1701781 (Refugee)

1701781 (Refugee) [2021] AATA 687 (10 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701781
COUNTRY OF REFERENCE:                   India
MEMBER:Denise Connolly
DATE:10 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 February 2021 at 10:45am

CATCHWORDS
REFUGEE – protection visa – India – political opinion – membership and activity in opposition political party’s election campaigns and demonstrations – assaults and threats by government party supporters – religion – Sikh in Hindu-majority state – local disputes, lawsuits and attacks over land and water – credibility – return to home state after employment and living in city – wife’s return from Australia – no current knowledge of or activity in politics – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 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 dependants.
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 11 January 2017 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 26 October 2015. 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence to the Department
When making the visa application the applicant made the following claims. He was born on [Date 1] in [Village], Haryana, India. He reads and writes in English, and speaks, reads and writes in Punjabi and Hindi. His religion is Sikh. He married [Ms A] on [Date 2]. He and his wife have two daughters and a son. He was an [Occupation] in the [Employer] from October 1994 to March 2010. He also worked as a farmer in India. He arrived in Australia [in] July 2015 holding an Indian passport, issued on [in] 2014, having been granted a Subclass 600 Visitor visa [in] July 2015.
The applicant claims he left India because he was a member of the Indian National Lok Dal (INLD) and actively participated in their anti-government activities. The BJP opposition became his enemy. The BJP target INLD workers. He was assaulted physically. He tried to report this to the police but they would not listen. The BJP workers tried to take his land and filed false claims against him. He was involved in a court case regarding the occupation of his land. He and his family were threatened with harm in 2013. He had supported the local INLD candidate in the local election. False claims were made against him and he was jailed for a day. Sikhs are disadvantaged in India.
The applicant claims he moved to New Delhi but was not able to live there due to financial difficulties so had to return to his village. He also claims he cannot relocate because opposition political activists are assaulted by government party activists everywhere in India.
In a written submission attached to his application the applicant claims he was promoted to [Employment level] while in the [Employer]. He returned to his village after he retired from the [Employer] and worked as a farmer. His family were supporters of the INLD so after he returned to his village he became involved in INLD politics. However the majority of people in his village supported Congress and the BJP so most people in the village were against him. At the time INLD had been out of government in Haryana for about 10 years. The INLD leader Om Prakash Chautala and his son were jailed in 2013 in relation to a politically motivated case.
The applicant claims that he was involved in different INLD party programs, meetings and demonstrations. The BJP and Congress workers tried to take revenge on him and his family and threatened him for being involved in anti-government protests. Government supporters forcibly occupied his land and he filed a case against them. The proceedings went on for six months and was resolved by negotiation. A few months later he was attacked and threatened on his way home. They moved to New Delhi in January 2014 but they could not survive and so returned to the village after six months. He became involved in local politics. There was a state election on 15 October 2014 and he participated in the election campaign for his party’s candidate, [Mr B]. While his party lost the overall election, his candidate won in his constituency. The opposition were angry with the applicant, attacked him and tried to grab his land again. He fought them. [In] April 2015 he and his wife were attacked with an iron rod and seriously injured. They were taken to hospital and treated for a week. Another case was filed against the applicant by a Panchayat (village council) member, [Mr C]. The applicant was arrested and detained for a day and released on bail. They then felt unsafe and unable to live a normal life.
The applicant claims that Sikhs are disadvantaged in India as the BJP government is not supportive of them. He referred to an incident in October 2015 when the Sikh religious book was damaged and tension erupted in Haryana, resulting in Sikhs being assaulted. He claims that local BJP workers believe he is organising meetings from overseas and they have threatened his family. His family have informed him that he should not return to India.
The applicant provided documents about the land related proceedings referred to above.
The applicant’s wife, who was in Australia at the time of application, also made a protection visa application but indicated she was not making her own claims for protection. As advised by the applicant at the hearing, she returned to India in November 2016.
Evidence to the Tribunal
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was interviewed by the delegate on 3 January 2017. The Tribunal has listened to the recording of that interview. Evidence provided by the applicant at that interview is recorded in the delegate’s decision record.
The delegate was of the view the applicant’s decision to return to his village from New Delhi raises doubts about the veracity of his claim to fear persecution in his home region. With respect to the applicant’s claim that he would be persecuted on the basis of being Sikh, the delegate noted the country information indicates the situation for Sikhs is generally calm. He noted the country information is not supportive of the claim that Sikhs face a real chance of persecution in India on the basis of their religion.
With respect to the applicant’s claim to fear harm on the basis of his political opinion, the delegate accepted he was an INLD supporter and may have been known as such in his community. However he noted the applicant returned to his village after residing in New Delhi and concluded his return casts doubt on his claim to fear persecution in his home region. He also noted that the country information was not supportive of the claim that an INLD supporter faces a real chance of persecution in India. He noted the applicant had not made other attempts to seek safety outside his home region in a country as large, diverse and populated as India and this led him to conclude that the applicant did not have a well-founded fear of persecution in India on the basis of his political opinion.
When making his review application the applicant provided a written submission in which he set out the following information. He joined the [Employer] in July 1991 and retired in 2010. On retirement he returned to his village where he became involved in politics and joined the INLD because his family supported the party. He was physically assaulted and threatened by his opponents. His family was also threatened. There was a false case filed against him and he was arrested and taken into custody.
The applicant is of the view that in refusing his protection visa application the delegate did not consider the risk to his life and the harassment he suffered in India because of his political and religious beliefs. He claims there is evidence that Sikhs and INLD activists are harassed by Congress and BJP workers. He referred to a riot that took place in 2016 in Haryana where Sikh women were raped and men physically assaulted. He claims INLD supporters face day-to-day difficulties. As he was actively involved in INLD and anti-government activities, opponents acted against him and his family. He was physically assaulted and a case was filed against him [in] July 2013. He was attacked on his way home and his family members were threatened with death. He moved to Delhi [in] January 2014 but could not secure employment. After six months he returned to the village where he got involved in local politics. In October 2014 he campaigned for his local candidate, [Mr B], who won for his constituency. The opposition were angry and attacked the applicant and his wife with an iron rod. They were severely injured and were hospitalised. The incident took place [in] April 2015. Another case was then filed against him by [Mr C], a Panchayak member. (He claims it was filed [in] April 2015 however the Tribunal notes the date on the court documents is [April] 2014.) The applicant was arrested and detained for a day. He was released on bail. Local leaders negotiated the matter in exchange for money. After that he was not able to lead a normal life.
The applicant claims that Sikhs are disadvantaged in India as the BJP government is not supportive of them. He referred to the desecration of the Sikh religious book in October 2015 when tension between Sikhs and others resulted in various assaults. He claimed that since he has come to Australia his family members have warned him not to return to India.
The applicant provided country information about violence during the October 2009 elections, clashes between the Haryana Chief Minister and INLD protesters in 2010 and various attacks and protests in 2013.
The applicant provided court documents indicating the applicant was a party in proceedings in 2013 in which a complaint was made against the applicant, members of his family and others by [Mr D] and others. It was alleged that in June 2013 land was optioned and handed over to [Mr E]. When he started to cultivate the land the accused (the applicant and others) started abusing, threatening and manhandling him. He was denied access to the field. It appears however that a counterclaim was made in which those accused claimed to have sown the crops in the fields and that they had then been harassed and threatened.
There is a record of proceedings related to the claim set out above, dated [April] 2014, involving the applicant as one of many accused by [Mr C], an elderly man, indicating that they had been quarrelling and [Mr C] had been manhandled by the accused in relation to conflict which had arisen because of the obstruction of the flow of dirty water.
Pre-hearing submissions
The applicant provided numerous articles about Sikhs in India. While some of those articles are recent, others are seven years old. The articles deal with incidents occurring across India, not just in Haryana, and in Kabul. The applicant did not provide to the Tribunal any written explanation for why the various articles relate to his own circumstances. At the hearing he was invited to explain to the Tribunal the relevance of the articles. His comments are set out in detail below.
The applicant also provided to the Tribunal a copy of a First Information Report dated [February] 2019 recorded by Haryana Police regarding an incident reported by [Ms F] indicating that the applicant’s father was involved in conflict with [Ms F]’s family. It was recorded that his father rode past the complainant’s house and yelled at her family members. It was alleged the complainant’s husband was kidnapped and her parents-in-law were beaten by 30 to 40 people. The police recorded that further investigations would be undertaken.
The applicant also provided, in November 2020, a letter said to be from [Mr G], the District President, INLD, dated 7 September 2018, which states that the applicant joined INLD in January 2011 and was an active party member. He organised meetings, pasted posters and participated in rallies. It is asserted that BJP and Congress party members told him to leave INLD and join their party but he refused. They then attacked him and threatened to kill him. He went to the police but they refused to take the report. They said that they would file it as a false case and lock him up. He claims BJP and Congress party members, several times, went to his house and threatened his family. He was forced to leave India. If he returns to India he could be killed by BJP and Congress party workers.
Hearing on 2 December 2020
At the hearing the Tribunal discussed with the applicant the requirements of the law and his various claims. The following is a summary of the applicant’s evidence.
The applicant provided further articles at the hearing regarding recent protests by Haryana farmers and the use of water cannons to disperse a group of farmers by the Haryana police.
The applicant grew up and lived in [Village], Haryana, apart from his time in the [Employer]. His father owned the land on which they lived and farmed. He bought the land many years ago, although he has since sold about half of it. They also farmed village council land given to them in 1986 for which they pay a yearly fee. They continue to farm some of that land although they gave some back because of lack of funds. They grow rice and wheat. His father is still working on the land. The applicant’s son also works on the land.
The applicant completed high school and joined the [Employer] in 1994. He [worked] in the [Employer] for about 15 years. He left because he was not satisfied with the harsh conditions which were not favourable for Sikhs.
The applicant’s family in India live together. His son, aged [Age 1] works on the land and his twins, aged [Age 2] had been studying but stopped because of coronavirus.
The Tribunal asked the applicant about his wife’s circumstances. He indicated she came to Australia with him but she has since gone back to India, in about November 2016. The Tribunal asked if she was not fearful of returning to India. He indicated that she needed to return because of the elderly parents and her children. The Tribunal asked if there are any issues for his family in India. He indicated that the children were not being looked after so his wife needed to return. The Tribunal asked who is financially supporting his wife. He indicated he sends varying amounts of money to her every 2 to 4 weeks, depending on the circumstances. He works in a furniture warehouse in Australia and has been there for 3 to 4 years.
The Tribunal asked the applicant about the land disputes in which he has been involved. The applicant indicated the first dispute was in 2013. There were six parties involved and he named some of them. The Tribunal asked the applicant to identify the plaintiff. The applicant indicated it had been five or six years and he could not remember his name. He indicated that the case was settled by compromise. The Tribunal asked about the next time he was involved in a case. He indicated that some people had lodged a case against his father. The Tribunal asked about the plaintiff in that case. He indicated it was people from the other party and mentioned [Ms F]. The Tribunal asked for particulars about the other cases in which he was involved. The applicant indicated there were many cases and even now land is being taken away and there are protests. The Tribunal explained it was asking questions about cases for which he had provided documents and made claims. The applicant made some general comments about Sikhs being prosecuted however it did not hear him mention the case involving [Mr C], the Panchayat member.
The Tribunal noted that the applicant had not mentioned the case involving the diversion of dirty water. The applicant indicated he had mentioned that [Mr C] lodged a case against them and it was resolved. The Tribunal explained that it sounded like there had been conflict between parties which has now been resolved. It asked why the applicant would fear returning to India given that resolution. The applicant indicated they had to make payments to achieve the resolution. He claimed people find any excuse to start proceedings against Sikhs. The Tribunal noted in that case the complainant, [Mr C], is a Sikh, and questioned whether [Mr C] would have commenced the proceedings merely because the applicant is a Sikh. The applicant then referred to the attack on the Golden Temple in 1984. The Tribunal noted that since then India has had Sikh leaders (Manmohan Singh was India’s Prime Minister from 2004 to 2014). The applicant indicated that servants of the government are exempt from attack.
The Tribunal asked the applicant why he cannot return to India. He claimed they are prosecuting Sikhs in India - they are engaging in genocide against Sikhs.
The Tribunal asked the applicant about his political activity. He indicated that in January 2011 a friend introduced him to the INLD party. The Tribunal noted the applicant had indicated he became involved in the INLD because his family were involved. The applicant indicated once he returned to the village he was mixing with friends. He joined the party because it was talking about Sikhs and advocating that Sikhs should not be persecuted on the land where their religion was born.
The Tribunal asked for details of the applicant’s political activity. He indicated that he handed out pamphlets, talked to people and organised meetings. The Tribunal asked for further particulars. The applicant indicated he would get people to come to meetings by inviting them and making them aware of what is happening to Sikhs. He indicated he also protested.
The Tribunal asked the applicant to give details about the last time he was harmed in India because of his political involvement. The applicant indicated it was in 2014 when they came to his house. They tried to attack him with an iron rod but his wife stepped between then. The Tribunal asked when the applicant first experienced harm because of political involvement. The applicant indicated it was in July 2014 when he was attacked by BJP workers.
The Tribunal asked the applicant when he went to New Delhi and why. He indicated he went there in January 2014 because members of the opposition parties were bothering him. He could not find sufficient work in New Delhi so he returned to the village. The children were going to go with him but they had their exams in the village so they returned. He did not enrol them in school in New Delhi because it was expensive.
The Tribunal asked the applicant about the current status of the INLD. The applicant indicated it is “almost finished”. The son of the leader Chautala is in jail so there is not much left of the party. The Tribunal asked how the party performed at the last election. He indicated that it won no seats however he acknowledged that he may not have been paying attention. He indicated that his local representative lost. The Tribunal asked how the party had performed in 2014. He indicated his candidate had lost. He was not sure about other candidates. The Tribunal noted that this appeared to be inconsistent with the applicant’s written statement indicating his candidate, [Mr B] had won. The applicant then repeated that his candidate had won.
The Tribunal asked the applicant to describe the INLD’s policies and platforms. The applicant asked if the Tribunal was referring to its attitude to Sikhs. The Tribunal asked that he describe his understanding of the party’s policies and platforms. The applicant made a general comment that whatever the central government says, INLD cannot go against it. The Tribunal noted that the applicant had not mentioned INLD’s support for farmers which it understood from the country information is one of its significant platforms.[1] The applicant stated that they all say they support farmers.
[1] “Explained: How the INLD is trying to chart a revival path in Haryana politics”, The Indian Express, 18 June 2020, accessed 24 November 2020

The Tribunal asked the applicant about the INLD split in 2018.[2] The applicant indicated some people went to the JJP and merged with that party and now the party (INLD) is dead. He referred to the death of [Mr B]. The Tribunal noted the country information referred to a bitter split in 2018 as the leader Chautala had expelled two of his own sons from the party throwing his weight behind the younger son. It explained that the country information indicated that the loss of supporters to the JJP was not until 2019. It explained his lack of detailed knowledge may suggest he is not involved in the INLD as claimed in the support statement provided from district president in 2018 and will not be involved. The applicant indicated it has been 6 years since he was involved and he is not familiar with the current party issues. He made the general claim that the systems in India are against Sikhs.
[2] ibid
The Tribunal referred to the numerous articles the applicant had provided before the hearing. It noted that some of those articles were up to 7 years old and so it may form the view they are not current or relevant. It noted he had provided articles about incidents occurring in Uttar Pradesh, hundreds of kilometres from his home in Haryana and Shillong, nearly 2000 kilometres away. It asked the applicant to explain why that country information is relevant in his case. The applicant indicated that Sikhs are being harmed all over India. He is a Sikh and they tried to take his land. The Tribunal noted that the applicant does not own land; it is owned by his father and his father retains some of that land. The applicant indicated that the land issue is an excuse to get rid of Sikhs.
The Tribunal noted that the applicant has claimed to fear harm in India because he is Sikh. It referred to the country information indicating there are over 19 million Sikhs in India, and a significant percentage of the Sikhs live in the Punjab (the state next to Harayana) where they comprise the majority of the population. It explained that the country information indicates Sikhs face a low level of official and societal discrimination and violence. The applicant indicated that systems in India are against Sikhs. Sikhs are not allowed to have a referendum on their independence.
The Tribunal noted that the applicant had provided country information indicating that three Sikh activists had been sentenced to life imprisonment for wanting to create Khalistan. It asked why that information is relevant in his case, given that there is no evidence to suggest that he has been actively involved in advocating for the creation of Khalistan. The applicant referred to an article about a member of the Khalistan Liberation Front but did not say that he is a member. The Tribunal invited the applicant to explain why his other country information is relevant to his circumstances. The applicant indicated that KLF members have been arrested. He has been prosecuted merely because he was trying to help a candidate.
The Tribunal explained that the applicant’s wife’s return to India may suggest she was not fearful in India, and this may cast doubt on his claims that the family was threatened. The applicant indicated that she used to care for his parents and his brother is paralysed. She needed to return to care for the family.
The Tribunal discussed with the applicant his political views and the country information indicating opposition supporters do not face official or societal discrimination and while there may be violence during parliamentary and state elections, especially where results are tightly contested, in general elections in India are peacefully conducted. It explained that it may not accept that merely because he was not a supporter of the BJP and Congress parties that he would be harmed in India in the way he claims. It explained that it may form the view the applicant could return to his home village and live and work safely. It also noted that he had returned to his village from New Delhi, suggesting he did not fear serious harm. The applicant indicated that the BJP and Congress want to damage Sikhs by taking their land. They are in power in Haryana.
The Tribunal noted the applicant provided a letter dated 7 September 2018 from [Mr G] in November 2020. It asked about the delay in providing that letter. The applicant indicated he sent some papers by post and thought that he could bring others in person.
The Tribunal asked the applicant if he had any other evidence to give to support his claims to fear harm in India. The applicant indicated that even if Sikhs go to other states in India they are prosecuted. The Tribunal asked why they are prosecuted. He referred to an article about a Sikh being arrested. The Tribunal asked how that was relevant to his circumstances. He claimed that even if he left Haryana he would not be safe. The applicant also claimed that Sikhs face eviction from their land. He referred to articles about Sikhs being evicted.
The Tribunal asked the applicant why he had provided an article about Sikhs in Kabul being killed. The applicant indicated the Indian government was involved. He referred to Sikh lawyers being held political prisoners however he confirmed he is not a lawyer. He referred to a petition and a reference in the holy book making clear that Sikhs are not Hindus and indicated there is an expectation in India that Sikhs not practise as Sikhs.
Post hearing submissions
After the hearing the applicant appointed a registered migration agent to act as his representative. The representative then, having obtained a copy of the hearing recording, provided a written submission on 11 December 2020. It was submitted that the applicant believed he was not able to effectively articulate his claims at the interview (presumably this refers to the hearing).
The representative set out the applicant’s background consistent with evidence already provided by the applicant but provided the following further evidence. The applicant chose to become a member of INLD because the party took an interest in upholding Sikh peoples’ rights. He was an active member, organising meetings, demonstrations and talking to villagers about their rights and the party’s manifestos, and became well known in his village as an active member, but was not known nationally. He was noticeable to BJP and Congress party members working in the area and was targeted and harassed. Reference is made to the attempted “land grabs”. The applicant claims there was a consistent pattern of harassment because of his political and social activities. The Indian government has an agenda to crack down on Sikh activists such as the applicant. He believes he was persecuted as part of a movement against Sikhs with links to the Khalistan separatist movement, of which he is not a member. However his involvement in local politics could create a sense of apprehension as he is more politically and socially vociferous than ordinary Sikhs and is likely to support a separatist movement for a homeland for Sikhs.
It is submitted that while the applicant is not currently a member of the Khalistan movement he was an active supporter of Sikh peoples’ rights and in that sense he became a target. There is general discrimination against the Sikh community but it is more dangerous for him because he is an activist, which makes him prone to persecution by the BJP. The movement for a separate homeland is a sensitive issue.
Regarding inconsistencies and issues raised at the hearing the representative submitted:
·the applicant made a genuine mistake when he indicated his local constituent did not win at the 2014 election because he was thinking about the 2019 election.
·The applicant’s wife had no choice but to return to India because she had to look after the family. She is not an activist so not a direct target.
·The applicant provided the front page of an FIR dated 27 February 2019 relating to a complaint by [Ms F].
·The Tribunal was incorrect to assume the applicant did not come to the attention of the authorities because his work was confined to the village as the authorities are more concerned about the separatist movement spreading to villages, at the grass roots levels.
·The country information the Tribunal referred to does not capture the real situation as there is widespread discrimination and harassment of Sikhs, which is not correctly reported. It was for this reason that he presented numerous articles to the Tribunal.
The representative submitted the applicant feared harm in India because he is a Sikh with political affiliations and Sikhs are persecuted by the current government, especially in relation to their demands for a separate homeland. He fears he will be physically harmed, incarcerated for his political beliefs or killed, as are many Sikhs in India. He also claimed the applicant will be arbitrarily targeted although he does not expand on this claim.
Country information
Since the hearing the Department of Foreign Affairs and Trade has published a new Country Information Report – India, dated 10 December 2020. The Tribunal has considered the information discussed with the applicant at the hearing, taken from the previous DFAT report. It is satisfied that the information discussed with the applicant has not changed, except that the Sikh population has increased. Given the country information discussed at the hearing is essentially the same in the new report, the Tribunal does not consider it necessary to have another hearing.
The DFAT Country Information Report – India, 10 December 2020 provides the following information on Sikhs in India:
India has a Sikh population of 20.8 million people (2011 census). The growth rate of Sikhism declined since the 2001 census. Sikhism is the dominant religion in the state of Punjab (approximately 16 million people) with significant populations in Haryana (1.2 million), Delhi NCR (570,581), Rajasthan (872,930), Uttar Pradesh (643,500) and Uttarakhand (295,530).
India’s Sikh population has suffered from issues surrounding recognition. The constitution groups Sikhs, Buddhists and Jains with Hinduism; therefore they are not legally recognised as distinct religions.
One of the points of difference between Sikh groups is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. During the internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984, the Indian government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The army bombarded the Golden Temple complex, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.
In retaliation for Operation Blue Star, two of then-Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days following, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which allegations emerged of torture, extrajudicial killings and deaths in custody carried out by security forces.
NGOs report communal violence disproportionately affects India’s religious minorities, in particular Muslims, but also Christians and Sikhs, who face varying degrees of socio-economic, cultural and legal discrimination. Reports of minor cases of violence against Sikhs occur. Media sources have reported isolated incidents involving Sikhs and the police in recent years:
- After a road accident in Mukherjee Nagar Delhi, in July 2019, an argument broke out between a Sikh ‘tempo’ driver and police, during which police beat the driver. After an inquiry, the police involved were dismissed from duty for ‘unprovoked, indiscreet and highly unprofessional’ behaviour.
- A 2018 article by Punjab-based Sikh Siyasat News (SSN) reported a mob attack in Karnataka injured a Sikh man and led to six arrests. The police report indicated the man was mistaken by the mob to be a ‘child lifter’ and the villagers, ‘unaware of [its] significance,’ mistook his kirpan (small sword used as an article of faith in Sikhism) as a weapon.
- Another 2018 SSN article indicates a family reportedly attacked in Haryana detailed police inaction on their case, and the police threatened to charge the family instead.
According to information cited by the Immigration and Refugee Board of Canada (IRB), since the late 1980s, Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities. IRB notes while there can be localised discrimination, for example blocking entry to public areas or requiring the removal of articles of faith (turbans or kirpans) before sitting examination in educational programs, such issues are adequately addressed by local courts or police. Sikhs may face difficulties integrating in areas where a Sikh community does not already exist and may face discriminatory treatment from law enforcement and government officials for wearing the kirpan.
DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.[3]
[3] DFAT, Country Information Report – India, 10 December 2020, p. 33.
The DFAT report states the following concerning political opinion and critics of the Indian government:
India’s constitution provides for freedom of speech and expression, freedom of assembly, and the right to form associations (Articles 19-22). The Government of India can impose reasonable restrictions to these freedoms in the interests of sovereignty and integrity of India, national security and public order, and to maintain decency and morality. India has laws on sedition and criminal defamation, and laws regulating the use of the internet. According to Human Rights Watch (HRW), these laws curb Indians’ constitutional freedoms.
Democratic elections for the Lok Sabha, the lower house of parliament, have been held since 1951. The only exception to this was when the Indian Congress Party’s then-Prime Minister Indira Gandhi postponed elections during a period of emergency rule from 1975 to 1977. Notwithstanding the scale and complexity of India’s political landscape, and noting some exceptions, elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. Activists have occasionally called for communities in conflict-affected areas to boycott electoral processes, and low-level violence has sometimes occurred.
India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.
Observers assess the government has sought to align Indian nationalism with Hindu nationalism. They claim the BJP has benefited politically from some Hindu organisations’ use of violence to polarise the electorate along religious lines. The 2019 USCIRF report – which the Indian Government rejects – claims certain BJP members have affiliations with extremist Hindu groups and have used inflammatory language about religious minorities publicly (see Recent History and Hindu nationalist organisations). This has led to concerns minority rights and religious freedoms are being threatened, and the link between democracy and secularism is being weakened.[4]
…
DFAT assesses leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, given the scale of the Indian election process, elections are conducted peacefully. DFAT assesses people who publicly express views critical of the government face a moderate risk of official discrimination This may include arrest, harassment and prosecution.[5]
[4] DFAT, Country Information Report – India, 10 December 2020, p. 35.
[5] ibid, pp.36 – 37.
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.
Nationality
The applicant claims to be a citizen of India and has provided to the Department a copy of his Indian passport. In the absence of any evidence to the contrary, the Tribunal is satisfied the applicant is a citizen of India. It finds India is his receiving country for the purpose of assessing his claims.
Does the applicant have a well-founded fear of persecution?

The Tribunal has taken into account the applicant’s post hearing assertion that he is of the view he was unable to effectively articulate his protection claims at the hearing. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant confirmed he understood the interpreter. The Tribunal is satisfied the applicant understood its questions and had an opportunity to provide his responses in his first language, Punjabi. It is also satisfied it gave the applicant a fair opportunity to give his evidence and present his arguments on all of his claims and the issues raised in his case. Nevertheless it has considered carefully the post hearing submission and the new evidence provided by the representative.
The applicant has claimed that he was an active member of INLD and participated in anti-government activity. He has claimed that he was physically assaulted as a consequence and when he sought to report it, the police would not listen to him, accused him of making false claims and threatened to imprison him. He has claimed that false land claims were made against him, because he is Sikh and also in retribution for supporting the successful INLD candidate, [Mr B]. He has claimed that he was detained for a day after [Mr B]’s success. The applicant has claimed that the BJP and Congress party workers have threatened and harmed him. He has claimed he and his wife were attacked in April 2015 and required one week’s hospitalisation. He has claimed Sikhs are disadvantaged by the BJP government and there is targeted prosecution of Sikhs to deprive them of land. He has claimed he has been accused by the BJP of organising meetings from overseas. He has claimed his family has been threatened and he has been warned to not return to India or he will be killed. He has claimed the government is engaging in genocide against Sikhs.
In the post hearing submission it is claimed that the applicant became a member of INLD because the party took an interest in upholding Sikh peoples’ rights. He was well known in his village as an active member, but not nationally. Accordingly he was noticeable to BJP and Congress party members working in the area. There was a consistent pattern of harassment because of his political and social activities. The Indian government has an agenda to crack down on Sikh activists such as the applicant. He was persecuted as part of a movement against Sikhs with links to the Khalistan separatist movement, of which he is not a member, but his involvement in local politics could create a sense of apprehension as he is more politically and socially vociferous than ordinary Sikhs and is likely to support a separatist movement for a homeland for Sikhs. While the applicant is not currently a member of the Khalistan movement he was an active supporter of Sikh peoples’ rights and in that sense he became a target. There is general discrimination against the Sikh community but it is more dangerous for him because he is an activist, which makes him prone to persecution by the BJP. The movement for a separate homeland is a sensitive issue.
The Tribunal accepts that the applicant was in the [Employer] from some time in the 1990s until 2010. It accepts that he left the [Employer] because he was not happy with the hardship and conditions, although on the evidence before it, it is not satisfied the conditions were significantly less favourable for Sikhs. It is not satisfied the applicant will suffer any harm if he returns to India in the foreseeable future because he was [an Occupation] in the [Employer] until 2010.
The Tribunal accepts that after the applicant left the [Employer] he returned to his father’s land in the village. It has considered his claim that he then joined and became an active member of INLD. It notes his written claim was that he did this because his family supported INLD. This was repeated in his post hearing submission, that he joined in 2011 because his father was an INLD supporter. He also asserts he joined because INLD was interested in upholding Sikh peoples’ rights. However he told the Tribunal he joined because a friend introduced him to the party. This inconsistency was raised with him but the Tribunal is not satisfied he has adequately addressed it.
In the post hearing submission the applicant expands his evidence on his INLD activities and claims to have been well known in his village as an activist, talking to villagers about their rights and the party’s manifestos. The Tribunal notes however that when it asked at the hearing about the party’s policies and platforms the applicant’s evidence was scant and unpersuasive. It is not satisfied the applicant presented evidence demonstrating that he was a well known INLD activist or that he talked to villagers about the party’s manifestos. Given the applicant has claimed to be a well known activist, organising meetings and demonstrations, and talking to villagers about their rights and the party’s manifestos the Tribunal considers it reasonable to expect that in his oral evidence he would be able to describe in more detail the party’s policies and platforms, even if his active involvement was some years ago. In its view his knowledge at the hearing was rudimentary. It is prepared to accept that he had some involvement in INLD as he had some knowledge of the party. It finds his oral description of his political activity to lack the detail which it considers reasonable to expect from someone who claims to have been politically active from 2011 until 2015. It takes into account the letter of support dated 7 September 2018, said to be from the District President but, given its concerns that his claims about his activism have been embellished, it gives little weight to the letter.
The Tribunal also notes that there appears to be an inconsistency in the applicant’s claims regarding harm he suffered as a consequence of supporting [Mr B]’s election campaign. The applicant claims that he actively supported the INLD’s successful candidate in the October 2014 election. He claims the opposition was angry about this and threatened him and tried to “grab our land again”. The applicant claims he and his wife were attacked with an iron rod and severely injured in April 2015. Then “they” filed a case against him [in] April 2015. However as discussed with him at the hearing the Court documents he provided record that those proceeding commenced [in] April 2014, before the October 2014 election. The Tribunal is of the view this casts significant doubt on the applicant’s claims. The Tribunal also takes into account the DFAT report which records that opposition supporters do not face official or societal discrimination and while there may be violence during parliamentary and state elections, especially where results are tightly contested, in general elections in India are peacefully conducted.[6] The Tribunal is not satisfied the applicant has been targeted and harmed in the ways he has claimed by the BJP and Congress party workers. The Tribunal also notes that when it asked him at the hearing when he was last harmed in India he indicated it was in 2014. Yet in his written claims he indicated the incident with the iron rod took place [in] April 2015. The Tribunal is of the view this inconsistency casts significant doubt on the claim. Given the inconsistency in the evidence about the timing of the consequent complaint by [Mr C], it does not accept he was attacked with an iron rod and that he and wife then spent a week in hospital for treatment in April 2015. It finds this claim has been manufactured.
[6] Ibid, page 37
The Tribunal has also considered the applicant’s claim the police told him they would file his complaint as a false case and lock him up. Taking into account concerns about the reliability of the applicant’s evidence on this assault, it is not satisfied the police accused him of making a false claim and threatened to lock him up.
While the Tribunal is prepared to accept the applicant may have had some low level involvement in the INLD, based on his evidence and knowledge about the party’s past, it is not satisfied his involvement was such that he had an adverse profile or was considered a political activist. The Tribunal notes at the hearing he claimed his local constituent lost the election in 2014, yet his written claims are that he won. In his post hearing submission it was asserted this was a mistake because he thought the Tribunal was asking about the 2019 election. The Tribunal is not persuaded this explains the inconsistency, give the applicant admitted at the hearing that it has been 6 years since he was involved and he is not familiar with the current party issues. Given his scant knowledge about the party’s recent and current status, even if he had some involvement in the INLD in the past, the Tribunal is not satisfied he is currently interested or involved in the party. It is not satisfied the applicant will be actively involved in the INLD to the extent that he will have an adverse profile with opposition members if he returns to India in the foreseeable future. It is not satisfied the applicant has had or will have an adverse profile based on any real or imputed political opinion if he returns to India such that he would be targeted or harmed as he has claimed. It is not satisfied there is a real chance the applicant will suffer serious harm because of any past or future association with INLD.
The Tribunal notes the applicant’s wife has now returned to India, casting further doubt on the claims that she was harmed in 2014/2015 during an attack by opposition members and the family has been targeted. The Tribunal accepts his wife returned because she needed to care for elderly parents, a paralysed brother and children. However it is of the view her voluntary return suggests she was not fearful of returning to their home village. It notes the applicant’s post hearing submission that his wife could return because she is not an activist and not a direct target. However this casts doubt on the applicant’s earlier claim that his family has been targeted by local opposition members.
The Tribunal has considered the claims that false claims have been made against the applicant because of his political involvement and his Sikh religion. It notes however that the plaintiff in one case, [Mr C] is a Sikh person so it has serious doubt that religion motivated that claim. It also notes that resolution of the various claims has been negotiated by payment. While the applicant appears to have been a party in at least two land related claims, it does not accept these cases are evidence that the applicant has been targeted and/or harmed by legal proceedings relating to land claims because of his political views and/or religion. It is not satisfied there is evidence that the applicant will be targeted and prosecuted over land claims in India if he returns in the foreseeable future because of his political views and/or religion. It has considered the evidence that [Ms F], apparently also a Sikh person given her name, lodged a complaint about the applicant’s father, and while it accepts there has been conflict between the applicant’s father and [Ms F], it is not satisfied this is evidence that there is a real chance the applicant will be seriously harmed by prosecution over land claims if he returns to India.
The Tribunal notes in his written application the applicant claimed that the BJP believe he is organising meetings from overseas however he did not repeat this claim at his hearing. The Tribunal is of the view it was not repeated because it has been manufactured and by the time he had his hearing he forgot he made the claim.
The Tribunal has considered the claim that the applicant went to New Delhi in January 2014 because he had been attacked and his family had been threatened. It notes he returned to the village because he could not secure suitable employment. It also notes his children returned to the village to undertake exams, despite his claim that his family had been threatened with harm in 2013. It is of the view this casts significant doubt on the claim the family had been threatened. It does not accept the applicant went to New Delhi because he feared harm. It notes there are millions of Sikhs living nearby in the state of Punjab. It is of the view that if the applicant genuinely feared harm in his village he would not have returned from New Delhi to his village; he would have sought to relocate in another area in India where there is a significant Sikh community, such as the state of Punjab. Having considered the DFAT report the Tribunal does not accept his evidence that Sikhs cannot live safely anywhere in India or that they run the risk of prosecution and/or persecution wherever they go. While it accepts Sikhs have suffered from issues with recognition and localised discrimination, it notes the DFAT report indicates Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities. Accordingly the Tribunal does not accept the government is engaged in genocide against Sikhs.
The applicant raised an issue about the Tribunal relying on the DFAT country information which he believes is not a true reflection of the circumstances for Sikhs in India. The Tribunal accepts that there have been events affecting Sikhs in India that might not be included in the DFAT country information report. While it must have regard to the most recent DFAT report, it should also have regard to the country information provided by the applicant. Having considered the various articles he provided the Tribunal accepts that there have been arrests and prosecutions of Sikhs, such as those advocating the establishment of Khalistan, and there has been conflict between farmers and the police as indicated by the articles reporting the use of water cannons during protests by farmers, some of which the Tribunal accepts may have been Sikhs. In his post hearing submission the applicant claims that, while not a member of the Khalistan movement, he is known as a political activist, purposely working towards Sikh peoples’ rights and freedoms. For the reasons given above the Tribunal has formed the view the applicant has embellished his role the INLD and it is not persuaded the applicant has a profile as an activist promoting the rights of Sikhs. Nor is it persuaded he has a profile as an outspoken advocate for Sikh people. It accepts he is Sikh and is interested in Sikh peoples’ rights but it does not accept his assertion in the post hearing submission that he is more politically and socially vociferous than ordinary Sikhs and is likely to support a separatist movement for a homeland for Sikhs. It is of the view this claim was made after the hearing to strengthen his claim to be a refugee. It is not satisfied in his oral evidence the applicant presented as an outspoken advocate in support of the separatist movement. His comment when this issue was raised with him was that Sikhs are not allowed to have a referendum. It is not satisfied the applicant will openly advocate for a referendum or a separate Sikh homeland, or that he will attract the adverse interest of the authorities, if he returns to India in the foreseeable future. It is not satisfied that he has demonstrated he was actively involved in promoting the referendum proposed by the advocates of the establishment of Khalistan, or that he intends to do so in the future.
The Tribunal has considered the claim that Sikhs are disadvantaged in India as the BJP government is not supportive of them. It has also considered the country information he has provided about conflict between Sikhs and the authorities. However it notes from the DFAT report that Sikhs face a low level of official and societal discrimination and violence. It notes DFAT reports that Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities. Taking into account DFAT’s report and concerns about the reliability of the applicant’s evidence, the Tribunal is not satisfied the applicant genuinely fears harm in India because he is Sikh. Nor is it satisfied there is a real chance the applicant will suffer serious harm if he returns to India in the foreseeable future because of his Sikh religion.
Having considered his claims and evidence, the Tribunal has not considered whether the applicant can relocate because it is not satisfied the applicant cannot return to his home village in the state of Haryana and live safely. It is not satisfied there is a real chance the applicant will suffer serious harm because of his political views or religion, or for any other reason, if he returns to his home village.
Considered overall the Tribunal has serious doubts about the reliability of the applicant’s claims to have been harmed or to fear harm in India. For the reasons discussed above it is not satisfied he is a credible witness. It does not accept he was targeted and harmed by BJP and Congress party workers, or detained by police or threatened with detention because of his political profile, his religion or for any other reason. It does not accept he and/or his wife were physically assaulted and spent a week in hospital recovering. It does not accept false claims or “land grabs” were made against him because of his political views or his religion. It notes that while the country information records an incident in October 2015 when the Sikh religious book was damaged and tension erupted in Haryana, he was actually in Australia at the time. It does not accept the applicant feared harm in India because he is a Sikh with political affiliations and Sikhs are persecuted by the current government. It does not accept he fears he will be physically harmed, incarcerated for his political beliefs or killed. Overall the Tribunal is not satisfied that the applicant was harmed and/or threatened in India. It is not satisfied that he will be harmed if he returns to India. It has formed the view that the applicant has manufactured his claims to fear harm in an effort to achieve his desired migration outcome. It is not satisfied the applicant is of adverse interest to the authorities, the BJP or Congress party members or any person in India. Accordingly it is not satisfied the applicant genuinely fears serious harm if he returns to India in the foreseeable future. It is not satisfied the applicant is a person who has a well-founded fear of persecution. Nor is it satisfied there is a real chance of persecution for any of the reasons set out in the Act.
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?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may meet the criterion for the grant of a protection visa under the complementary protection criterion.
As indicated above the Tribunal is not satisfied the applicant is a reliable witness and it does not accept his claims to have been threatened and/or harmed or to fear harm in India. The Tribunal notes the applicant has been able to work on the family farm in India where his father and son continue to work. It notes his family continue to reside in Haryana, where his wife returned in November 2016. He speaks, reads and writes in Punjabi and Hindi and reads and writes in English. He claims in his visa application he completed a Higher School Certificate. He had about 15 years’ experience in the [Employer]. On this basis the Tribunal is satisfied the applicant will have accommodation and be able to secure some form of employment in India such that he will be able to subsist.
In the post hearing submission the applicant has claimed he will be arbitrarily targeted although he does not expand on this claim. On the evidence before it the Tribunal is not satisfied the applicant will be arbitrarily targeted.

Considered overall, the Tribunal is not satisfied there is reliable evidence to indicate that there is a real risk the applicant will suffer significant harm if he returns to India in the reasonably foreseeable future. While it accepts he follows the Sikh relegation, has been in the [Employer] and had some political involvement as a member of INLD in his village, the Tribunal is not satisfied this gives rise to a real risk he will suffer significant harm if he returns to India in the foreseeable future.
On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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.
…

[2021] AATA 687

10 February 2021

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction