. He said they were saved when his uncle came. He said his family then went to the police to complain but they did nothing and rather started questioning them. As to what happened next, he said about two months later, in 2007, he was on the streets and he was beaten by three people as he is a follower of DSS. He said he was punched in the stomach and slapped. As to whether anything else happened while he was in India, he said the police used to take both he and his father away to a private place to question and implicate them. He said the police took them away as the police were supporters of BJP and he and his father were supporters of the Congress, like many DSS followers. He said this happened about three to four times before he departed India in 2008.
He said after he was beaten the second time, as the police did nothing, but rather took them away for questioning and demanded money, he said he and his family realised it was time for him to depart. He said he departed India in fear as he thought he would be killed if he stayed due to his support and following of DSS. He said after he departed, his father continued to be taken by the police who asked for money. He said it was many times. He said in 2017, after their Guru was convicted and 30 DSS followers died by being shot by police in a peaceful protest, the police came to his father’s home and took him for two to three days to question him. As to what happened to his father, he said the police took the money/bribe and left him. He said his father has not faced any further difficulties since then but the risk still exists.
The Tribunal spoke by telephone to the witness, [Mr A], in India, who the applicant claims is his uncle and lives close to his family. When asked as to the difficulties faced by the applicant and his family as they are DSS supporters, he referred to police torture. He then said that in 2007 a big crowd of Sikhs came and beat the applicant and his parents. When asked how many beat them, he said there were about 100 to 150 people and they beat the applicant and his father. When asked how many actually beat them, he said all of them carried sticks and beat them. He said they then went to complain and the police came back to the applicant’s family home two days after and harassed and beat the applicant and his father, then took them away. He confirmed they were slapped and pushed by the police in front of the family home before being taken away by the police, two days after the first beating. When asked how he knew they were beaten by police he said he saw it. As to whether the applicant faced any other incidents, he said a big crowd came on a second occasion and beat the applicant again. He referred to the continued harassment of the applicant’s father and his father being taken away in 2017 and being kept in jail for four days. He said if the applicant returns he will be killed.
The Tribunal raised a number of concerns as to the credibility of the applicant’s claims. It questioned whether he or his family had faced the difficulties he claims. Where relevant these concerns have been outlined below. The Tribunal also raised a number of concerns with the witness’s evidence via the process outlined in s.424AA and questioned the reliability of the witness.
The Tribunal also raised with the applicant the independent information outlined below as to the treatment of DSS followers and followers of the Congress party, and questioned whether the applicant will face a real chance of serious harm and/or real risk of significant harm for being a DSS follower or supporter and a Congress follower and supporter. It raised with the applicant that this is particularly so, as on the evidence before the Tribunal, it appears that the applicant has never been committed to DSS to the extent of going on protests and being an activist, based on his activities in India and the way he has practised in Australia.
The Tribunal attempted to call the other witness, [Mr B], on the telephone number provided by the applicant; however, he did not answer the call. The Tribunal asked the applicant whether the applicant wished the Tribunal to continue to attempt to call him. In response he said that it was up to the Tribunal, and the Tribunal responded that it was up to the applicant whether he wanted the Tribunal to continue to attempt to call the witness. The applicant then said it was fine not to call him.
Is the applicant credible as to his claims?
Having sighted a copy of the applicant’s identity documents, and on the basis of his evidence at hearing, the Tribunal accepts that the applicant is a national of India for the purposes of s.36(2)(a) of the Act. For the purposes of s.36(2)(aa) the Tribunal accepts that India is the receiving country.
DSS supporter and follower
The Tribunal accepts that the applicant and his parents were and continue to be followers of DSS. It accepts that in India the applicant attended the DSS Haryana Sirsi monthly or every couple of months, and was involved in social programs with his parents such as donating blood and cleaning the streets. The Tribunal accepts the applicant’s parents continue to undertake these activities as followers of DSS. The Tribunal accepts that in Australia the applicant practises by watching YouTube videos of the current leader of DSS, Gurmeet Ram Rahim Singh. While the Tribunal accepts that were the applicant to return to India he will continue to be a follower of DSS, attending the sirsi in Haryana or elsewhere and being involved in social programs such as donating blood and cleaning the streets as he did previously, it does not accept that he will be an activist, and go out on the streets to protest or actively promote DSS. This is because he and his family have not done so in India and the applicant has not done so in Australia. The Tribunal expects if he was to return to India as an activist he would have done so in the past, which the evidence indicates he has not, and has not done so in Australia, where it is safe to. When asked why he was not been more actively involved in Australia when it is safe to do so, and as information indicates there is a DSS organisation in Australia[3], he responded initially that he was scared the same thing would happen to him as happened in India. He later said, when the concern was raised on a second occasion, that he was not further involved in Australia as he did not want to revisit mentally all the difficulties he had in India. The Tribunal does not accept his explanation as to his lack of active or further involvement in Australia, as the Tribunal rejects as true, for the reasons outlined below, that either the applicant or his family faced any difficulties on account of their DSS involvement and following in India. It follows it does not accept he was scared or had any mental issues regarding being further involved. The Tribunal is therefore of the view that his lack of involvement in activities promoting DSS in Australia and India indicates that were he to return to India he will not be involved in activism or protesting, but rather will continue to practise as he did in the past in India and in Australia, which is in the manner his family continues to practise.
Difficulties faced as a follower and supporter of DSS
[3] Dera Sacha Sauda Australia >
Notwithstanding the above, for the reasons that follow, the Tribunal does not accept that the applicant is a credible witness as to the difficulties he claims he and his family have faced in India as followers, supporters or believers in DSS, and that on the basis of the difficulties he faced in the past he fears return. It finds neither he nor his family faced any of the difficulties he claims at the hands of the Sikhs, Sikh organisations, police or members of the BJP, as they were and are DSS supporters. For the reasons outlined below, the Tribunal does not accept that the applicant or his family were ever of any interest to the Sikhs, Sikh organisations, police or authorities, including being harassed, beaten, punched, repeatedly taken to the police station, having to pay bribes or being harmed on account of their belief in DSS and support for the Congress party. It follows it does not accept the applicant left India in fear of harm or that he fears return as a result of any difficulties either he or his family faced in the past as DSS supporters or Congress party supporters.
Firstly, the applicant has provided internally inconsistent evidence as to the difficulties he faced in India. In his application for a protection visa at question 91, when asked “Did you experience harm in that country”, he ticked no and then indicated in the space below that he did not experience harm, although his friends and family did after he left India because of their religious and political beliefs. However, in contrast, at the Tribunal hearing he stated that twice in 2007 he was beaten by Sikhs in India because of his religious beliefs, once at his home and once on the streets. He gave details as to how, in 2007, he and his father were beaten after being dragged out of the house by five Sikh individuals. He later said he was beaten two months later by three individuals when on the street. He said he was punched, kicked and slapped. When the Tribunal raised its concern, he said the agent misunderstood. The Tribunal does not accept the applicant’s response as explaining the inconsistency, as the applicant signed the form, and his oral and written evidence contained in the protection visa application form is that he can speak, read and write English. When this was raised with the applicant, he responded that he did not see everything written. The Tribunal is of the view that as the applicant reads and writes English and signed the protection visa application form, he would have read the application before signing it. The Tribunal views the inconsistency as significant and is of the view that if the applicant was beaten twice in 2007 in the circumstances as he described at hearing for the reasons he claims, he would have referred to this in his protection visa application. This adds to the finding the applicant is not a credible witness as to the difficulties he claims that he and his father faced in India for the reasons he claims.

Secondly, the applicant claimed at the Tribunal hearing that when they went to complain to the police about the first beating in 2007, the police did not help but rather began to question them. He then claimed at a later time he was taken by the police with his father to a private place on three or four occasions prior to his departure. When asked what the police did, he said they questioned and implicated them and then asked for money. However, as raised with the applicant at the hearing, there is no reference to police harassment or intimidation or to them taking himself and his father away in his claims for protection outlined in his protection visa application. Rather, as outlined above, he said he was not harmed in India and when asked in his protection visa application to give details as to why he thinks the authorities could not or would not protect him, he did not refer to going to the police or them taking him away with his father on three or four occasion. When this was raised with the applicant, he gave the same reason as above, as to the agent misunderstanding. The Tribunal has already considered and rejected this explanation for the reasons outlined above. The Tribunal views the inconsistency as significant and is of the view that if the applicant and his father faced the difficulties he claims from the police, he would have referred to this in his protection visa application. This adds to the finding the applicant is not a credible witness as to the difficulties he claims he and his family faced in India.
Further, the Tribunal views the applicant’s claims to have faced the difficulties he alleges he had in India, and that he departed in fear and why he fears return, as inconsistent with his behaviour in continuing to remain in India for over a month after his student visa to enter Australia was granted. As raised with the applicant via the process outlined in s.424AA, the evidence indicates the student visa to enter Australia was granted on 7 August 2008 but he did not depart until [September] 2008. His evidence is he remained living at his home up until his time of departure. When this concern was raised with the applicant, he stated that he did not want to leave quickly as, because of the dangers, he did not know how long he would be away and he wanted to spend time with his parents. The Tribunal has difficulty accepting the response that he would spend over a month saying goodbye to his parents when he claims his life was in danger and he departed India in fear of harm. His delay in departure adds to the Tribunal’s finding that he did not face the difficulties he claims and was not in fear prior to his departure. It adds to the finding that he is not a credible witness as to the difficulties he claims he and his family faced in India as DSS supporters and Congress party supporters.
Further, the applicant’s behaviour in remaining living at his home where he had lived since birth with his parents until his departure [in] September 2008, and travelling from his home to the airport to depart, undermines his claim to fear harm based on the incidents and beating from the Sikhs in 2007, police intimidation and that he departed as he was in fear of being harmed. Also, his evidence that his parents, who continue to follow DSS, remain living in the same home and his father works the nearby farm undermines his claims that: his father faced and continues to face the difficulties he asserts; he departed India in fear; and he fears being harmed even killed because of his belief and following of DSS. When this was raised with the applicant, he asked what they could do if they moved. He said as his uncles were close by he felt secure, and if he moved elsewhere someone could come and kill them as they would be alone. The Tribunal does not accept this response and is of the view that if the applicant and his family faced the difficulties they claim and he departed in fear of being killed or harmed, and fears return on this basis, he would not remain living at his home up until the time of his departure. Further, it also questions the applicant’s claims his father was harmed after the applicant departed India and continued to be intimidated by the police, having to pay bribes, and the applicant’s claim he cannot return home as he will be killed as a DSS follower, when his parents continue to remain living at the family home and his father works his nearby farm. This undermines his claim to have departed in fear and to fear return for the reasons he claims. This adds to the finding he is not a credible witness as to the difficulties he claims he and his family had in India, and that he departed in fear of harm and fears being harmed on return.
Further, the Tribunal also views the applicant’s delay in applying for protection in Australia as inconsistent with his claim that he fears return and that he departed India in fear due to the difficulties he and his family have faced in India, including being beaten and repeatedly questioned by police as a result of being followers of DSS and Congress party supporters, and that he fears return for these reasons. As raised with the applicant, evidence from his passport, and as outlined in the Department decision,[4] indicates he arrived in Australia on a student visa [in] September 2008 and applied for a protection visa, to which this decision relates, on 17 March 2016, being a period of over seven years. It further raised with him that it is of concern that for over three years prior to applying for protection he did not hold a visa and was living unlawfully in Australia, as his student visa was cancelled by the Department on 20 January 2011, and the decision was affirmed by the Migration Review Tribunal on 28 November 2011, with his bridging visa ceasing on 4 January 2012.[5] The applicant’s evidence as to the reason for this delay was that when he came to Australia he thought he would finish his studies but he could not because of so much going on in his mind because of what happened to him in India. He said, as a result, he could not focus on his studies and he did not have any knowledge of the option to apply for protection. He said he was in such fear of returning and then a friend told him of the option of applying for protection. An applicant’s delay in applying for refugee status is a relevant consideration in the assessment of credibility of an applicant’s claims for refugee status. The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims refugee status, may be considered when assessing the genuineness, or at least the depth, of an applicant’s subjective fear of persecution. As was suggested to the applicant by the Tribunal at hearing, such a delay may lead the Tribunal to conclude that the applicant is not genuine in his fear of persecution or that he faced the difficulties he claims, in that if he genuinely feared persecution he would have applied sooner. In particular, the Tribunal raised with the applicant that if he fears return because he fled in fear and has a fear of harm as he had been beaten, it expects he would apply for asylum on his arrival or soon after, rather than over seven years after his initial arrival. The Tribunal added that this is particularly so as in the over three years prior to his application for a protection visa he was unlawfully in Australia without a visa. The Tribunal does not accept the reasons for his delay in applying for protection as it expects that if he truly feared persecution he would have applied sooner, even if holding a student visa for part of the time and especially when he was not the holder of any visa for three years and reads and writes English. It does not accept the reason that he did not apply is that he did not know until he was told by a friend. The Tribunal expects if he fears return for the reasons he claims and faced the difficulties he claims in India, including being beaten twice, he would have sought the information about applying for protection earlier, especially as he was living in Australia without a visa for a significant period of time and speaks English. It also does not accept he did not apply sooner because of so much going on in his mind because of what happened in India, as it does not accept that he or his family faced any of the difficulties he claims in India as followers of DSS. His delay, therefore, adds to the finding he is not credible as to his fear of return and as to the difficulties he claims he faced in India.
Credibility summary as to difficulties faced in India
[4] Attached to the Application for Review
[5] As outlined in the Department decision attached to the Application for Review
On the basis of the above cumulative credibility concerns, the Tribunal therefore does not accept that the applicant is a credible witness as to the difficulties he claims he and his family faced in India, that as a result he departed India in fear of harm in 2008 and fears being harmed, even killed on return as a DSS follower and Congress party follower and supporter.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s response to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
It has also considered his claim of depression and anxiety in his protection visa application, that his mind is altered because of the difficulties he faced and whether this has affected his ability to provide evidence consistently as to his claims. However, as there is no independent medical or other evidence before the Tribunal as to this affecting his ability to provide evidence consistently or his memory being impaired, the Tribunal does not accept that this factor explains or excuses the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making this finding the Tribunal accepts that some information has been consistent over time including that he fears return as a DSS follower and that his family faced harm after his departure from India. However, the Tribunal considers that these matters are relatively easy matters to recall and consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.
In making this finding, the Tribunal has considered the independent information submitted by the applicant as supporting the credibility of his claimed difficulties. However, the Tribunal considers that these articles do not outweigh the significant credibility aspects outlined above as to the claimed difficulties faced by the applicant and his father and do not lead the Tribunal to change its view that the applicant is not a credible witness.
In making this finding, the Tribunal has considered the oral evidence given by the applicant’s uncle, [Mr A], as to the difficulties faced by the applicant and his father in India on account of their support and belief in DSS. However, given the fundamental inconsistencies between the applicant’s evidence and his uncle as to the difficulties faced outlined below, the Tribunal given no weight to this evidence. Specifically, as raised with the applicant via s.424AA, these are as follows:
·When describing the first attack on the applicant and his father in 2007, the witness said and confirmed the applicant and his father were beaten by a big crowd of Sikhs, approximately 100 to 150 people, whereas the applicant said while there were over 1,000 Sikhs protesting on the street, he and his father were beaten by five people. When the witness was asked, he said all of those in the crowd beat them. In response, when the inconsistency was raised with the applicant he said there was a crowd and that it was 11 years ago. The Tribunal does not accept the applicant’s explanation and is of the view the applicant and his uncle would be consistent as to whether they were beaten by five people or over 100 people even if it was 11 years ago, due to the significance of the event.
·The witness said the applicant and his father were tortured by the police, and when asked to expand, he said two days after, they were beaten, slapped and pushed by the police. He said the police came to their house and beat them in front of everyone before taking them away. When asked how he knew this he said he saw it happen in front of the applicant’s home. When the Tribunal raised its concern that this evidence appears inconsistent with that of the applicant, as the applicant did not mention being beaten by the police outside his home two days after the initial attack, he responded that he had said when they went to complain the police caught them. The Tribunal does not accept this response as explaining the inconsistency concerning the police coming two days later and beating them. It is of the view if he was beaten by the police outside his home two days after the initial beating, he would have stated this at the hearing, which he did not, as the Tribunal repeatedly asked him to describe the difficulties he had faced in India.
·While the witness also said the applicant was beaten on a second occasion prior to his departure, the details as to the event were different to that stated by the applicant. The witness said the applicant was beaten on a second occasion when the crowd came and that it was a big crowd, whereas, as raised with the applicant via s.424AA, he said he was beaten the second time by three people on the streets. As to the reason for the inconsistency the applicant stated that his uncle did not understand the interpreter. However, when asked, the witness indicated he understood the interpreter. The Tribunal therefore does not accept that interpretation difficulties account for the inconsistency.
In making its finding, the Tribunal has considered that the applicant initially requested that the Tribunal contact his cousin [Mr B] to give evidence by telephone. The Tribunal attempted to contact the witness on a number of occasions but was unable to reach him. After the applicant’s uncle gave evidence the Tribunal asked the applicant whether the applicant wished the Tribunal to continue to attempt to call him. In response he said that it was up to the Tribunal, and the Tribunal responded that it was up to the applicant whether he wanted the Tribunal to continue to attempt again to call the witness. The applicant then said it was fine not to call him. As the applicant did not wish the Tribunal to continue to attempt to call the witness, the Tribunal did not attempt to do so or adjourn the matter or make any other steps to contact the witness.
As the Tribunal has found, on the basis of the cumulative evidence before it, that the applicant is not a witness of truth as to the difficulties he and his family, specifically his father, have faced in India it follows it does not accept either he or his father were ever beaten, pushed, slapped, punched, threatened, kicked, verbally or physically abused, prevented from practising their faith, prevented from earning a livelihood, prevented from finishing their education, intimidated, questioned, tortured, incarcerated, forced to pay bribes or faced any of the difficulties the applicant claims. In particular it does not accept that as they were supporters of DSS and/or the Congress party: either the applicant or his father were beaten in 2007 outside their home by a crowd or a group of five or any Sikhs on one or two occasions; the applicant and his family went to the police to complain but they did nothing, and rather began to question them; and the police later came and beat them outside their home or took them away. It follows it does not accept that on three or four occasions the applicant and his father were taken by the police and intimidated, questioned, harmed and had to pay a bribe to be released. It follows it does not accept that they were beaten by police at any time. It follows it does not accept that the applicant was beaten by Sikhs while travelling on the streets, that he was prevented from finishing college due to a fear of harm and that he departed India in fear.
It follows it does not accept that the applicant’s father faced any difficulties after the applicant’s departure from India including being taken by the police on numerous occasions, and having to pay bribes or that he was incarcerated, questioned or harmed for any time in 2017.
Therefore, based on the above, the Tribunal rejects the applicant’s claims as to the difficulties he and his family faced in India. It follows it does not accept the applicant departed India in fear as he feared further harm or due to an inability to practise his religion. It follows it does not accept that at the time he departed India or at any time since he has been of any interest to the authorities, police, Sikhs, Akali Dal followers, BJP followers or any Sikh terrorist organisations as he is a follower of DSS and of the Congress party. It follows it does not accept as true he fears return based on any past harm or faces mental difficulties because of what happened to him and his family in India.
Does the applicant have a well-founded fear of persecution in relation to India and meet the refugee protection provisions and does he meet the protection obligations under the complementary protection provisions of the Act?
On the basis of the above, the Tribunal has rejected that the applicant and his family faced any of the difficulties he claims for the reasons he claims, which led the applicant to depart India in fear of harm. The Tribunal has found he was of no interest to the police, Sikhs, Sikh organisations, BJP members, Akali Dal or anyone else on account of being followers of DSS and their DSS practice, or as he was perceived to be in political opposition to the government as a supporter of the Congress party and as a DSS follower. It therefore follows it does not accept he will face harassment, harm, death, threats, verbal or physical abuse or any difficulties as a result of incidents based on what he claims happened to him and his family in the past in India.
Notwithstanding, as the Tribunal accepts the applicant will return to India as a DSS follower, the question for the Tribunal is whether he will face a real chance of serious harm and/or real risk of significant harm. In making this assessment the Tribunal accepts the applicant was known in the past as a DSS follower and would be known as a DSS follower were he to return and that his parents are DSS followers, but for the reasons outlined above does not accept he would return as an activist, organising meetings, promoting the DSS and going on the streets to protest. The Tribunal accepts on return to India he will continue to watch YouTube videos relating to DSS at home, attend the DSS Haryana Sirsi regularly and he will engage in social programs such as donating blood and cleaning the streets as will his parents.
Independent information indicates that DSS is a spiritual and social movement founded in 1948 by Shehenshahji Mastana, a Sikh from Balochistan. The current leader of DSS is Gurmeet Ram Rahim Singh. While Singh has stated that the DSS movement is based on a “combination of all religions”, referred to by DSS followers as insaan, many Sikhs view DSS as a breakaway faction of Sikhism.[6] The Economist reports that the DSS has grown from a single dera into a mass movement, with “some 400,000 followers”, drawing adherents from low caste members of the Sikh community, as well as Hindus.[7] BBC News states that the majority of DSS followers are Dalits (Untouchables/low-caste Hindus); however it has also attracted “Sikh, Muslim and Christian adherents”.[8] The DSS itself claims to have over 40 million followers worldwide.[9]
[6] Alig, A. & Anwar, A. 2007, ‘Embers of a Sikh fire’, Himal South Asian, October <
[7] ‘Dangerous tensions in Punjab’ 2007, The Economist, 5 July < cfm?story_id=9444533
[8] ‘PM urges calm over Sikh protests’ 2007, BBC News, 18 May < Dera Sacha Sauda website 2010, About Us <

Independent information indicates violence affecting DSS activists/groups occurred in 2007 when DSS Guru Gurmeet Ram Rahim Singh appeared to imitate the revered tenth Sikh Guru, Guru Gobind Singh. Writing in The Hindustan, Gobind Thukral states that the guru’s “farcical manner” should have “provoked some wry humour”. However, the Sikh ruling elite saw a political opportunity to diminish the growing political power of the DSS guru and the dera.[10]
[10] Thukral, G 2007, ‘Keep the faith’, The Hindustan Times, 18 June <>
No sources were located indicating that people have been harmed while visiting dera property or for utilising services provided by DSS since 2007. While anti-DSS rhetoric continues to be enunciated by some religious and political groups, notably the Akali Takht and Sant Samaj, acts of violence or harassment against DSS activists are no longer common.[11] The Tribunal notes that the Department has reported that ordinary followers of DSS are not targeted for harm by the dera’s opponents.
[11] Issues Paper India Sikhsm, Caste and Deras; Department of Immigration and Border Protection reviewed March 2014 [3.1.4]
Country information prepared by the Department in 2014 reports that as a consequence of the DSS being courted by major political parties since the 2007 anti-DSS violence, police in Punjab have provided a high degree of protection to DSS meetings and the DSS leadership. DSS leaders are provided the highest category state protection.[12]
[12] Sood, A 2013, ‘Congress objects to maximum security for SAD leaders’, The Tribune, 25 March < ‘Day-to-day hearing in rape case against Dera chief from today’ 2011, Daily Baskar, 29 September <>
Country information confirms that the DSS operates freely throughout India. Information indicates that the DSS has expanded its presence and services beyond the Sikh heartland of Punjab and Haryana, building ashrams and providing services in a number of states and cities across India.[13] Information indicates that as a consequence of its popularity among Punjab’s dalits and other scheduled castes, DSS Guru Gurmeet Ram Rahim Singh was routinely courted by leaders of the major political parties in Punjab, namely the Shiromani Akali Dal – Badal (SAD Badal), Indian National Congress (INC), and the Bharatiya Janata Party (BJP).[14]
[13]Dera Sacha Sauda website n.d., Dera Sacha Sauda Ashrams Across India < Accessed 28 July 2011
[14] Garg, B 2012, ‘Political leaders court Dera on poll eve’, The Tribune, 29 January <>
Further country information indicates that orthodox Sikh groups opposed to the DSS have complained that the Badal government and the Punjab police are biased in favour of the dera. A January 2011 article in Panthic.org, a Sikh online newspaper, quoted Shiromani Akali Dal (Amritsar) president Simranjit Singh Mann as arguing that the “Punjab government was encouraging various deras and cults like the Dera Sauda Sirsa (DSS) cult to weaken the Sikh community”. Panthic.org supports statements made by Mann, stating that “[i]t is clear that the Punjab Government, run by Akali Dal Badal, has again, come up openly in support of DSS cult, as the Punjab police yesterday arrested Sikh preacher Baba Baljeet Singh Daduwal and prevented him from addressing a Gurmat Samagam at Bhikhi town of Mansa district”.[15]
[15] Panthic.org 2011, Curfew against mansa Sikhs as Badel Government continues to promote DSS cult, 3 January <>
The Tribunal notes that since the above advice was prepared by the Department in 2014 there have been recent violent clashes in India surrounding the conviction of Gurmeet Ram Rahim Singh on rape charges in August 2017[16]. The Tribunal notes that the applicant has referred to these clashes in support of his claims. Reuters reported in August 2017 that after Gurmeet Ram Rahim Singh was sentenced, hundreds of his followers ‘went on the rampage…, attacking train stations, buses and television vans’.[17] Tens of thousands of police were deployed to enforce a lockdown in large parts of Haryana and Punjab, where Singh had ‘a mass following’. An August 2017 BBC News report indicates that at least 30 people were killed during the protests after Gurmeet Ram Rahim Singh was convicted. The information indicates that DSS supporters were the instigators and not the victims of that violence.[18] The Tribunal finds that much of the violence was perpetrated by DSS supporters responding, by going on a rampage and destroying property, to the conviction and sentencing. The Tribunal notes that in October 2017 the Haryana state assembly made a point of paying homage to the DSS followers killed in the violence. It is reported that sympathetic representatives in the assembly came from a wide range of political parties, noting that DSS had been an important vote bank for the parties for at least a decade.[19]
[16] High security in Haryana, Punjab ahead of verdict in scribe murder case; Ram Rahim is an accused’, Hindustan Times, 10 January 2019, 20190328170642
[17] ‘Indian court jails self-styled “godman” for 20 years, security tight’, Reuters, 28 August 2017, CXC90406612960
[18] Violent protests in India turn deadly after Guru’s rape conviction. The New York Times, 25 August 2017
[19] Rao H, ‘After Rahim’s arrest, Dera Sacha Sauda dies a slow death’, Hindustan Times, 11 November 2017
Further, in October 2018, a special investigation team of the Punjab police “arrested three Dera Sacha Sauda followers” in relation to a sacrilege case. The case arose after torn pages of the Sikh holy book, the Guru Granth Sahib, ‘were found scattered on the streets of Malke village in Moga district’ in November 2015, ‘triggering state-wide tension’.[20]
[20] ‘SIT arrests 3 dera followers in Moga sacrilege case’, Jassowal, G, Hindustan Times, 30 October 2018, 20190329163946
25 ‘Sacrilege: No bail
Country information further notes that in January 2019, Gurmeet Ram Rahim Singh, the leader of the DSS sect, was sentenced to life imprisonment in relation to the 2002 murder of a journalist who exposed sexual abuse of women at his sect. Three of his aides were also sentenced to life imprisonment for the murder of the journalist.[21]
[21] ‘Ram Rahim, 3 aides get life in scribe killing’, The Asian Age, 18 January 2019, 20190329182847
Prior to the verdict, security was increased in Haryana and parts of Punjab, with additional police deployed near the DSS headquarters in Sirsa in Haryana. Another report indicates that a day after the verdict, Gurmeet Ram Rahim Singh’s dera ‘was allegedly attacked and a car set ablaze’. The ‘police denied that any attack or arson had taken place’.[22]
[22] ‘Ram Rahim’s dera “attacked”, cops say no’, Bhatia, I, The Times of India, 19 January 2019, 20190401140851
A March 2019 article in the Deccan Herald indicates that although Gurmeet Ram Rahim Singh was in jail, politicians in Punjab and Haryana were wary of how people still owing allegiance to the DSS might vote.[23]
[23] ‘Ram Rahim in Jail, politicians wary of Dera voter’, Dheer, G, Deccan Herald, 22 March 2019, 20190329155405
In March 2018, The Hindu reported that educational institutions at the DSS headquarters had reopened in September 2017, although the number of students had decreased. The hospital had been affected, with many doctors leaving and the number of patients reduced. The earnings of businesses in the Dera were meagre, and the number of people who visited on weekdays and Sundays respectively, had ‘reduced to a couple of hundreds and thousands’.[24]
[24] Ram Rahim’s “vision”, presence still looms large over Dera’, Bhandari, H, The Hindu, 19 March 2018, 20190401105025
On the basis of the above information and what is accepted of the applicant’s circumstances, the Tribunal does not accept that the applicant will: be killed, kidnapped, threatened, harassed, harmed, beaten, picked up by police, have to pay bribes, be intimidated, have his property damaged, be prevented from following DSS, be prevented from attending DSS gatherings, be unable to earn a livelihood or obtain an education or, due to any fear of harm, not practise DSS in the way he has in the past. In making this finding, the Tribunal notes that it has found that as the applicant and his family have not been activists and involved in protests in the past, they will not be in the future.
On the basis of the above information and what is accepted of the applicant’s circumstances, the Tribunal does not accept that the difficulties the applicant will face as a result of being a DSS follower and engaged in DSS activities amounts to serious harm outlined in s.5J(5) or meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act.
The Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if he returns to India in the reasonably foreseeable future on account of his religion as a DSS follower, believer, supporter and being involved in DSS activities. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in s.36(2A) as a result of his religious belief as a DSS follower, believer, supporter and being involved in DSS activities.
In making this finding, the Tribunal has also considered the claim that not everything is reported in India. The Tribunal has difficulty accepting this as true considering the widespread reporting of the violence against DSS followers in 2007.
Indian Congress Party
The applicant claims to fear return as he is a supporter of the Congress Party. However, as raised with him, the independent information leads the Tribunal to find he will not face a real chance of serious harm or risk of significant harm due to any association and continued support of the Congress Party at the hands of Akali Dal, the BJP, the police, Sikhs or anyone else.
Information indicates that the Congress Party is one of the main parties of India and it won state assembly elections held in early 2017 in the Punjab, the state from where the applicant is from.[25] Information indicates it secured a landslide victory being 77 out of 117 seats.[26] The DFAT Country Information Report for India dated 17 October 2018 indicates that India is a federal constitutional democracy and that for much of the post-independence era Indian politics has been dominated by the Indian National Congress party, but that the BJP had been able to form government with its political partners after the 2014 general election. Information indicates the BJP and its leader Narrandera Modi again claimed victory in the May 2019 elections. The information from DFAT indicates that India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. It notes that there are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics and that political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’. [27]
[25] ‘Congress landslide in Punjab or back to the future?', Institute of Asia and Pacific Studies, 21 March 2017, CISEDB50AD3650 89
[26] Gurharpal Singh, Congress landslide in Punjab or back to the future, Institute of Asia and Pacific Studies (IAPS), 21 March 2017, gives results of the Punjab Legislative Assembly elections held in February 2017
[27] Department of Foreign Affairs and Trade (DFAT), Country Information Report India, 17 October 2018
DFAT assesses that leaders and members of opposition political parties do not face official or societal discrimination. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, elections in India are peacefully conducted.[28]
[28] Department of Foreign Affairs and Trade (DFAT), Country Information Report India, 17 October 2018
In its earlier report from 2015, DFAT[29] noted the security situation in India can vary significantly over time and from place to place. However, the overall Department assessment is that notwithstanding the number of incidents referred to in the report, in absolute terms, because of the sheer size and diversity of India, most Indians live their lives with a relatively low risk of violence.
[29] Department of Foreign Affairs and Trade (DFAT), Country Information Report India, 15 July 2015
On the basis of what is accepted of the applicant’s claims as to difficulties faced on account of his and his father’s support of the Indian Congress party in the past, which the Tribunal has not accepted as true, and the independent information outlined above, the Tribunal does not accept that the difficulties the applicant will face as a result of being a follower of the Indian Congress party amount to serious harm outlined in s.5J(5) or meet the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act.
The Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if he returns to India in the reasonably foreseeable future for the reason of his political belief and following. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in s.36(2A) for reason of his political belief and following.
CONCLUSIONS
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) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
Member

ATTACHMENT A – CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA (see Attachment B).
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) (see Attachment B).
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Attachment B - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 5952

18 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review