1615313 (Refugee)

1615313 (Refugee) [2020] AATA 976 (24 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615313
COUNTRY OF REFERENCE:                   India
MEMBER:Denise Connolly
DATE:24 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 March 2020 at 9:12am

CATCHWORDS
REFUGEE – protection visa – India – religion – member of religious/social organisation – attacks and threats by Sikhs – ongoing harassment of family – credibility – inconsistent evidence – minimal religious practice in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 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 2 September 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 11 March 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Evidence to the Department
When making the visa application the applicant provided the following information. He was born on [date] in Jalandhar, Punjab, India. He is a citizen of India. He does not have the right to reside in any another country. He provided a copy of his Indian passport issued [in] 2009 obtained through normal procedures. He speaks, reads and writes in Hindi and Punjabi. His religion is Hinduism. He married his wife [in] September 2001. They have two children, born [on dates]. His wife and children currently reside in Jalandhar along with his mother [and siblings]. He applied for a visitor visa on 22 January 2016 which was granted on 1 February 2016. He arrived in Australia as the holder of the visitor visa [in] March 2016. Prior to travelling to Australia he was self-employed in India.
The applicant has previously travelled to [Country 1], [Country 2] and [Country 3] as a visitor.
The applicant claims that because he has followed Dera Sacha Sauda (DSS) he will be killed or seriously injured if he returns to India. In the past his car was stoned, and he was bashed and harassed by Sikhs opposed to his religious beliefs. The police would not register his complaint. He cannot relocate because he will be tracked and killed.
The applicant claims he is a business man and travels frequently for business. In July 2014 he got a work order from [a client] for [a job task] in [Town]. He went to [Town] and while there supervising the work, he met his friend [who[ lives in Sirsa. His friend is a disciple of Baba Ram Rahim of the DSS sect. His friend encouraged him to attend Baba Ram Rahim’s dera (religious place of worship) and the applicant agreed. He found the atmosphere calm and peaceful. The people treated Baba like God. The applicant was still a bit skeptical but went home, and watched DVDs about Baba Ji. He became curious and attended the dera and read literature about Baba Ji. He was impressed and became a changed man. His visits to the dera were more frequent and sometimes he used to spend the night there serving other visitors.
The applicant claims he started small congregations in his house every weekend. The people who attended these weekly congregations were pleased with changes they felt in their lives. He started organizing his area’s Baba Ji followers’ visits to the dera every two months. Some Sikh youth objected to his activities but it was nothing serious. They were more of a nuisance. However in 2015, some miscreants desecrated Guru Granth Sahib (Holy book of Sikhs) and this sent the Punjab into turmoil. Although Baba Ji denied any involvement in the desecration, Sikhs blamed Baba Ji and his followers and deras were attacked. These incidents were the catalyst for a group of Sikh youth who objected to the applicant holding Baba Ji’s congregations in his home. They cornered him and threatened to kill him if he continued to hold congregations. However he did not take them seriously until they stoned his car. However he was not injured on this occasion. He did not go to the police as he did not want to escalate the problem. Sikh youth took it as their victory and started harassing him. He then started receiving threatening phone calls. One night he was walking back to his home when a group of young men attacked him from behind. He sustained injuries. His family wanted him to lodge a police complaint but the police told him to shut down his activities as it created disharmony. The Punjab Police force is dominated by Sikhs who are against Baba Ji. This emboldened his attackers and he received death threats.
The applicant claims that his wife and parents told him to give up following Baba Ji. However he did not want to give it up as this was against his fundamental rights. His wife wanted him to go in to hiding or to go start living in the dera at Sirsa. However he did not want to live the life of a fugitive. He decided to leave India so that he can follow his religious beliefs and live without fear.
Evidence provided to the Tribunal
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records he was sent a letter explaining that if he wished to have an interview, he should contact the Department within 7 days. However, no approach for an interview was made by the applicant.
The delegate’s decision includes DFAT’s country information[1] about DSS, a social welfare and spiritual organisation which reportedly has:
40 to 50 million followers worldwide (including in Australia. The DSS cites its key principles as: secularism; equality; anti-materialism; truth and faith; meditation; strict individual discipline; strict social discipline; and hard work. The organisation has undertaken a number of environmental and cleanliness campaigns throughout India, and has also been active in supporting disaster relief. However, the DSS sparked controversy in February 2015 when reports emerged that 400 members of the group had self-castrated since 2000 after being told by the group’s leader, Gurmeet Ram Rahim Singh, that doing so would enable them to meet God directly.
[1] DFAT Country Information Report India July 2015, Department of Foreign Affairs and Trade, 15 July 2015
Prior to the hearing the applicant’s representative wrote to the Tribunal and asked that the hearing be postponed because the representative had an exam the following day. The Tribunal considered this but did not agree to postpone the hearing. However it agreed to provide the applicant and the representative with time after the hearing to allow the representative to listen to the recording and provide any submissions he wished to make.
The Tribunal asked the applicant about the preparation of his visa application. He indicated his representative wrote the claims in English for him using the applicant’s spoken claims. He told his representative the truth.
At the hearing the applicant told the Tribunal that his wife and children continue to live in their home at Jalandhar. His wife does not work. Both of his children are currently studying. The Tribunal asked how the family is surviving. He indicated that his mother gets a pension and his brother runs a business. He also sends about $500-$700 a month back to his wife in India. He works in Australia as [an Occupation]. He used his savings to pay his migration agent $[Amount] for assistance in making the application.
The Tribunal noted that the address he gave in the visa application is for a police station. He acknowledged that this was correct. He said his migration agent had asked him for the nearby police station, which was about 1 to 1½ km from his home, to include in the address. He lives in a three storey house with his extended family. On the ground floor is his mother’s room, and the drawing room. He, his wife and children all live in one room on the next floor. His brother’s family live upstairs in two other rooms.
The applicant worked [in] India before coming to Australia. His brother still has the business. The Tribunal asked if he employed people. He indicated that the work was on contract so the number of employees depended on the labour required to meet particular contracts. He indicated it was his brother’s business and he worked for his brother supervising [workers]. The Tribunal asked if the business was successful. He indicated that previously his father had run the business and it had been good but there were political issues. He said the business was okay before he came to Australia. The Tribunal asked about his work patterns. He indicated that it depended on the contract. If it was a long way away he would leave home at 5 AM. Sometimes he worked 9 AM till 5 PM. Often he stayed away from home, living on site. He worked six days a week and spent Sundays with his family.
The applicant indicated that his reasons for going overseas to [Country 1] and [Country 3] were to do with work. He claimed that the [company] gave them holidays as part of the contract. He went by himself, with other people from the [company]. His brother did not go. In 2012 he went to [Country 2] with his wife for 12 days on a holiday.
The Tribunal asked the applicant about his current religious practice. He indicated that he prays to his God. It asked if he does anything else to practice his religion. He indicated that God says all religions are the same so he just prays. The Tribunal asked about his other religious practice in India. He indicated he practised at the dera in Sirsa.
The Tribunal ask the applicant if he had any contact with any DSS organisations in Australia. He indicated that there are DSS people in Perth. It asked if he had considered going to Perth to practice with them given his claim he left India to practice his religion. He indicated he is just happy to sit at home and pray to God. He indicated there might be DSS people in Victoria or Sydney; he has never tried to find out. He is not involved in DSS.
The Tribunal asked the applicant about any recent events affecting Baba Ji and his followers. He indicated on 28 February there was a program about Sirsa.
The Tribunal asked the applicant about the last time he suffered harm in India before he came to Australia. He indicated it was in January in 2016 when a group of young Sikhs stopped him and attacked him from behind because he was following the guru. He claimed to have a doctor’s report in India recording his injuries. The Tribunal asked why he did not bring that medical evidence with him to Australia. He indicated he was not aware it would be required. He indicated that he would now be able to get a doctor’s report from India. The Tribunal explained that it may form the view that, if he had documentation about any injury suffered in India, because of his involvement in DSS, he would have brought that information with him. It explained that it may be concerned about the reliability of any medical evidence he now provides, given the time that has passed since the alleged incident.
The Tribunal asked the applicant about when he first became aware of DSS. He indicated he had a contract in July 2014 and he became aware of DSS. The Tribunal asked about his first practice as a DSS follower. He indicated he started preaching in his home. The Tribunal questioned whether his first practice would have been as a preacher. He indicated he attended gatherings, learned and read about DSS. The Tribunal asked where he did this. He indicated it was in Sirsa. The Tribunal asked how far Sirsa was from where he lived. He indicated it was about 220 km from his home. The Tribunal asked how often he went to Sirsa. He indicated he went two or three times in two months. The Tribunal asked how he was able to do this given his description of his work commitments. He indicated that he went on Sundays. The Tribunal noted that he had said he spent Sundays with his family. He indicated he was still following his God. The Tribunal asked about his religion. He indicated that he is a Hindu.
The Tribunal asked the applicant about his claims to have been a preacher. He indicated that he would get a few people and tell them about the goodness. It asked where he did this. He indicated it was in the drawing room of his home. The Tribunal questioned how many people attended the gathering. He indicated it was three, or maybe five. The Tribunal asked how often he did this. He indicated he did it when he was able.
The Tribunal raised its concern that the applicant’s description of his DSS practice does not suggest he was particularly active or involved. The applicant indicated he was going a lot. The Tribunal asked the applicant if he had any other evidence to give about his DSS practice. He said the reason there were only a few people was because he was living in a Sikh community. He talked about the goodness of donating eyes, organs and blood.
The Tribunal asked the applicant why he cannot return to India. He said that recently his family and children have been harassed. The Tribunal questioned why this would happen given he has not been in India for four years. It explained that it may not accept he is currently of any interest to anyone in India. He indicated that his guru is now in jail and so they are threatening and harassing his family and saying “look what happened to the guru”.
The applicant indicated he wants his wife and children to join him here. He referred to medical reports he brought to the hearing about his wife’s [Medical condition 1] and his mother’s [Medical condition 2]. Also recently his mother had an accident and broke her hip and arm. The Tribunal asked why he brought their medical evidence but not the contemporaneous medical evidence in relation to his claims to have been injured in India. The applicant indicated they have recently had problems so they sent the medical evidence to him.
The Tribunal asked the applicant what else happened to him in India to make him fearful of returning. He indicated that when he was coming from work they threw stones at his car. The Tribunal asked if there was anything else that happened to make him fearful. He indicated there is no police report about the incident so they felt they had won. They went quiet and then in October when the Sikh holy book was burned they blamed his guru. Because of that he had problems.
The Tribunal noted that the applicant’s oral evidence was not as detailed as his written claims. For example, he had not mentioned that he received phone threats. He indicated he had not had time to make the claim.
The Tribunal asked the applicant why he did not ask for an interview with the delegate. The applicant indicated his representative did not tell him about the invitation. He confirmed that he still has the same representative.
The Tribunal explained to the applicant that the country information referred to in the delegate’s decision record, about DSS. It noted it indicates that while there was some tension between Sikhs and DSS followers the information did not indicate that he will be seriously harmed if he returns to India. The applicant indicated that if something happens to him his wife and children will have difficulties.
The Tribunal explained that it may not accept the applicant has an adverse profile in India. He indicated they know that, if he goes home, he will preach. The Tribunal explained that it may not accept he will preach, given his current religious practice. It also explained that it may not accept he ever preached in India. It noted that he had claimed that he wanted to leave India so he could follow his religious beliefs and live without fear. However it also noted that since he has been in Australia he has not been practising DSS. He indicated that while he knows there are DSS people here he has not told anybody he is a DSS follower because he is secretly hiding here.
The Tribunal asked the applicant if he had any other evidence to give about his claims. He confirmed that he had no other evidence.
The Tribunal explained that it had agreed to give the representative time to listen to the hearing recording. The applicant indicated he wanted more time to obtain medical evidence about injuries he suffered in India. The Tribunal explained that if the applicant now provides medical evidence it may have concerns about the veracity of the evidence, given it relates to alleged injuries said to have occurred over four years ago. It noted that the applicant has had four years and the assistance of a migration agent to collate his evidence relating to his claims. The applicant stated that if he stays here he will be safe but if he returns to India he does not know what will happen.
After the hearing the applicant’s representative wrote to the Tribunal seeking an adjournment of two weeks in order for the applicant to obtain further information. The representative stated that after listening to the hearing recording the applicant has indicated he wishes to obtain evidence of his injuries and that he was not aware that this evidence would strengthen his case. He claimed that the applicant provided his wife’s and mother’s health records to show the severity of the threat to his life in India. He has been keeping a low profile in Australia because he does not want his opponents to know that he is actively involved in DSS activities in Australia as this might aggravate them and compromise the safety of his wife and children.
The representative also claimed that, if staying in a developed country on the basis of an unfounded visa application was his only aim, he could have done that when he visited [Country 2] with his wife.
With respect to the issue raised at the hearing about the veracity/authenticity of documents obtained from India, the representative submitted that the applicant is a deeply religious man who would only provide genuine documents. He requested that the applicant be given further time to provide evidence of injuries and other claims.
The Tribunal agreed to wait until 17 March 2020 for the applicant to provide further evidence.
On 16 March 2020 the applicant provided affidavits from [the] applicant’s wife, [his] brother, [a] family friend, and [a] neighbour.
The applicant’s wife attested that the applicant was attacked three times by people of the Sikh community due to his affiliation with and devotion to DSS. She claimed that he started helping underprivileged people in his vicinity and held small congregations. She repeated the claims made in the written application about the attack in January 2016 and the warnings and harassment that followed. She claimed that her husband’s brother took the applicant to the doctor. She repeated the applicant’s written claims, that she wanted her husband to live in the dera but he wanted to live a life where he would be free to follow his religious beliefs. She repeated the written claims that her husband went to the police station to lodge a complaint but the police refused to file the complaint. She claimed that those in the Sikh community are still trying to find her husband and her family is being threatened by Sikh youth who have threatened that if he returns to India they will kill him.
The other witnesses’ affidavits are essentially the same as that of his wife, in parts identically worded.
The applicant provided an undated letter from [a doctor], [Name] [Hospital], stating that the applicant presented at the hospital [in] January 2016 in an unconscious condition with multiple injuries, swellings and bruises. He was admitted to hospital and prescribed IV fluids, antibiotics and painkillers. It records however that he was discharged on the same day, [in] January 2016.

The applicant also provided a medical record from the same hospital dated [in] January 2016 recording his blood pressure and pulse, and prescribed medications.
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 ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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
Nationality
The Tribunal finds that the applicant is a citizen of India, based on his Indian passport and his oral evidence, and will assess his claims on this basis. The Tribunal finds that he is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.
Does the applicant have a well-founded fear of persecution?
The applicant has essentially claimed in the visa application that he became involved with DSS and organised for Baba Ji’s followers to meet in his home every weekend where he preached to small congregations. He has claimed that initially he was harassed by Sikh youth who objected. This escalated to his car being stoned after Baba Ji was blamed for the desecration of the Sikh Holy Book. He has claimed he received threatening phone calls and then one night in January 2016 he was attacked from behind and sustained injuries. He has claimed that his family wanted him to give up following Baba Ji but he did not want to do this. He decided to leave India so that he could follow his religious beliefs and live in safety.
At the hearing the applicant also claimed that recently his family and children have been harassed.
After the hearing the representative claimed that the applicant has been keeping a low profile in Australia because he does not want his opponents to know that he is actively involved in DSS activities in Australia as this might aggravate them and compromise the safety of his wife and children. He indicated that while the applicant knows there are DSS people here he has not told anybody he is a DSS follower because he is secretly hiding here.
The representative also claimed that, if staying in a developed country on the basis of an unfounded visa application was his only aim, the applicant could have done that when he visited [Country 2] with his wife.
With respect to the issue raised at the hearing about the veracity/authenticity of documents obtained from India, the representative submitted that the applicant is a deeply religious man who would only provide genuine documents.
For the following reasons the Tribunal is not persuaded that the applicant’s claims are reliable.
First the Tribunal finds the applicant’s evidence regarding his DSS practice in Australia to be unpersuasive. He has claimed that, rather than give up following Baba Ji, as sought by his wife, he decided to leave India so that he could follow his religious beliefs. The Tribunal is of the view however that his description of his practice in Australia is not indicative of a person who is so committed to their religious faith that they choose to leave their country and family. When asked how he practices here he essentially indicated that he prays. He admitted to the Tribunal that he has not attempted to locate fellow DSS followers in Australia. He indicated he is just happy to sit at home and pray to God. He admitted he is not involved in DSS in Australia. He admitted that he has never tried to find other DSS followers here. The Tribunal is of the view that his practice is not indicative of someone who is so committed to their religion that they leave the country and family to follow it.
The Tribunal notes that since the hearing the applicant’s representative has had an opportunity to listen to the recording and he has now claimed that the applicant has been keeping a low profile in Australia as he does not want his opponents to know that he is actively involved in DSS activities in Australia. The applicant did not make this claim himself. The Tribunal does not accept that the applicant is actively involved in DSS activities in Australia. Nor does it accept that the applicant knows there are DSS people here but he has not told anybody he is a DSS follower because he is secretly hiding here. It is of the view that if the applicant was genuinely actively involved in DSS activities in Australia he would have been able to provide detailed oral evidence about those activities. The Tribunal is of the view the applicant’s scant oral evidence about his DSS activities in Australia strongly indicates that he is not actively following DSS in Australia. On his own evidence he only prays to God. He did not give evidence indicating he participates in other aspects of the faith as described in the country information he provided to the Tribunal set out in the delegate’s decision record.
Secondly the Tribunal finds the applicant’s oral description of his DSS activities in India to be unpersuasive, limited compared to the detail provided in the written visa application, and not reflective of someone committed to DSS practice. It notes when he was given an opportunity to describe his practice as a preacher he merely indicated that he would get a few people in his drawing room to tell them about the goodness, and eye, organ and blood donation. The Tribunal question how many people attended the gathering. He was vague about how many people attended indicating it was three, or maybe five. When asked how often he did this, he indicated he did it when he was able, compared to his written claims that he did it every weekend. However the Tribunal notes the applicant had already described a busy working life, at times working six days a week and away from home, and spending Sundays with his family. It is also unpersuaded that the applicant would start preaching so soon after his own exposure to DSS beliefs. Nor is it satisfied that the preaching he described would attract the adverse attention of those in the Sikh community opposed to DSS. It has taken into account that there were only a few people present for his preaching because he lived in a Sikh community. However the Tribunal is not persuaded the applicant was a DSS preacher. It finds that he has manufactured this claim for the purpose of his visa application.
Thirdly, the Tribunal notes he did not repeat his claim in his oral evidence that he paid visits to the dera where he sometimes spent the night serving other visitors, as he claimed in the visa application. Nor did he repeat the claim to have organized his area’s Baba Ji followers’ visits to the dera every two months. It also notes his wife claimed as part of his practice he started helping underprivileged people in his vicinity, however the applicant did not make that claim at the hearing when asked about his practice in India. The Tribunal is of the view these omissions are significant and cast doubt on the reliability of the claims.
Fourthly, the Tribunal is of the view the applicant’s evidence, regarding injuries he alleges he suffered, has been embellished or manufactured. In his written visa application, which he admits was prepared with the assistance of his current representative, a registered migration agent, he indicated he sustained some injuries. He did not state that he needed to go to hospital. He did not state in his oral evidence at the hearing that he was taken to the hospital in an unconscious state. However he has now provided to the Tribunal, after the hearing, an undated letter from [a] Hospital claiming that he presented in an unconscious condition with multiple injuries and required IV fluids and antibiotics. The Tribunal raised with the applicant at the hearing that it may have concerns about medical evidence first provided four years after the alleged events. The explanation given for the applicant not providing the evidence earlier was that he was not aware that this evidence would strengthen his case. The Tribunal notes however that the applicant has had the same migration agent assisting him with this case since the visa application was made. The Tribunal is not persuaded by his reasons for not presenting this evidence earlier. It is not satisfied he presented to the hospital in an unconscious condition. It is of the view that if that was the case the applicant would have made that claim in his visa application or in his oral evidence at the hearing. It has formed the view the written medical evidence provided is either embellished or fabricated. It is not satisfied it supports his claims that he was beaten by Sikhs because he was a DSS follower.
The Tribunal has taken into account the four affidavits provided after the hearing. It notes however that they are essentially the same, in many parts identical, with the same typographical errors. The Tribunal is concerned about the reliability of four affidavits which are essentially the same. It also notes that those affidavits were prepared after the applicant and the representative listened to the hearing recording. For these reasons it gives very little weight to the affidavits.
The Tribunal has considered the representative’s claim that the applicant provided the evidence of his wife’s and mother’s health records to show the severity of the threat to his life in India. The Tribunal is not satisfied the applicant has decided to remain in Australia because there is a threat to his life in India. It has taken into account the four affidavits but finds it significantly concerning that they are virtually the same, and also given they were prepared after the applicant had an opportunity to listen to the hearing recording. Having considered all of his claims and evidence it is not satisfied the applicant had a profile as a DSS follower in India. Nor is it satisfied that he was attacked for that reason. It does not accept that the applicant has an adverse profile in India or that anyone is interested in harming him if he returns to India. It does not accept his or his witnesses’ claims that members of the Sikh community have threatened to kill him if he returns to India. It takes into account the representative’s assertion that the applicant is a deeply religious man but it is not persuaded that this is the case. It finds that he has manufactured his claims for the purpose of achieving his preferred migration outcome.
The Tribunal has considered the representative’s claim that if staying in a developed country on the basis of an unfounded visa application was the applicant’s only aim, he could have done that when he visited [Country 2] with his wife. The Tribunal notes however that the holiday was taken in 2012, 4 years before the applicant decided to come to Australia and apply for protection. It is not persuaded that the applicant’s return to India after a holiday in [Country 2] in 2012 overcomes the problems with the applicant’s evidence.
Having considered all of the applicant’s evidence, the Tribunal is not satisfied the applicant was a DSS follower in India. It does not accept that his car was stoned and that he was bashed and harassed by Sikhs opposed to his religious practice. It does not accept that he was a DSS preacher. Nor does it accept that he was attacked in January 2016 by young men motivated by his involvement in DSS. It finds his claim that he chose to leave India so that he can follow his religious beliefs and live here in safety to be manufactured. It does not accept his family are being harassed, because of his past association with DSS, or that enquiries are being made about him now. It finds that he has manufactured all of these claims.
Having considered the applicant’s description of his religious practice in Australia, he prays to his God, the Tribunal is not satisfied the applicant will practice his religion in India in a way that would draw the adverse attention of Sikhs or anyone else. It is not satisfied he will attract the adverse attention of Sikhs or the authorities if he returns to India. It is not satisfied he will preach if he returns to India because it is not satisfied he preached before he came to Australia and, in its view, his religious practice is not indicative of a person so committed to their religion that they are compelled to share it with others.
Overall, on the evidence before it, the Tribunal is not satisfied that the applicant believes he will be persecuted if he returns to India. It is not satisfied he has been threatened or harmed in the past. It is not satisfied the applicant fears returning to India. It is not satisfied the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, or that there is a real chance he would be persecuted for one or more of those reasons. It is not satisfied therefore that the applicant meets the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criteria?
The Tribunal must also consider whether the applicant meets the criteria for complementary protection. A person meets the criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
For reasons given above, the Tribunal is not satisfied there is a real risk any of the kinds of significant harm set out in s.5(1). The Tribunal has found that the applicant did not have an adverse profile in India as described in his claims. It has not accepted his claims regarding any intention to preach if he returns to India. It is not satisfied he will participate in any activity that will draw adverse attention to him. It is satisfied he has family and a home to return to in India. He indicated his father’s business was affected by political issues but it notes he has employment experience and his brother runs a [business], in which he worked until he came to Australia. It is satisfied he will be able to secure employment in India such that he will be able to subsist. The Tribunal is not satisfied that there is any evidence to suggest that in the reasonably foreseeable future the applicant will be harmed if he returns to India.
Having considered the evidence overall, the Tribunal is not satisfied therefore 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 of significant harm. He therefore does not meet the complementary protection provisions. 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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denise Connolly
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.
…
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.
…
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.
…

[2020] AATA 976

24 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction