1702082 (Refugee)

1702082 (Refugee) [2017] AATA 2222 (11 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702082
COUNTRY OF REFERENCE:                  India
MEMBER:Michael Hawkins
DATE:11 August 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 11 August 2017 at 5:20pm

CATCHWORDS
Refugee – Protection Visa – India – Religion – Dera Sacha Sauda – Fear of violence – State protection –Credible witness
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2
CASES
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] January 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas [in] April 2016. The delegate refused to grant the visas on the basis that he was not satisfied that the first-named applicant is a refugee as defined by section 5J(1) of the Act, and nor was he satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk the applicant will suffer significant harm. As the second, and third-named applicants are members of the same family unit, they did not satisfy s.36(2)(b) or (c).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, 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.
‘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.
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.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issue in this case is whether the first-named applicant (hereinafter referred to as “the applicant”) meets the refugee criterion, and if not, whether he is entitled to complementary protection and then whether the second and third named applicants are considered to be members of the same family unit. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is a [age] year old man from the city of [name of city], province of Punjab, India.
The applicant is of the Sikh faith, is of Indian ethnicity and speaks Punjabi, Hindi and elementary English.
The applicant is married with a wife and one [age] year old son (the second and third-named applicants).
The applicant married [in] February 2009 in India.
Neither the applicant, nor second-named applicant provided any details of their education or employment histories in their application forms.
The second-named applicant was granted a [temporary] visa [in] April 2009, which expired [in] November 2011.
The applicant arrived in Australia [in] June 2009 under passport [number], issued [in 2004] and expiring [in] 2014.
The applicant returned to India from [March] 2011 to [May] 2011 to visit his family.
The second named applicant applied for [another temporary] visa [in] October 2011. The applicant and third-named applicant were members of the same family unit. The visa was refused by the delegate [in] March 2012. A review of the delegate’s decision was sought. The second-named applicant and applicant were invited to a hearing to take place on 28 April 2014 but did not appear. The Tribunal affirmed the delegate’s decision on 30 April 2014. The Federal Circuit Court dismissed the appeal [in] February 2015. The Full Federal Court dismissed an appeal [in] May 2015. A Ministerial Intervention Request was not referred to the Minister [in] March 2016.
The applicant has renewed his passport which is now number [new passport number], issued [in 2013] and expiring [in 2023].
The applicant applied for a protection visa [in] April 2016.
The applicant attended an interview with the delegate [in] January 2017. No further submissions have been made to the delegate since that interview or to the Tribunal in support of their application.
Claims:
The first-named applicant (“the applicant”) is a Sikh from the State of Punjab, India.
The applicant claims that he and his family will be attacked by extremist Sikhs.
The applicant claims that he became a follower of Dera Sacha Sauda (DSS) after his arrival in Australia.
The applicant claims that as many people from his home town are studying in Australia, they found out about his association with DSS.
The applicant claims that he has been threatened over the phone and his family in India have pressured him to leave the DSS.
The applicant claims that he has moved around Australia to escape the threats, but the threatening calls have continued.
The applicant claims that extremist Sikhs in Punjab attack DSS followers and the police do nothing about it. He claims it would be easy for the extremist Sikhs to locate them anywhere in India.
The second and third named applicants have made no protection claims of their own.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
§The applicant’s protection visa application form completed and signed [in] October 2015, lodged [in] October 2015 (“visa application”);
§The applicant’s identity documents being certified copy of a passport;
§The protection visa decision record (‘delegate’s decision record’) of [January] 2017;
§The review application form which included a copy of the delegate’s decision record;
§Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on India, published on 15 July 2015 and its Thematic Report, Indian State of Punjab, dated 7 December 2016.
Country of reference / receiving country
The applicant claims to be an Indian national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Hearing:
The applicants attended the hearing on 4 August 2017. They were not represented. The Hearing was assisted by an interpreter in the Punjabi language.
The Tribunal noted that the applicant’s departmental file includes a certificate and notification regarding the disclosure of certain information under s. 438 of the Act. The reason given for why disclosure of the information subject to the certificate would be contrary to the public interest is that the folio contains information relating to ‘an internal working document and business affairs’.
The Tribunal gave consideration to the validity of the certificate and on the basis that a public interest reason had not been identified for the relevant folio, finds the certificate invalid. The folio subject of the invalid certificate has not been considered relevant to this review because it is largely administrative and in any event lacked any explanation as to what the document was actually about. The Tribunal placed no weight on this information.
The applicant confirmed that his protection visa application form was completed by him with assistance from a migration agent and signed by him.
The second-named applicant confirmed that her protection visa application form was completed by her with assistance from a migration agent and signed by her.
The Tribunal sought to clarify some of the matters referred to in the applicant’s background.
The delegate referenced the visa histories of the applicants and noted that the applicant had come to Australia pursuant to a [temporary] visa. He said his wife had the [visa] and he was a dependent. The Tribunal noted that the second-named applicant had had granted to her a [temporary] visa, and that she then applied for a second [visa of the same type], but that the application was unsuccessful. It noted the appeal history of that visa application, noting that it had gone to the AAT, FCC and finally the Full Federal Court and that Ministerial Intervention had been unsuccessful. The Tribunal asked the second-named applicant why she had not appeared at the AAT hearing. The applicant said they had. The Tribunal noted the decision of the Tribunal that said they had not appeared at the time and place for the hearing, even after some hours, and that four attempts had been made to call them, but it had gone to message bank. The applicant said the AAT had called, but the line was disconnected.
The Tribunal noted that neither the applicant nor second-named applicant completed the sections of their application forms relating to their past education and working histories. The Tribunal asked them about this. Why was the form not completed in detail? Neither of the applicants could explain why they did not complete those parts of the form.
The Tribunal noted from the delegate’s decision that the applicant had not disclosed that he had applied for two visas to [another country] previously. The Tribunal asked why this was the case. The applicant replied that he didn’t think they had to. The Tribunal noted that the question was quite clear. The applicant did not respond.
The Tribunal asked about the visa applications. The applicant said the first one was in 2005 or 2006. He was asked what type of visa it was. He said a spouse visa. He had become engaged in India to a [nationality] girl and he applied to go back to [her home country] with her. The visa application was not successful He did not know why. The engagement broke down in India before she returned.
The Tribunal asked about the second application, which it understood was made from Australia. The Tribunal asked what sort of visa was applied for on this occasion. The applicant said they wanted to go on a family holiday. He couldn’t remember when it was made. The second-named applicant offered that the application was made around 2013. It was not successful. She speculated that it was because the first application had not been successful.
The Tribunal asked again why they had not disclosed the fact of making applications. The Tribunal explained that it may form the view that the applicants were not making full disclosure, especially coupled with the fact they had not disclosed their education and work histories. The Tribunal explained that it may cause it to question their credibility. The applicant said he had no idea. The second-named applicant said she thought they only had to disclose visas they actually had.
The Tribunal said it would consider that response.
The Tribunal read to the applicant the claims set out in Paragraphs 26 to 32 above. The applicant confirmed they were accurate and repeated they were his claims. The second-named applicant confirmed that neither she nor the third-named applicant had any protection claims of their own.
The Tribunal explained to the applicant that it would have a discussion with him about the DSS, including what he knew about it, when he joined it, why he joined it, what fears he had now about being a follower of DSS, and then it would discuss some DFAT country information with him and also discuss the possibilities of relocation within India.
The Tribunal asked the applicant to tell it about the DSS. He said it was a humanitarian organisation, which gave sermons about good deeds. He said the leader was Gurmeet Ram Rahim Singh who does the sermons. He said that he listens to him on YouTube. He said that DSS holds camps and humanitarian things. He has a lot of members. The Tribunal asked the applicant when DSS was founded and where it had its headquarters. He stated Haryana and thought it was founded about twenty or thirty years ago.
The applicant was asked about his membership. He said he was not a member. He had no membership card and paid no fees. He was not on any membership list.
The applicant agreed he was just a follower.
The Tribunal referred to the applicants claim that his family wanted him to leave DSS. What did this mean? How could he leave DSS if he wasn’t a member, just a follower? The applicant said his family were worried that someone could kill him. The Tribunal asked who he could be killed by. He said “people”.
The Tribunal asked the applicant whether he was aware that DSS followers could be harmed or hurt before he joined in listening to DSS sermons? Did he realise he could be threatened? He said he didn’t, that if he realised that people would threaten him, he wouldn’t have joined.
The Tribunal asked the applicant when he started following DSS. He said three years ago, in 2014. When pressed, he said he couldn’t be more specific.
The Tribunal asked the applicant why he started following DSS. The applicant said he came across Gurmeet Ram Rahim Singh on the internet, so he listened to him and liked what he said. The Tribunal pressed the applicant on how “he came across him on the internet”. Was he searching for him, had he heard something about Gurmeet Ram Rahim Singh? The applicant could not explain how he came across him. It just came to his mind, and he searched for it.
The Tribunal asked the applicant how often he listened in to the sermons. He said lots of times. He tunes in whenever “his heart” feels like listening. Asked how many times over the past three years, he said lots of times. The Tribunal asked how many, ten, twenty, a hundred or a thousand? He said he didn’t know, just countless times.
The Tribunal explained to the applicant the provisions of s.5J(6) and that in the circumstances of the applicant and second-named applicant having no success with their visa applications, that the Tribunal might wonder whether the applicant might have engaged in this conduct of following DSS to enhance his protection claims. The applicant said he didn’t think of that. The Tribunal asked the applicant whether he could understand how the Tribunal might come to this conclusion. The applicant said that he didn’t think of a protection visa in 2014.

The Tribunal asked the applicant about the threats he had been receiving. When did the threats begin – how soon after joining DSS. The applicant said they began about two years ago. The Tribunal clarified with the applicant that that meant about a year after he started following DSS. The applicant agreed this was correct.
The Tribunal asked what the threat was. He said he received a call that said he should give up Gurmeet Ram Rahim Singh as he is wrong. The Tribunal noted that this didn’t sound particularly threatening.
The applicant then stated there were more calls after this, a lot of calls, all saying the same thing.
The Tribunal asked how many calls he received over the two years. He said five to ten calls.
The Tribunal confirmed that “a lot of calls” meant five to ten calls.
The applicant confirmed there were five to ten calls.
The Tribunal asked if they all said the same thing. He said they did.
The Tribunal asked the applicant again about the threats, how and when did the threats take place. The Tribunal explained what it meant by a threat – a threat to harm him. The applicant then responded and said that many of the calls were threatening. The Tribunal asked how were they threatening. He said they threatened to kill him. The Tribunal asked the applicant what the callers specifically said. He said that they said that if he didn’t give, he would be killed. Asked how many were threatening, he said many of the calls. The Tribunal said many of the five to ten calls, and the applicant agreed.
The Tribunal asked who the callers were. The applicant said he didn’t know, as they all had no caller ID. The Tribunal asked were there any texts to him. He said no. The Tribunal asked whether the applicant thought this strange. The Tribunal noted that it thought it strange. The applicant didn’t think it strange.
The Tribunal asked the applicant why he didn’t simply change his phone. He said that he had many contacts in his phone that he didn’t want to lose. The Tribunal said that with the pressing of about three buttons, he could have saved his contacts to his SIM Card or the man in the phone shop could have done it for him. He said he hadn’t thought of that. The Tribunal asked the applicant what type of phone he had. He said an iPhone 6. The Tribunal noted that was a reasonably modern phone. It asked was it new. The applicant said he previously had an XTC phone. The Tribunal asked whether he received the calls on the XTC phone. He said he did. The Tribunal noted that he had in fact changed his phone and asked had he saved his contacts. The applicant said he still had the same number.
The Tribunal referred to the applicant’s claim that he had moved around Australia. The Tribunal asked him where he had moved. The applicant said he had moved from [one state] to [another state]. The Tribunal confirmed that was the only move he had made. The Tribunal asked why he moved. Did he think the callers knew where he lived? He said maybe they did, he didn’t know. The Tribunal asked again why he had moved to [another state]. The applicant said he moved because of the calls.
The Tribunal asked the applicant whether he could understand that the Tribunal might find that explanation implausible to the extent that he didn’t think to change his phone number because he had received five to ten calls, but he did think to pack his family up and move them from [one state] to [another state]. He reiterated that he moved because of those calls.
The Tribunal asked the applicant how he came to know that people knew he was a DSS follower. The Tribunal explained that the applicant simply listened to sermons on the internet. He wasn’t a member of DSS, his name wasn’t on a membership list anywhere and it appeared that he didn’t tell anyone what he did. So how could people know what he did?
The applicant said he told his family that he was listening to Gurmeet Ram Rahim Singh. He said his family told him not to listen. The Tribunal asked the applicant whether his family made threats to him that they would harm him. He said they did not.
The Tribunal asked how others in Australia found out about him listening to DSS, and these were people in Australia, as they were the people he was moving away from. He said he didn’t know how they found about him. The Tribunal asked him whether his family had told others. He said he didn’t know.
The Tribunal again outlined its concerns with this part of the applicant’s case. That he had received from five to ten calls from people unknown. He didn’t know who they were or where they called from. But it was enough to make him move interstate, but not to change his phone number. He couldn’t explain how people found out about him listening to someone on YouTube even though he told no one except his family in India that he was doing so. The Tribunal noted the implausibility of his story.
The Tribunal then asked the applicant about the timing of his application. It again outlined the timeline of the rejection of the second-named applicant’s [temporary] visa, noting particularly that they received notification that the Minister would not intervene in the process [in] March 2016, and that within [weeks] of receiving this, he made a Protection Visa application. The Tribunal also noted that the phone calls started two years ago. The applicant said he didn’t know that, he doesn’t think of these things.
The Tribunal again referenced what he told the delegate in the interview [in] January 2017. The Tribunal noted that he had told the delegate that he became quite worried by the calls a couple of months before the interview and that is why he made the claim. The delegate pointed out to him that he had made his visa application back in April, not just a couple of months ago. The applicant replied in the same way he had to the delegate – that he made his application because of the threats.
The Tribunal turned to the matter of country information. The Tribunal discussed with the applicant a summary of the information contained in the DFAT Report set out below.
Dera Sacha Sauda
The Dera Sacha Sauda (DSS) organisation is a non-profit social welfare and spiritual organisation, founded in 1948 and headquartered in Haryana. The DSS reportedly has 40 to 50 million followers worldwide (including in Australia). The DSS cites its key principles as: secularism; equality; anti-materialism; truth and faith; meditation; strict individual discipline; strict social discipline; and hard work. The organisation has undertaken a number of environmental and cleanliness campaigns throughout India, and has also been active in supporting disaster relief. However, the DSS sparked controversy in February 2015 when reports emerged that 400 members of the group had self-castrated since 2000 after being told by the group’s leader, Gurmeet Ram Rahim Singh, that doing so would enable them to meet God directly. While alleged threats against the victims had prevented them from speaking out against Ram Rahim previously, an investigation into the affair is now underway, headed by India’s Central Bureau of Investigation.
A dera is an ashram or temple that conducts social and educational activities.[1] India has long been home to many deras. However, in recent decades, thousands of new deras have been established in Punjab, attracting both Sikhs and non-Sikhs in large numbers; in 2007 it was estimated that there were more than 9,000 deras in the 12,000 villages of Punjab.[2]
[1] See ‘Dangerous tensions in Punjab’ 2007, The Economist, 5 July < cfm?story_id=9444533> Accessed 1 August 2007
[2] Ram, R 2007, ‘Social Exclusion, Resistance and Deras: Exploring the Myth of Casteless Sikh Society in Punjab’, Economic and Political Weekly, Vol. 42, No.40, JSTOR, pp.4066-4067
DSS is one of the most popular ashrams in India with its headquarters located near the town of Sirsa, Haryana.[3]
[3] Sharma, N S 2012, ‘Controversy over fake affidavit submitted by police about case against Dera Sach Sauda head’, Punjab Newsline, 6 February <
DSS is a spiritual and social movement founded in 1948 by Shehenshahji Mastana, a Sikh originally from Balochistan. According to Himal South Asian, Mastana believed that Sikhism had strayed by allowing caste to re-establish itself within the religion. Mastana established the ashram “with an eye to social reform and spiritual purification – among the Sikhs in particular, but also others in general”.[4]
[4] Alig, A & Anwar, A 2007, ‘Embers of a Sikh fire’, Himal South Asian, October <
The DSS website states that it has 44 ashrams across India and claims to have over forty million followers worldwide.[5] The Economist reported in 2007 that the DSS had “some 400,000 followers, both Sikhs and members of the Hindu majority, mainly among the poor, illiterate, and lower castes”.[6] In 2007, BBC News reported that the DSS counted Sikhs, Hindus, Muslims and Christians among its followers, noting that “[m]ost of its followers are Dalits”.[7]
[5] Dera Sacha Sauda n.d., Dera Sacha Sauda Ashrams Across India < Accessed 28 July 2011 <Attachment>; Dera Sacha Sauda 2010, About Us <
[6] ‘Dangerous tensions in Punjab’ 2007, The Economist, 5 July < cfm?story_id=9444533>
[7] ‘PM urges calm over Sikh protests’ 2007, BBC News, 18 May <>
In July 2013, Punjab News Line reported that the annual income of DSS doubled in two years, and is now estimated to be approximately one billion rupees per annum. As a spiritual organisation and charity, the DSS is exempt from paying tax on this income.[8]
[8] ‘Dera Sirsa’s annual turnover doubles in two yrs, reaches Rs 60 cr’ 2013, Punjab News Line, 22 July, FACTIVA
The DSS website also outlines many of the core values and beliefs of the movement, such as “humanitarianism”, “selfless services”, rejection of dowries, “social evolution”, “eradicating social evils”, the provision of education to all, and the promotion of efficient organic farming.[9] The DSS claims to routinely perform “around 70 social welfare activities”. Some of the programs listed on the DSS website include: the operation of a home for leprosy patients; the provision of wheelchairs to the disabled; the provision of financial aid to poor patients; the operation of a blood bank; the provision of financial assistance to poor students; and the provision of free legal aid. Other ‘welfare activities’ include encouraging people to shun homosexuality; the ‘emancipation’ of prostitutes; the “promotion of vegetarianism”; and “helping young divorcee women getting married again”.[10] In July 2013, DSS controversially declared that thousands of its members were ready to marry widows who lost their husbands in floods in Uttarakhand the previous month.[11]
[9] Dera Sacha Sauda 2010, About Us < Dera Sacha Sauda n.d., 70 Humanitarian Activities <
[11] ‘Be a father or human figure to Uttarakhand widows, not a husband: Priests to Dera Sacha Sauda’ 2013, Dailybhaskar.com, 13 July, FACTIVA
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).[12]
[12] Garg, B 2012, ‘Political leaders court Dera on poll eve’, The Tribune, 29 January <
Dalits are estimated to constitute approximately 70 per cent of DSS followers. Unlike in Uttar Pradesh, the Dalit-dominated Bahujan Samaj Party (BSP) has not enjoyed political significance, let alone power, in Punjab.[13] The Hindu reported in 2009 that the INC and SAD – Badal competed for Dera support ahead of state assembly elections on the grounds that dera followers “have a reputation of voting as a block”.[14] In 2009, The Hindu reported:
Dera (sect) politics, especially after the 2007 fiasco, has become very important for political parties in the region that accounts for five constituencies out of the 13 in the State. It all started when the Dera followers were told to vote for the Congress in the last Assembly election in 2007 helping the party defeat the Shiromani Akali Dal (Badal) in the Malwa region that had traditionally supported the Akalis.
In the last few months, to prevent electoral reverses, the SAD (Badal) government is said to be softening its stand on the Dera by letting it re-open the branches in Punjab that were shut after the violence. But the Dera, according to some reports, is sceptical about the SAD. Congress leaders, wary of the SAD’s conciliatory moves, have been making frequent visits to Baba’s durbar.[15]
[13] Baixas, L. 2007, ‘The Dera Sacha Sauda Controversy and Beyond’, Economic and Political Weekly, October 6, Vol. 42, No. 40, p. 4064
[14] Mahaprashasta, A 2009, ‘Akalis, Congress woo Dera Sacha Sauda’, The Hindu, 19 April < Accessed 10 February 2010 <Attachment>;‘Dalit votes to decide ruling party of Punjab’ 2012, India Today, 16 January < Accessed 16 August 2012 <Attachment>
[15] Mahaprashasta, A 2009, ‘Akalis, Congress woo Dera Sacha Sauda’, The Hindu, 19 April <
Some seat-rich regions of Punjab are dominated by Dalits, such as Malwa, home to 69 state assembly seats. According to The Times of India, DSS delivered these seats to Congress in the 2012 elections.[16] According to The Tribune, all major parties courted the DSS on the eve of the 2012 elections; “[a]s the Dera’s support is vital for every political party, so most candidates in the fray in these constituencies were uninhibited in visiting the dera and seeking its support”.[17]
[16] Parashar, S 2012, ‘Punjab polls: Dalit self-pride holds key in fertile Doaba’, The Times of India, 26 January <
[17] Garg, B 2012, ‘Political leaders court Dera on poll eve’, The Tribune, 29 January <
According to Gobind Thukral in The Hindustan Times,[18] Gurmeet Ram Raheem Singh once received the assistance of SAD-Badal leader and Punjab Chief Minister Parkash Singh Badal. However, the guru and the chief minister fell out after Gurmeet Ram Raheem Singh publicly supported the INC in 2007, humiliating Badal and causing many Akalis to “seek revenge” by attempting to have “the Dera chief replaced by a more pliable person”. The result was significant violence. However, writes Thukral, the BJP rebuked its SAD Badal coalition partner, “threatened to revise their sharing of power with the Akalis”, and refused to participate in bandhs (strikes) protesting the DSS.[19] However, by 2009, the Akalis were reportedly seeking to reconcile with the DSS and Gurmeet Ram Raheem Singh, prompting suspicions from INC leaders.[20]
[18] The Hindustan Times is part of a large Indian media organisation HT Media, and is its daily English-language flagship newspaper. It was established in 1924. The Hindustan is the Hindi version and according to information on the HT website this is the second-largest circulating newspaper in India.
[19] Thukral, G. 2007, ‘Keep the faith’, The Hindustan Times, 18 June < Baixas, L. 2007, ‘The Dera Sacha Sauda Controversy and Beyond’, Economic and Political Weekly, October 6, Vol. 42, No. 40, p. 4063
[20] Mahaprashasta, A. 2009, ‘Akalis, Congress woo Dera Sacha Sauda’, The Hindu, 19 April –
The Tribunal noted that it has had access to country information which would suggest that the police in Punjab are taking action to protect DSS followers. The Tribunal discussed the following country information with the applicant at the hearing:
The leadership of DSS are courted by the major political parties of Punjab. Consequently, 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.[21] Notable Sikh leaders have been arrested in both Punjab and Haryana for making inflammatory speeches against the DSS:
·     In July 2013, seven Sikhs were sentenced to seven years gaol for their role in anti-DSS violence in 2008.[22]
·     In November 2012, Haryana police deployed paramilitary forces in the town of Sirsa, home of the DSS headquarters, in order to prevent further violence between DSS activists and Sikh opponents.[23]
·     In July 2011, authorities issued a warrant for the arrest of Balwant Singh Nandgarh, a Sikh religious leader, after he failed to appear in a judicial court in Fatehabad district of Haryana. The case was registered following a complaint by a DSS supporter that Nandgarh had made “a fiery speech at a religious gathering”.[24]
·     According to a March 2011 article in The Times of India, police were “deployed in strength” in Moga to prevent clashes between Sikhs and Dera members who had gathered to attend a meeting. Members of DSS and Ek Noor Khalsa Fauz reportedly armed themselves with swords.[25] It was claimed in a separate report that police had provided “heavy protection” for the DSS meeting.[26]
·     A January 2011 article in Punjab Newsline reported that police arrested Sant Baljit Singh Daduwal, a Sikh preacher, for inflammatory remarks against Gurmeet Ram Rahim Singh.[27]
·     Police arrested and charged suspected Sikh extremists who they believe were planning to assassinate Gurmeet Ram Rahim Singh. However, a court dismissed the charges in December 2011.[28] Gurmeet Ram Rahim Singh reportedly receives high-level state protection from the Haryana government.[29]
[21] 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 <
[22] ‘Dera Sirsa violence: 7 Sikhs get seven years in jail’ 2013, Punjab Newsline, 30 July < ‘Dera Sacha Sauda row: Paramilitary deployed, Sirsa sealed after clashes’ 2012, India Today, 25 November <
[24] ‘Nandgarh not to appear in Haryana court’ 2011, The Hindustan Times, 23 July
[25] ‘Tension in village as Sikhs, dera men clash’ 2011, The Times of India, 7 March <
[26] ‘Followers hold congregation amid protest’ 2011, The Times of India, 7 March <
[27] ‘Curfew continued in Punjab town after clashes between police and Sikhs’ 201,1 Punjab Newsline, 3 January < ‘Four acquitted on charges of plotting to kill Dera chief’ 2011, New Kerala.com, 7 December <
[29] ‘Day-to-day hearing in rape case against Dera chief from today’ 2011, Daily Baskar, 29 September < type="1">
Country information confirms 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”.[30]
[30] Panthic.org 2011, Curfew against mansa Sikhs as Badel Government continues to promote DSS cult, 3 January <>
The Tribunal questioned the applicant about his political involvement in India. The applicant said he had no involvement in politics in India.
The Tribunal noted that according to country information clashes did occur between DSS followers and orthodox Sikh supporters and members of the Akali Dali party. The Tribunal noted however that the clashes occurred in 2007, June 2008 and November 2012. The Tribunal has had regard to country information and was unable to locate any sources indicating that ordinary followers of the DSS have recently been targeted for harm by the dera’s opponents. Country information also confirms no sources were located indicating that people have been harmed while visiting dera property or for utilising services provided by DSS. Sources do indicate that DSS activist meetings and rallies were the subject of protests and some violence in the past, particularly in 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.[31]
[31] DIBP Issues Paper India: Sikhism, Caste and Deras September 2013 Review date: March 2014 paragraph 3.1.4
The Tribunal asked the applicant did he have a comment on the country information. He said he did not. He said he had his story.
Relocation
The Department of Foreign Affairs and Trade (DFAT) states that Sections 19(1)(d) and (e) of the Constitution guarantee citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interests of the sovereignty and integrity of India and the security of the State. The condition of ‘reasonable restrictions’ is left to the interpretation of government and courts. It gives room for laws and regulations that can restrict movement (for example, in places where there is unrest or in some border areas) and residence (outsiders cannot buy land in Jammu and Kashmir or in Uttarakhand). DFAT also states that there is a very high rate of internal mobility within India. Migration data from the 2011 Census has been collected, but not yet released. The 2001 Census stated that there were around 307 million internal migrants in India, defining as a migrant anyone who lived in a place different to their place of birth or place of last residence. This figure represents approximately 30 per cent of India’s total population.[32] Only a very small number of internal migrants – 0.5 per cent – reported in the 2001 Census that their reason for migrating within India was because of a ‘social or political problem’. This definition includes those who moved due to riots, terrorism, political problems or the prevailing law and order situation. However, this still implies that as of 2001, more than 1.5 million people had relocated to escape social or political problems.
[32] Department of Foreign Affairs and Trade, DFAT Country Information Report – India, 15 July 2015, p. 21.
USDOS states that Indian law provides for freedom of movement within the country, and the government generally respects this in practice.[33] The UK Home Office reported that background checks by the Indian police are not conducted where Indian nationals relocate within India, as the authorities have neither the resources nor the language abilities to monitor internal relocation. While there is not currently a national registration system for Indian citizens, several proposals and versions of identity card are being used in various states for various purposes.[34]
[33] US Department of State 2013, Country Reports on Human Rights Practices for 2012 – India, 19 April, Section II
[34] UK Home Office 2010, Country of Origin Information Report, 21 September, p. 95.
The IRBC corresponded with an official at the Canadian High Commission in India, who said that “police share information about ‘law enforcement’ but indicated that ‘there is limited sharing of information between police forces’ and police are not required to ‘report the movements of persons of interest to other offices’”.[35] In relation to tracing a person through registration, India reportedly does not have central registries for housing, rentals, schools, etc. If a person wishes to transfer voter registration to another location, however, the elections committee requires proof of address.[36]
[35] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May Accessed November 2016.
[36] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 Accessed November 2016
The previously mentioned official from the Canadian High Commission in India indicated to the IRBC that as there is no central police database and records are kept in local police stations in India, “this makes it ‘extremely difficult, if not impossible’ to locate an individual as a result of a security check, unless there is a match between a local police station and the subject of a security check”.[37] It was reported in April 2011 that an applicant was not required to go to the police station to obtain identity documents such as a driver’s licences, voter cards, or ration cards.[38] The IRBC also reported on 10 May 2016 that according to information posted on the website of the Kerala Police Department, police stations across India are "virtually unconnected islands in the case of Crime & Criminal Tracking. There is no system of effective data storage … sharing and accessing data," and there is "no single system" by which a police unit can "talk to another directly".[39]
[37] Immigration and Refugee Board of Canada 2012, India: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May Accessed November 2016.
[38] Immigration and Refugee Board of Canada 2011, India: Identity documents required to obtain employment and housing in Delhi, Mumbai and Chandigarh; whether individuals must present themselves apt police stations to obtain identity documents; issuance procedures for ration cards, birth certificates, driver’s licenses, and voter cards, IND103725.E, 27 April - Accessed November 2016
[39] Immigration and Refugee Board of Canada 2016, India: Communication between police offices across the country, including the use of POLNET; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and surveillance technology, 10 May 2016, - Accessed November 2016.
DFAT also states that it is not aware of any credible reports of mistreatment of returnees by Indian authorities, including failed asylum seekers. India does not have a centralised registration system in place which would enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories within the country. A February 2015 report by the UK Home Office said that the possibility of the police, or any person or body being able to locate, at the behest of an individual’s family, a person who had fled to another state or territory in India, was remote.[40]
[40] Department of Foreign Affairs and Trade, DFAT Country Information Report – India, 15 July 2015, p. 22.
India has some 1.2 billion people in some 53 million urban agglomerations in India, and the largest 8 cities have between 4 and 12 million people each.[41][42][43]
[41] – Accessed November 2016
Hindi is the majority language in the following northern states: Himachal Pradesh, Haryana, Delhi, Uttaranchal, Uttar Pradesh, Rajasthan, Madhya Pradesh, Bihar, Jharkhand and Chhattisgarh. Hindi is the official language of eight of the nine states listed above.[44] Hindi is also spoken in Gujarat,[45] and is the primary tongue of approximately 30 per cent of the Indian population.[46] According to the Encyclopaedia Britannica Online, Hindi is spoken as a first language by approximately 425 million people across India, and as the second language by an addition 120 million people. Punjabi is spoken in Chandigarh, Delhi, Haryana and Punjab. Punjabi is one of the prominent languages of India with about 33 million speakers.[47]
[44] University of Illinois at Urbana-Champaign – Linguistics Department (n.d.), A Brief Profile of the Hindi Language Accessed November 2016.
[45] Official Gujarat State Portal, Accessed November 2016.
[46] UK Home Office, Country of Origin Information Report – India, p. 10. Accessed November 2016.
[47] >
The 2001 census also recorded significant Sikh populations in Haryana, Rajasthan, Uttar Pradesh, Delhi, Chandigarh, Jammu and Kashmir, and Himachal Pradesh.[48] A UK Home Office operational guidance note indicates that “Punjabi Sikhs are able to relocate to another part of India and there are Sikh communities all over India. Citizens are not required to register their faith in India and Sikhs are able to practise their religion without restriction in every state of India.”[49] Information in a 2006 Immigration and Refugee Board of Canada report indicates that the majority of Sikhs in India reside in Punjab state, but there are Sikhs located in every state in India.[50] In relation to employment, the 2006 IRBC report indicates that:
Upon relocation to an area in India outside of Punjab state, several sources commented Sikhs would have indiscriminate access to employment[51]
[48] Office of the Registrar General & Census 2001, Population by Religious Communities, Census India website < Accessed 23 February 2012; Singh Bajwa, S 2006, ‘Colossal Disparity in Population: Part I’, Sikh Review, January < Accessed 15 August 2012 .
[49] UK Home Office 2012, Operational Guidance Note – India, June, p. 9 < Accessed 27 June 2012
[50] Immigration and Refugee Board of Canada 2006, India: Ability of Sikhs to relocate within India; issues to be considered when relocating; safety concerns; treatment by authorities (March 2005 - December 2005), IND100771.EX, 18 January < Accessed 4 October 2006
[51] Immigration and Refugee Board of Canada 2006, India: Ability of Sikhs to relocate within India; issues to be considered when relocating; safety concerns; treatment by authorities (March 2005 - December 2005), IND100771.EX, 18 January < Accessed 4 October 2006
The UK Home Office also outlined that according to the 2001 census, Hindus constitute 80.5 per cent of the population, Muslims 13.4 per cent, Christians 2.3 per cent, and Sikhs 1.9 per cent.[52]
[52] UK Home Office, Country of Origin Information Report – India, p. 90. Accessed November 2016.
The Times of India reported on 23 June 2013 that the overall Indian unemployment rate was 3%.[53] In April 2013, the World Bank issued a report in which it expected economic growth in India to accelerate to 6.7% in 2015, and concluded that long-term prospects remain bright.[54] A Trading Economics Report expects India’s unemployment rate to be 4.8% in December 2016 trending to 4.6% I 2020.[55]
[53] Accessed November 2016.
[54] Accessed 2016
[55] >
In practice, options for internal relocation can be limited by a range of factors. These include language barriers; a lack of documentation; lack of familial or community networks; lack of financial resources and employment opportunities; and discrimination based on ethnicity, religion, caste or gender.
Language barriers can be among the most significant obstacles faced by those seeking to relocate within India. There are therefore more internal relocation options for India’s sizable bilingual and multi-lingual population. According to the 2001 census, around 25 per cent of the population reported being able to speak more than one language and around nine per cent more than two languages.
Without proof of identity and local residence, internal migrants can be excluded from public services and social security programs. As a result, they often face barriers in accessing subsidised food, housing and banking services until they can establish identity and local residence. Ethnic, religious or caste identity may provide a basis of anti-migrant sentiment and a limiting factor for internal relocation. Single women, women with children or victims of familial crime may find relocating within India difficult due to the need to provide details of their husband’s or father’s name in order to access government services and accommodation.
Despite these difficulties, millions of Indians successfully relocate within India either temporarily or permanently every year, and it is possible to obtain work in the large informal sector without papers. In general, DFAT assesses that there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence.
The Tribunal noted that the applicant was a strong bodied and fit man, who was educated and skilled and who spoke three languages, including Hindi. The Tribunal pointed out that country information suggested it would not be difficult or unreasonable for the applicant to relocate within other parts of India if he had concerns about his moving back to Punjab. Sikh communities existed in every state and employment prospects were positive. It restated country information that said that the possibility of the police, or any person or body being able to locate, at the behest of an individual or individual’s family, a person who had fled to another state or territory in India, was remote.
The applicant said he had nothing to say about relocation.
The Tribunal invited the second-named applicant to comment on the claims. She said she had nothing to say.
The Tribunal asked the applicant again if he had closing submissions. He concluded by saying he was scared because of the calls.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
Although the Tribunal found the applicant’s evidence about his knowledge and participation in the DSS vague and lacking in detail the Tribunal accepts the applicant may be an ordinary follower of the DSS in Australia. It accepts that he has never attended a DSS ashram in India. The Tribunal finds the applicant is not a political activist or has been involved in DSS protests. The Tribunal finds the applicant’s involvement in the DSS is limited to listening to Gurmeet Ram Rahim Singh on YouTube in Australia.
The Tribunal finds that as the extent of the applicant’s involvement in the DSS is limited to listening to Gurmeet Ram Rahim Singh on YouTube in Australia, there would be no knowledge of his YouTube activities in India and he will therefore be of no interest to any authorities or religious extremists in India.
The Tribunal does not accept that the applicant has been threatened in any way by reason of his listening to Gurmeet Ram Rahim Singh on YouTube in Australia. The Tribunal does not accept as plausible the applicant’s explanation of what constituted “lots of calls”, or that 5 to 10 calls constituted lots of calls, that people could have found out about his YouTube viewing activities when he hadn’t told anyone about them and couldn’t explain how people could have found out about him. The applicant was inconsistent in his recall of what the callers actually said to him, and the Tribunal formed the view that he only recalled his protection claim about any threat being made to him when the Tribunal specifically asked him whether any threat had been made.

The Tribunal does not accept the applicant’s explanation as to why he has made the claims he did when he did. The applicant said that he made his claims as a consequence of the fear he felt from the calls made more recently, being a couple of months before his interview with the delegate, which was in fact some months after he had made his visa application.
The Tribunal accepts that the applicant made his claims [weeks] after he was notified of the final rejection of Ministerial intervention to his wife’s appeal against the rejection of her student visa. The application for a protection visa was his last resort. The applicant could offer no explanation as to why his protection claims weren’t made some two years earlier when the alleged threatening calls were received.
The Tribunal does not accept that the applicant moved himself and his family [between states] because of his fear of the alleged calls. The Tribunal does not accept as plausible the applicant’s explanation that he couldn’t change his phone (because he had many contacts), when in fact he actually had changed his phone from an XTC to iPhone brand, to avoid the calls.
The Tribunal does not accept that the applicant has suffered any harm as a consequence of him listening to Gurmeet Ram Rahim Singh on YouTube in Australia and is not satisfied that there is a real chance that the applicant as an ordinary follower of the DSS will face serious harm if he returns to India in the reasonably foreseeable future.
The Tribunal finds that the applicant’s fear of persecution in India because of his following DSS is not well-founded.
For the sake of completeness, the Tribunal further finds that the authorities have taken action against orthodox Sikh leaders and anti-DSS protestors in the past and the Tribunal is not satisfied the applicant, even if he is an ordinary DSS supporter, will be denied state protection if he returns to India in the reasonably foreseeable future.
Furthermore, and again for the sake of completeness, considering the independent country information and his individual circumstances as outlined in paragraph 110 above, the Tribunal believes that in any event that it would be possible for the applicant to relocate within India if he had concerns about being returned to Punjab.
Having considered all of the evidence, 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 India, that there is a real risk that he will suffer significant harm. Accordingly, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life; the death penalty will be carried out on the applicant; or the applicant will be subjected to cruel or inhuman treatment or punishment; or the applicant will be subjected to degrading treatment or punishment.
As indicated above, the second-named and third-named applicants have not been assessed against the refugee criterion in the Act or the complementary protection criteria. The second- named and third-named applicants’ application was made on the basis of their membership of the family unit. The second-named and third-named applicants, whilst they did attend the hearing, no claims were made on their behalf. Accordingly, the Tribunal finds that the second-named and third-named applicants do not have a well-founded fear of persecution as required by s.5J of the Act if they return to India now or in the reasonably foreseeable future. The Tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second-named or third-named applicants being removed from Australia to India, that there is a real risk that they will suffer significant harm.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that that are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant’s wife and child are members of the same family unit as the applicant for the purposes of s.36(2)(b)(i) or s.36(2)(c)(i). As such, the fate of their application depends on the outcome of the applicant’s application. It follows that the other applicants will not be entitled to protection visas.
The Tribunal affirms the decision not to grant the applicants protection visas.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Michael Hawkins
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.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[42] - Accessed November 2016

[43] - accessed November 2016.

[2017] AATA 2222

11 August 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal