1619170 (Refugee)

[2018] AATA 1742

1619170 (Refugee) [2018] AATA 1742 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619170

COUNTRY OF REFERENCE:                  India

MEMBER:Gabrielle Cullen

DATE:9 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 09 April 2018 at 11:39am

CATCHWORDS
Refugee – Protection Visa – India – Federal Magistrate’s Court remittal – Complementary protection – SZGIZ affected application – Religion – Imputed political opinion– Adherents of Dera Sacha Sauda – Previous adverse interactions with opposing political groups – Country information does not support a risk of significant harm – Difficulty in repatriating to home country – Difficulties not amounting to significant harm

LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(aa), (c), (2A), (2B), 48A, 65, 424AA, 499

CASES
SZGIZ v MIAC [2013] FCAFC 71

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who are citizens of India applied for the visas on 12 December 2013. The first named applicant (the applicant) claims to fear harm as a result of being a follower of Dera Sacha Sauda and referred to difficulties he faced prior to his departure at the hands of members of the Shromoni Akila Dal (SAD). He claims he has serious concerns as to his own safety and the safety of his son who suffers medical conditions.

3. The second and third named applicants, being the wife and son of the applicant, submitted Part D forms being applications for members of the family unit who do not have their own claims for protection. However, at hearing they made claims in their own right as to fearing return as followers of Dera Sacha Sauda and as family members of the applicant who had been threatened. The third named applicant also claims to fear return due to the youth drug abuse in India.

4. As outlined in the Department decision[1]  and in evidence to the Tribunal the applicants arrived in Australia on 7 May 2008 and applied for protection visas on 19 June 2008, which were refused by the Department on 16 September 2008. The Tribunal on 18 March 2009 affirmed the decision of the Department. As it was determined this matter was SZGIZ affected the applicants were permitted to make further applications, which this matter pertains to. The applicants then applied for protection visas on 12 December 2013.

   [1] The Department decision was attached to the Application for Review

5. On 13 March 2015 the first named applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.

6. The delegate refused to grant the visas on 17 April 2015 on the basis that the applicant’s claims are not well-founded and his evidence was not credible as to being a follower of the Guru, Gurmeet Ram Rahim Singh and the difficulties he claims he faced in the past.

7. The Tribunal (differently constituted) found the Tribunal did not have jurisdiction in this matter on 27 October 2015 on the basis that the applicants were out of time in seeking review of the delegate’s decision.

8. [In] October 2016 the Federal Magistrate’s Court ordered that this matter be reconsidered on the basis that a lawful application was made.

9. The applicants appeared before the Tribunal on 26 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

10. While the applicants were initially questioned separately as to their claims, concerns in their evidence were raised both individually and together. The applicants agreed to concerns being raised together.

11. The issues to be considered in this case are as follows.

    ·Are the applicants’ credible as to their claims?

    ·Do they meet the protection obligations under the complementary protection provisions of the Migration Act?

    RELEVANT LAW

    The Effect of SZGIZ and its relevance to this review

12. Relevantly, in SZGIZ v MIAC [2013] FCAFC 71, 3 July 2013 (`SZGIZ’), the Full Federal Court confined the effect of s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. For example, the Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a protection visa only on the basis of one of the criterion in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion. However, the Court’s reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application. The central concern for the purpose of establishing the s.48A bar, and the extent of the Tribunal’s powers on review, appears to be the criterion against which the applicant has previously been assessed. 

13. As was raised with the applicants at hearing, the information before the Tribunal indicates that the applicants’ initial application was refused by the Department on 16 September 2008. The visa application under review is a valid application because the applicants are considered `SZGIZ-affected’ as they have not left Australia since final determination of their previous protection application, which preceded complementary protection laws. Pursuant to SZGIZ, the applicants have standing to make the application under review to afford hearing of their complementary protection claims. As the applicants have previously had their claims for protection assessed under s.36(2)(a), on the terms of SZGIZ, the Tribunal must confine its consideration to whether they satisfy the requirements of ss.36(2)(aa) and (c).

14. The Tribunal has proceeded (as indicated at the hearing) to consider the applicants’ claims in relation to the complementary protection requirements of s. 36(2)(aa).

    Complementary protection criterion

15. 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 a protection 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 the applicant 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’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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

19. The Tribunal has before it the Department’s file relating to the applicants. 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 applicants’ protection visa applications of 12 December 2013, claims outlined in the protection visa application of the first named applicant and identity documents. Also considered were claims outlined in the 2008 application referred to in the Department decision dated 17 April 2015[2].

    [2] At the Tribunal hearing held on 26 March 2018 the first named applicant confirmed that he wished to include in his current application claims made in the 2008 application.

    ·Oral evidence of the applicant provided at the Department interview held on 13 March 2015 and applicants at the Tribunal hearing held on 26 March 2018.

    ·Report from [Hospital 1] indicating the applicant was brought there [in] December 2007 at 7.00 pm as an emergency patient. It notes he had multiple blunt injuries with bruising almost all over his body. It notes he was beaten by some people as alleged by the applicant. It notes he remained in hospital for two [days].

    ·Medical documents from 2010 and 2012 noting the third named applicant suffers regular migraine headaches. It notes these migraine headaches are precipitated as he is anxious as to the family situation in Australia and how he will cope with his studies once sent back to India. He was prescribed anti-migraine medication. Medical reports from 2010 also note he has [particular developmental issues] and behavioural intervention was recommended. There were also reports from his treating clinical psychologist who saw him on a number of occasions in 2011 as to worry management and tolerating migraines caused by worry about his and the family visa status.

    ·Documents from the third named applicant’s Australian school in 2010/11 showing absenteeism.

    ·School letter from 2011 indicating the third named applicant is a gifted student and fully supporting his continued study.

    ·Submission from the third named applicant received 21 March 2018.

    ·Independent information submitted by the third named applicant as to a drug and alcohol abuse epidemic existing in Punjab and India, as well as a culture of violence and societal difficulties. The articles also refer to the high rate of unemployment in India among youth.

    ·Newspaper articles as to the violence which occurred after the conviction of Gurmeet Ram Rahim of rape in August 2017.

    ·Untranslated Newspaper article from 2014, death Certificate of [Mr A] and photographs supposedly of this man with the applicant. The submission with these documents made by the third named applicant received on 26 March 2018  notes that the person was a colleague of the applicant when he was involved in religious gathering at Sat Sang – which he claims is a religious gathering for Baba Ram Rahim, among other leaders. He notes the article indicates that his death was [suspicious].

    ·Article titled “Akali Leader Bikram Singh Majithia under Fresh Scrutiny for alleged Role in Punjab Drug Racket” The Wire, dated 25 March 2018.

    ·Post hearing submission received 6 April 2018.

    ·DFAT DFAT Country Report India 15 July 2015.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

20. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    The Applicants’ Claims

    Claims made in the December 2013 application

21. The first named applicant (applicant) claims in his protection visa application that he left India as he was harassed by Shromoni Akali Dal party members (SAD) on account of his belonging to Baba Gurmeet Ram Rahim Singh Ji Insan (Insan) or Dera Sacha Sauda. He refers to the history of the matter and notes that the previous Tribunal (differently constituted) accepted that he had been affected and harmed in the past on account of his support for Dera Sacha Sauda and that additional harm could be expected if he returned to India. He notes the previous Tribunal made a decision that he could relocate in India to avoid the harm feared. He claims he cannot relocate as he will not be in a position to establish a business elsewhere. He claims he has serious concerns as to his own safety and also as to the safety of his son who suffers serious medical conditions and he submitted the reports of the consultant Paediatrician from 2010 to 2012 that the care and attention needed by his son cannot be obtained in India. He claims he will suffer future harm in India as he suffered it in the past. He claims he cannot relocate due to his religion and political opinion as the harm is still there.

    Claims made in the 2008 application

22. The Department in its decision dated 17 April 2015 referred to the original claims made by the applicant which the applicant also refers to himself in his application in 2013. At the Tribunal hearing held on 26 March 2018 he also confirmed he wished to rely on the claims made in his application in 2008. These can be summarised as follows.

    ·He is a disciple of Gurmeet Ram Rahim Singh and was a permanent worker of the Dera Sacha Sauda. He also supports the Congress party.

    ·He was harassed by members of the Shromoni Akali Dal (SAD).

    ·He regularly organised religious discussions or gatherings from 2004 at his house where attendees would discuss the philosophy of their Baba. Initially [a number of] persons attended. He noted the main teachings of their Dera is to raise their self-character, lead a simple life, avoid taking any type of drugs, liquor or smoking and lead a vegetarian life. He notes the Dera preaches them to work hard and believe in universal brotherhood. He notes they oppose the dowry system.

    ·He claims he also used to three to four times a year visit Sirsa which is the headquarters to listen to the discourse of the Baba at these meetings.

    ·Total membership of his group grew from [a small number of] families to a total of [a large number of] families.

    ·He also used to celebrate at a big function and [a politician], [Mr B] used to take part and address the participants.

    ·In November 2006 he was contacted by [a particular individual] who is the main organiser of the local Gurudwara and advised that their Baba is not of good character, a liar and he should not follow him. He advised the applicant to stop his false propaganda otherwise there would be a problem. The applicant said he laughed and was told he would face the consequences.

    ·He claims he went on following his program and did not change and he told everything to the group.

    ·Members of the Akali Dal (SAD) party in Punjab approached the applicant in January 2007 and threatened him for creating false propaganda against their party. He named [particular individuals] as being in this group. He replied that he is a supporter of the Congress party and he put a Congress Party flag outside his house and openly supported the candidate, [Mr B].

    ·[A senior official] of the [Akali Dal] threatened the applicant over the phone and he told the applicant he would be in trouble if he came to power.

    ·During the election members of the Akali Dal demanded he give money to their party. He refused to pay and was again threatened.

    ·In the election his candidate won the local seat but the Akali Dal came to power as they won more seats.

    ·After the AKali Dal won the elections they became very aggressive and some formed a group who demanded money from shopkeepers like the applicant, who owned his own [shop]. He claims they came to his shop in March 2007 and he was asked for the papers of his shop and he was threatened to show them. He claims they [caused damage] and threatened that they will close his shop. He was accused of selling illegal goods. He claims he heard them say he was a follower of Gurmeet Ram Rahim Singh and he sells him drugs.

    ·He went to the police but they did not write a report or visit him.

    ·An anonymous caller threatened to burn down the shop if he did not close it. The caller said their group was anti-Sikh and the Baba was a liar. He claims the caller said he will not tolerate anything against Sikhism. He was warned to stop his false propaganda. He claims he did not take these threats seriously but kept on working.

    ·In May 2007 he claims he was holding a normal gathering at his house when a group of [Akali Dal] party workers entered the applicant’s house and denounced Baba Gurmeet Ram Rahim Singh. He claims his members became angry and an argument started. The SAD members damaged the applicant’s [belongings]. He claims he told everyone to leave and they cancelled the next gathering.

    ·The applicant reported the incident to the police but the police accused him of holding an illegal gathering as there were [a large number of] people.

    ·After two days he claims he met with [a politician], [Mr B] and he said he would talk to [a senior member of the] police.

    ·He claims he stopped holding gatherings at his place and started meeting at different places in small groups.

    ·In December 2007 he claims he was coming back from attending a meeting at [a particular location], a meeting organised by [a particular individual]. He claims when he reached [a particular location] he was attacked by [assailants] and they attacked him with [a weapon]. He claims he fell down and they beat him with various types of arms. He claim he heard one of them saying kill him as he is preaching against their Gurus.

    ·He woke up at [Hospital 1] the next day and was told he had been picked up in a [vehicle]. He was advised by his family members not to lodge a police report as they would only act against him.

    ·However, [some time later] he exported the matter to police. The police threatened him and did not act on it.

    ·He claims he could not open his shop for two weeks

    ·He reopened his shop and received three or four threatening letters, including threats to kidnap his son. He claims he became very scared.

    ·He claims he moved with his family to his in-laws house in [City 1].

    ·He claims if he returns he will be killed because of his political and religious thinking.

    Additional claims made in written submissions and at the Department interview (2015) and Tribunal hearing (2018)

23. At the Department interview held on 13 March 2015 the applicant reiterated his claim to fear return on account of the difficulties he faced in the past and being a member of Dera Sacha Sauda. He added at the interview that after he went to live with his in-laws at [City 1] the family relocated to [another city] before coming to Australia.

1. On 21 March 2018 the third named applicant submitted in writing that he fears return as in India the youth are full of drugs and there is no future. He claims India and its culture are alien to him as a [young person] who grew up in Australia since 2008. He submitted documents as to youth problems in India, including the high level of drug and alcohol addiction, particularly in the Punjab, as well as the high levels of youth unemployment. The articles also referred to the high level of violence and specifically societal difficulties.

2. Also submitted were articles as regards to violence after the Dera Sacha Sauda Guru, Gumeet Ram Rahim was convicted of rape on 25 August 2017. The news articles indicate the property loss and damage to the various states, including the Punjab where violence occurred. The articles refer to 30 people being killed in Haryana and 250 injured when followers of the head of Dera Sacha Sauda (DSS) went on a frenzied rampage and committed arson after he was convicted in August 2017. They note his followers unleased violence and set fire to a large number of vehicles, buildings and railways stations. In response the police and para military used force including firing and lobbing tear gas to control the situation. Curfew was imposed. Information was also submitted as to the torching of a bus in New Delhi by DSS followers following the verdict.

3. Also resubmitted were the medical reports from 2010 to 2012 pertaining to the third named applicant’s suffering from migraine headaches as a result of stress and anxiety due to visa processing issues encountered by his family.

4. At the Tribunal hearing held on 26 March 2018, all three applicants choose to give evidence. The third named applicant referred to additional claims made as referred to above. While the second named applicant initially indicated she was relying on the claims made by her husband, she indicated she wished to give evidence and her evidence indicates that she also claims to fear of return as she claims to be a follower of Dera Sacha Sauda and faced difficulties on account of her husband’s profile.

5. The first named applicant repeated his claims to fear return due to the difficulties he faced as a Dera Sacha Sauda follower in India and as he was involved in organising gatherings and holding meetings for Dera Sacha Sauda members. He also claimed to fear return due to being a member of the Indian Congress party. He claims to fear return from SAD. He said when he was in India they threatened him and threatened to kidnap and harm his son.

6. As to his involvement/following of Dera Sacha Sauda in Australia; he said they continue to make prayers. He said they pray alone at home and when living in [a particular Australian city] they sometimes went to the temple and in [another Australian city] go to the temple in [a particular Australian suburb]. However, he then said the temple is a Sikh temple and not a DSS temple. He said all of the applicants are DSS followers. He confirmed they do not have gatherings just pray together at home. When asked about the DSS community in Australia he said he had not seen anyone. When asked if he had met them at the temple he said it is a Sikh temple not a DSS temple. He confirmed he expresses his following of DSS in Australia by praying at home and confirmed that he does not engage in any other activities. He said in India they held gatherings of [a large number of] people and had a community centre. He was asked why he is not involved more than praying at home and the DSS organisation in Australia was referred to. He was asked about what he believes in as a DSS follower and the core values and tenets of being a DSS follower. Concerns were raised as to his answers. The Tribunal questioned why he was no longer involved in the same way as in India. It raised with him that it appeared he was no longer involved in DSS in the same way he was India, in organising gatherings and promoting DSS. The Tribunal asked why, and the applicant said he was scared to do so. He later clarified that he was not scared in Australia to express his religion. As to the harm he will face on return he referred to the newspaper article submitted on the date of the hearing. He said the man referred to in the article was his [his relative, Mr A] and he was his right hand man in the DSS in India. He said he died in suspicious circumstances. The Tribunal questioned why he had not raised this previously at the Department hearing in 2015 and he responded that it was never talked about; rather they discussed the missing letters. It asked whether in the article, as it was untranslated, it refers to this man being a DSS follower or being harmed because of being a follower; he responded in the negative. The Tribunal raised a number of concerns as to his evidence and where relevant these and the responses have been outlined below.

7. The second named applicant also claimed to be a follower of DSS. She said she was relying on the claims of her husband. She said they threatened her husband that they would harm him and his family. She outlined what she believes in as a DSS follower. As to how she expresses being a follower in Australia; she referred to talking at home. When asked if this is the only why she expresses her religion in Australia; she said they have not seen or heard of any other DSS followers so they just practice at home. She also referred to the death of her [relative] as outlined in the news article. She noted that he also used to preach with her husband. The second named applicant claimed her mother told her not to return to India in 2015 when her father died due to her life being under threat as a result of their support of Dera Sacha Sauda.

8. The third named applicant also indicated that he is a follower of DSS. He outlined what he believes in and said he meditates and talks about it at home. He also referred to going to the hall with his mother. When questioned later in the hearing as to their lack of involvement in the DSS in Australia and the Tribunal referred to the organisation being involved in planting trees, he said they had planted many trees when living in [a certain state in Australia]. As to what he fears will happen to him on return he referred to harm to DSS followers and the newspaper article he submitted on the day of the hearing. He also referred to the epidemic of drug abuse among the youth in India and that he is concerned if he goes back. He said he does not want to be a product of that environment. He said he has grown up in Australia, studied here and all his family are here. He said he wants to study and that all his friends who he went to school with in Australia have studied and are almost finished but he cannot go to University as he has to pay the fees. He referred to the recent riots after the verdict against the Baba. The Tribunal asked him about his current health problems and he said he had no further reports since 2012 and has not seen a Doctor since then. The Tribunal raised with him its concern that it appears that he would not meet the complementary protection criteria on account of the youth and societal difficulties in India and referred to s.36(2B) being that they appear to be difficulties faced by the population as a whole and not the applicant personally. It questioned on the evidence before it whether he faces any continuing health difficulties which would reach the level of him facing a real risk of significant harm. It noted the medical facilities in India were of a good standard.

9. The applicants agreed to the Tribunal raising its concerns to all of the applicants and gave them an opportunity to individually comment. Via the process outlined in s.424AA it raised concerns as to the 2014 newspaper article and whether the man referred to was connected with the DSS and questioned whether he was killed due to his involvement in the DSS. It raised with the applicants why if he was killed due to his association with DSS and he was connected with the applicant as claimed why the applicant did not mention it at the Department interview in 2015. It noted this was particularly so as his claims were discussed at that interview and he was asked if he had anything to add. It questioned the applicants’ credibility as to their claims in this regard.

10. The Tribunal raised with the applicants the independent information outlined below as to the treatment of DSS followers and questioned whether they would face a real risk of significant harm for being DSS followers. It raised with the applicants that this may be particularly so as it questioned whether the applicant would continue to be involved in the way he had in the past prior to coming to Australia, as he had not done so in Australia when there was no threat of harm. It also raised with the applicant information as to whether he would face a real risk of significant harm as a member of the Congress party. Where relevant these concerns have been outlined in detail below and responses considered.

11. In the post hearing submission the applicants added the following:

    ·When the applicant started his religious activities, there were three main organisers including himself. He claims he flew to Australia for survival but the other two met, one which was his [relative (Mr A)] met with an early death which was declared an accident by the local police and politicians. He claims [Mr A] was beaten badly by a gang of Akali members but the local police announced it as a [vehicle] accident but there was no damage to the [vehicle].

    ·He refers to the safety of his son’s future and the heavy drug use and mafia in Haryana and the Punjab. He claims his son; the third named applicant can hardly speak Punjabi and cannot read or write it. He notes his whole studies have been in Australia and he questions how he will survive in alien conditions. He notes he has no knowledge of Indian business. He refers to his past mental traumas and claims he will not be sure what to do in Indian life, with people beating each other, swearing and shouting in streets and people shooting a person if they don’t follow their religion. He notes all his friends are in Australia. He refers to the difficulties he will face as a followers of Guru Ram Rahim and then this will throw him into depression and anxiety again.

    ·As to his wife he refers to the trauma she has experienced as a result of the death threats against him and having to flee India as a result. He notes she has not attended the funeral of her father and [another relative] due to their safety concerns.

    ·He claims they manufactured the criminal case against Baba Ram Rahim. He notes the Baba preaches a simple, drug free life and makes many messages to help the poor but that this has not gone well with the drug mafia and criminal families and that is why he is behind bars. He claims there was hundreds of millions of property damage and a lot of his followers are being beaten and killed.

    ·He claims he still believes in the Baba but cannot afford for his safety to go out in Australian society to promote him and DSS. He claims if he goes to India he cannot keep his photo and be involved.

    Do the applicants meet the protection obligations under the complementary protection provisions of the Migration Act?

    Dera Sacha Sauda

12. The Tribunal accepts that the applicants have been, are and will be followers of Dera Sacha Sauda were they to return to India. The Tribunal accepts that the applicants have been affected by the incidents of intimidation and harm prior to their departure from India in 2008, as claimed in their initial protection visa application (2008). The Tribunal accepts that the first named applicant undertook the activities claimed, organising gatherings and promoting Dera Sacha Sauda and faced the threats and difficulties claimed prior to his departure from India. It accepts that the applicant was well known in their local area at the time of their departure in 2008 for his support of and activities for Dera Sacha Sauda.

13. The Tribunal accepts the first named applicant’s evidence that since his arrival in Australia, he has confined his activities by praying and following the teachings of Dera Sacha Sauda at home with his family. His evidence is that he has not undertaken activities outside the home. While the Tribunal accepts that were he to return to India he will continue to be a follower of Dera Sacha Sauda, it does not accept, for the reasons that follow, that he will return to being an activist or to promoting Dera Sacha Sauda in the manner he did prior to his departure in 2008.

    ·Firstly, he has not done so in Australia. When raised with him he said he did not know any other followers of DSS in Australia. However as raised with him information indicates there is an organisation in Australia and specifically one in [a state in Australia] where they previously lived[3]. The Tribunal is of the view his activities or lack of in promoting DSS in Australia over the last ten years indicates that were he to return to India he will not return to such activities, rather continue to practise as he has in Australia. This is particularly so as he indicates he did not feel threated or intimidated practising his following of DSS in Australia.[4]

    In making this finding the Tribunal has considered that at the hearing he initially said it was because of a fear of harm and because he was scared that he had not been involved in promoting DSS. It notes he also repeated this in his post-hearing submission. However at the hearing he later said and confirmed this was not the case in Australia and he was not scared to practise his religion and had not been involved in activities outside the home due to a fear. The Tribunal is of the view if he was not being open in practising his religion due to a fear he would have been consistent as to this claim throughout the process. It therefore does not accept he has only practised at home in Australia for the last ten years due to any fear or being scared.

    ·Secondly, his evidence was lacking in specific detail as to what he believes in as a follower of DSS despite claiming he had been a follower since the birth of his [son]. When asked he said there is a picture of the Baba and he imagines him in his heart. When asked again he said the Baba practices many things such as looking after girls, taking in orphans, adopting girls and giving blood. When asked as to the core values and tenets of DSS he referred to his own personal experience of reaching out to the Baba around the time of the birth of his son. He later said that the Baba reaches out to drug addicts. As raised with him this appears to be lacking in detail when compared with his evidence in his 2008 statement as to the teachings of Baba[5] and to the independent information as to the teachings of DSS[6].

    [3] [Source deleted].

    [4] While at the hearing the Tribunal believed he initially said he did not practise outside of the home in Australia due to a fear, he later clarified and confirmed that he did not fear practising DSS in Australia. The latter which the Tribunal accepts as true.

    [5] As outlined above

    [6] >

    Having accepted that the applicants will return to India as DSS followers, having found the first named applicant will not return to organising gatherings and promoting DSS as he did in the past the question for the Tribunal is whether they will face a real risk of significant harm. In making this assessment the Tribunal accepts the applicant was known in the past as a DSS follower and organiser of gathering and would be known as a DSS follower were he to return but does not accept he would continue to organise gatherings and other programs for the DSS. It accepts he will pray at home and hang the photo of the Baba and that it will be publicly known he and the other applicants are DSS followers.

14. Independent information indicates that Dera Sacha Sauda (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.[7] 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.[8] 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”.[9] The DSS itself claims to have over forty million followers worldwide.[10]

    [7] Alig, A. & Anwar, A. 2007, ‘Embers of a Sikh fire’, Himal South Asian, October <

    [8] ‘Dangerous tensions in Punjab’ 2007, The Economist, 5 July < cfm?story_id=9444533

    [9] ‘PM urges calm over Sikh protests’ 2007, BBC News, 18 May < Dera Sacha Sauda website 2010, About Us <

15. 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.[11]

    [11] 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.[12] The Tribunal notes that the Department has reported that ordinary followers of DSS are not targeted for harm by the dera’s opponents.

    [12] Issues Paper India Sikhsm, Caste and Deras; Department of Immigration and Border Protection reviewed March 2014 [3.1.4]

16. Country information prepared by the Department 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.[13]

    [13] 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.[14] Information indicates that as a consequence of its popularity among Punjab’s dalits and other scheduled castes, DSS Guru Gurmeet Ram Rahim Singh is 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).[15]

    [14]Dera Sacha Sauda website n.d., Dera Sacha Sauda Ashrams Across India < Accessed 28 July 2011

    [15] Garg, B 2012, ‘Political leaders court Dera on poll eve’, The Tribune, 29 January < type="1">

17. Further country information indicates that orthodox Sikh groups opposed to DSS complain 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”.[16]

    [16] 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 there have been recent violent clashes in India surrounding the conviction of Gurmeet Ram Rahim Singh on rape charges in August 2017. The Tribunal notes that the applicants have referred to these clashes in support of their claims. The Tribunal finds however 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 information indicates that DSS supporters were the instigators and not the victims of that violence The Tribunal also notes that recent reports confirm that Prime Minister Narendra Modi has offered support to the guru in the past and thanked the DSS for their contribution to the country.[17] Further, 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.[18] 

    [17] Violent protests in India turn deadly after Guru’s rape conviction. The New York Times, 25 August 2017

    [18] Rao H, ‘After Rahim’s arrest, Dera Sacha Sauda dies a slow death’, Hindustan Times, 11 November 2017

18. The Tribunal notes the applicants have provided no further independent country information to the Tribunal that would indicate that DSS supporters are being targeted by the Indian authorities or any other group or person since the conviction and jailing of Gurmeet Ram Rahim Singh in August 2017, rather only articles as to the police and government response to the rampage of DSS followers after the rape conviction.

19. On the basis of the above information and what is accepted of the applicants’ circumstances the Tribunal does not accept that the applicants will be killed, kidnapped, threatened, shot at, harassed, harmed, beaten, have their property damaged, suffer trauma from the applicant being threatened, will fall into depression and anxiety due to the threats of harm, be prevented from following DSS, be prevented from attending DSS gatherings, be prevented from hanging the photo of their Guru or Baba or due to any fear of harm not practise DSS in any way they wish. On the basis of the above information and what is accepted of the applicants’ circumstances the Tribunal does not accept that the difficulties the applicants will face as a result of being DSS followers and engaged in DSS activities meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Migration Act. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm as defined in subsection 36(2A) as a  result of their religious belief.

20. In making this finding the Tribunal has considered the applicants submissions and responses when the independent information was raised with them. In particular it has considered information submitted as to the suspicious death of a man, [Mr A], in 2014 whom they claim was [related to the second named applicant], who was a disciple of DSS and the first named applicant’s right hand man who assisted him in organising DSS gatherings in India. They claim that his death was as a result of his association with the DSS and that this is evidence of what they will encounter on return. The Tribunal, however, as raised with the applicants, does not place weight on this evidence as to the continued difficulties faced by DSS followers and activists. In particular, for the reasons outlined below and as raised with the applicants it does not accept the applicants are credible witnesses that [Mr A] suffered harm and death as a result of his DSS involvement. Firstly, while the article was untranslated the first and third named applicants indicated there was no information in the article that [Mr A]’s death was associated with him being involved with the DSS which the Tribunal may expect if true. Secondly, as raised with the applicants via s.424AA despite the applicant being interview by the Department in 2015 as to his claims of harm the applicant did not refer to the death of his [relative] in 2014 due to his involvement in DSS or that he was his right hand man. The Tribunal is of the view if this was the case the applicant would have mentioned it at the Department interview in 2015, especially as he was asked if he had anything further to add. The Tribunal does not accept as true that the applicants only heard about it in 2017 as they have no contact with their family or anyone in India when the second named applicant indicated that in 2015 she spoke to her mother after the death of her father. Further, prior to this in the hearing when the same concern was raised with the applicant he did not respond that he only found out about it in 2017 rather he said that the delegate did not ask and they discussed the missing letters. The Tribunal therefore does not find the applicants credible as to their claim that [Mr A] was killed or faced harm due to his involvement in DSS or as he was the applicant’s right hand man in organising gatherings for the DSS.

21. In making this finding the Tribunal has also considered the claim, made for the first time in the post –hearing submission, that another leader who worked with the applicant in the DSS prior to his departure has also been killed in suspicious, similar to his [relative]. No other detail or evidence was provided. Similar to the reasoning above as the applicants have only first raised the death of another leader in a similar position to the applicant for the first time after the hearing, despite being asked if they had anything to add and on the basis of the lack of detail as to his death, his name and his position; the Tribunal cannot be satisfied as to the credibility of this claim. The Tribunal is of the view if true it would have been raised previously particularly as they were asked at the hearing if they had anything further to add. It follows the Tribunal does not accept that an additional unnamed man was also killed in suspicious circumstances due to his activities and following of DSS, with the applicant when in India.

22. In making this finding the Tribunal has also considered the claim that not everything is reported and they will not be allowed to live in India. The Tribunal has difficulty accepting this as true considering the widespread reporting of events in India, particularly the violence against DSS followers in 2007.

23. In considering this finding the Tribunal has also considered the claim of the second named applicant that her mother told her not to come home as her life was in danger in 2015 after he father died. It has also considered the claim that she did not return to the funerals of her father and [another relative] due to a fear of her treatment as a DSS follower. However, the Tribunal does not consider that this outweighs the finding from the independent information above and does not lead the Tribunal to change its view that the applicants will not face a real risk of significant harm on return to India.

    Indian Congress Party

24. The applicant claims to fear return from SAD as he is a member of the Congress Party. He said he placed a flag in front of his home and most of the other members of DSS are members of the Congress party, although the Baba/Guru does not advocate support of any political party. However as raised with him the independent information leads the Tribunal to find he will not face a real risk of significant harm due to his continued association and membership of the Congress Party at the hands of SAD or Akali Dal or anyone else.

25. 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.[19] Information indicates it secured a landslide victory being 77 out of 117 seats[20] The DFAT Country Information Report for India dated 15 July 2015 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. The information from DFAT indicates that 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 that, in absolute terms, because of the sheer size and diversity of India that most Indians live their lives with a relatively low risk of violence.

    [19] ‘Congress landslide in Punjab or back to the future?', Institute of Asia and Pacific Studies, 21 March 2017, CISEDB50AD3650 89

    [20] 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.

26. On the basis of the applicant’s evidence or lack thereof of difficulties he will face on account of his membership of the Indian Congress party and the independent information outlined above the Tribunal does not accept that the difficulties the applicant will face as a result of being a member and follower of the Indian Congress party meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Migration Act. 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 subsection 36(2A) as a result of his political belief and following.

    Health of the Third Named Applicant

27. In the December 2013 protection visa application the applicant submitted reports pertaining to the health of the third named applicant. These were resubmitted by the third named applicant. These are dated from 2010 to 2012 and refer to the third named applicant suffering migraines, stress and anxiety as a result of the delay in visa processing and the uncertain future. No further medical reports or evidence has been submitted since 2012 and when asked at hearing the third named applicant said he has not visited a Doctor since 2012. The third named applicant claims he suffers from depression and the applicant said the first named applicant suffers from depression and panic attacks. It is also claimed that on return he will again suffer mental anxiety, depression and anxiety due to relocating and having not lived in India since he was [a young age]. The Tribunal is of the view if the applicant was suffering depression and panic attacks to the extent that it was interfering with his life to the extent claimed there would be further medical evidence since 2012. It is also of the view, on the lack of medical evidence before it since 2012, that it cannot be satisfied that he will or it is likely he will suffer the medical difficulties claimed if he has to return to India.

28. On the basis of the lack of independent medical evidence since 2012, the Tribunal does not accept that the difficulties the applicant will face as a result of his claimed current medical and mental difficulties or claimed future medical difficulties as a result of relocating as he has not lived in India since he was [young] meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Migration Act. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the third named applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) on this basis.

    Epidemic of Drug and Alcohol Abuse and high Youth Unemployment

29. The third named applicant raised that he fears return due to the violence, unemployment and high rate of drug and alcohol abuse in India. In the post- hearing submission it is claimed that that more than 95% of the youth are under drug and criminal influence ruining an entire generation, however no independent evidence was submitted as to this figure and the Tribunal was unable to on researching find information to support this statistical claim.

30. Notwithstanding, on the basis that he will be faced with these difficulties randomly, as raised with the applicant, the Tribunal is of the view that there is not a real risk he will suffer significant harm because the real risk is one faced by the population of the country generally and is not faced by the applicant personally. On the evidence before it the Tribunal cannot be satisfied that the problems the third named applicants faces upon return as a result of the drug and alcohol epidemic, societal difficulties and high unemployment constitutes significant harm under s.36(2B)(c) of the Act as the real risk is one faced by the population of India generally and is not faced by the applicant personally.

    Family in Australia and Time Spent in Australia

31. At the end of the hearing the applicants became emotional claiming it will be difficult for them to settle in India as the majority of their family resides in Australia. The first named applicant noted his father and [a number of] brothers live in Australia as citizens. They claim it will be difficult to return as they have spent ten years in Australia. The first named applicant claimed they no longer have their business there and things have changed significantly in ten years, and referred to the culture and people. They indicated that they are law abiding citizens who have paid taxes, who are not involved with drugs or have a criminal record. They referred to the third named applicant wanting to study.

32. In the post-hearing submission it is submitted that their son can hardly speak Punjabi and cannot read and write in the main languages. It is submitted that his whole studies have been in Australia and question how he will be able to survive. It is submitted that he is not used to the life in India with beatings and killings and being unable to speak the language. It is submitted that all his friends are in Australia and he has studied in Australia and he has no knowledge of Indian business. It is also submitted that the third named will become a product of the deteriorating, drug affected and criminal Indian society. It is submitted the third named applicant will not be used to Indians beating each other, swearing and shouting in streets.

33. While the Tribunal has empathy to their situation and it may be difficult to return after ten years in Australia in the manner claimed it is of the view that as the first and second named applicants have spent the majority of their life in India, their daughter is in India and the third named applicant spent the first [years] of his life in India and will be with his parents the Tribunal does not accept that the difficulties they will encounter leaving Australia and returning to India as outlined above meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Migration Act. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) on this basis.

34. In making this finding it considers that the third named applicant spoke in Punjabi at the hearing, sometimes interpreting for his mother and has strong family support. It has difficulty accepting that they are credible witnesses that the third named applicant cannot speak the language or read and write in Punjabi, when he lived in India, speaking the language and living in the culture, for the first [years] of his life.

35. It has also considered the claim that the third named applicant will become a product of the deteriorating culture in Punjab, Haryana and India including drugs, crime and widespread killings. In this regard the Tribunal has rejected the claims as to the widespread killings and beatings due to following DSS. It also does not accept on the evidence before it that any of the difficulties he will encounter due to a deteriorating culture, particularly as it is claimed he and his family are law abiding citizens and he has strong family support, meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Migration Act. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) on this basis.

    Conclusions regarding Complementary Protection

36. The Tribunal has also considered whether the applicants are eligible for complementary protection. Findings have been made above in this regard.

37. The Tribunal has considered whether the combination of each of the individual claims raised by each applicant would together create a real risk of him or her being subjected to significant harm on return to India.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm as defined in subsection 36(2A).

    CONCLUSION

38. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

39. There is no suggestion that any of the applicants 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

40. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Gabrielle Cullen
    Member