1702283 (Refugee)

1702283 (Refugee) [2020] AATA 5965 (18 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702283
COUNTRY OF REFERENCE:                   India
MEMBER:Catherine Carney-Orsborn
DATE:18 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 December 2020 at 4:46pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – member or supporter of separatist party – organised rallies and spoke against government – arrest, beating and threats, and harassment of family – fear of harm from government, military or police – credibility – voluntary return with no harm – delay in applying for protection – applied after holding student visas and application for skilled visa refused – inconsistent evidence and little documentary evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 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 16 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, first arrived in Australia on 6 August 2007 as the holder of a TU-572 student visa. The applicant was granted a further student visa on 5 September 2007. The applicant applied for a VC 485 temporary graduate visa on 17 September 2009, which was granted on 17 November 2010. The applicant departed Australia on 27 March 2011 and returned on 30 April 2011. The applicant applied for a VB-885 skilled visa, which was refused on 15 March 2014. The applicant applied to the Tribunal for review of the decision, which affirmed the decision on 4 June 2014. The applicant applied for ministerial intervention on 9 July 2014, which was rejected on 24 March 2015. The applicant was granted a bridging visa E on departure grounds on 8 May 2015. The visa ceased on 6 June 2015.
The applicant subsequently applied to the Department of Home Affairs (the Department) for a Protection visa on 24 June 2016. On 16 January 2017, the delegate refused to grant the visa on the basis that the evidence before the applicant was insufficient to satisfy the delegate that the applicant was a member of the Babbar Khalsa Party or a supporter of a Khalistan separatist movement. The applicant applied to the Tribunal for review of the decision on 9 February 2017.
The issue that arises on review is whether the applicant is owed Australia’s protection under either the refugee criterion or the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations; because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The Department file contains the application forms, a written statement setting out the applicant’s claims for protection, a copy of the applicant’s passport, a marriage certificate for the applicant between himself and [Ms A] dated [April] 2015, an Indian police check for the applicant confirming no criminal charges dated 12 August 2010, a letter from the applicant’s former representative requesting ministerial intervention in regards to his VB 858 visa application dated 8 July 2014, and a copy of the delegate’s decision record.
The Department file contains a s.438 non-disclosure certificate in regard to folios 70 – 75 of the Department file. The basis for the certificate is that the folios are internal working documents. The documents relate to interview notes for bridging visas during the applicant’s request for ministerial intervention. The Tribunal discussed the non-disclosure certificate with the applicant at the hearing. The Tribunal finds that the non-disclosure certificate is not valid. It contains general information about the applicant’s migration history which is known to the applicant and set out in his application for protection.
The applicant claims that he will be persecuted by the Indian authorities due to his membership and support of Babbar Khalsa Party and support of Khalistan independence.
The following information is provided by the applicant in his application forms and accompanying written statement.
The applicant was born on [Date] in [Punjab], India. The applicant is a Sikh of Asian ethnicity, who speaks, reads, and writes Punjabi, Hindi, and English. The applicant married [in] April 2015 and separated [in] May 2015. The applicant’s mother, father, brother, and sister all reside in India. The applicant states that he returned to India for a holiday from [March] 2011 until [April] 2011.
The applicant completed high school [in] Punjab from [date] until [date]. The applicant then studied a [Certificate] in [Subject] at [an Institution] from June 2007 until May 2008. The applicant then completed a Diploma of [Subject] at the [Institution] from August 2007 until November 2008. The applicant then completed an Advanced Diploma of [Subject] at the [Institution] from November 2008 until June 2009.
The applicant worked as a [worker] for [Employer] from August 2011 until March 2014. The applicant has been unemployed since.
The applicant claims that his family are strong supporters of the Khalistan movement. The applicant is a Sikh and has always been a good friend with Sikhs. As a student in India, the applicant was involved in student activities as a member of the Babbar Khalsa Party and affiliated groups who opposed the Indian government, due to Operation Blue Star in Amritsar,1984. The applicant left India because of these activities.
The applicant claims that the Hindu fundamentalist party, Bharatiya Janata Party (BJP) now rule India. The applicant further claims that the Indian government is looking for members or supporters of Babbar Khalsa, and Indian military forces are killing the members and supporters.
The applicant claims his family were targeted by members of Rashtriya Swayamsevak Sangh (RSS) during the last elections in India, on the grounds that the applicant was a supporter of the Khalistan movement to establish a separate state within Punjab. The applicant was arrested by the police, beaten, and bashed as a result of protesting acts of genocide against Sikh youths and supporters, perpetrated by the Indian party. The applicant also claims that BJP supporters burnt down his house. The applicant’s relatives died with the attention of officials but were not given protection.
The applicant claims that false charges were brought against him and his family by the Indian police and military. The applicant continued his activities of organising rallies and speaking out against the Indian regime, resulting in further assaults by police, as well as death threats and killings of Sikhs and their supporters.
The applicant’s family was harassed, and he went into hiding prior to arriving in Australia on a student visa.
COUNTRY INFORMATION
The Department of Foreign Affairs and Trade (DFAT) Country Information Report – India, dated 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.[1]
[1] DFAT, Country Information Report – India, 10 December 2020, p. 33, paras [3.62] – [3.68].
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.[2]
…
The constitution protects the rights to freedom of speech, and to form associations and unions. This right is subject to ‘reasonable’ restrictions in the interests of public order, decency or morality. Public demonstrations require advance notice and permission of authorities and frequently occur. Intelligence agencies regularly monitor the activities of civil society actors and individuals engaged in particular areas of sensitivity. According to some commentators, the right to freedom of speech is limited in practice, with government control tightening.
In January 2020, researcher and student Sharjeel Iman, was arrested and charged with sedition, following a protest speech in which he called for a road blockade to cut off the state of Assam from the rest of country. This followed protests over the government’s December 2019 introduction of the Citizenship Amendment Act, 2019. Following Iman’s speech, some BJP leaders reportedly labelled him a ‘secessionist’. Critics are concerned the government is using the colonial-era sedition law, under which Iman was arrested, to silence dissenters, claiming their acts are a threat to national security.
Media reports citing official data claim 332 people were arrested under the sedition law between 2016 and 2018, with seven convicted (suggesting police have struggled to gather evidence against the accused). Researchers claim the use of the sedition law has increased under the current government. DFAT is unable to verify these claims.
In 2019, Indian police filed a sedition case (later dropped) against 49 people who had expressed concern in an open letter to Prime Minister Modi over hate crimes targeting minority communities. Other recent high profile cases include sedition charges against political activist Shehla Rashid for tweets alleging the Indian army’s use of torture in Kashmir; and sedition charges (later dropped) against a teacher and a parent for involvement in a school play voicing opposition to the citizenship law.
There are few publicly available statistics on election incidents. Reports of violence around polling stations do occur during electoral periods. For example, in the 2019 general election campaign, clashes between party supporters, protests and other violent incidents were reported in 11 (of then-29) states. Seven deaths were recorded of voters, party workers and elections officials, including by security forces, with multiple others injured. The Electoral Commission of India (ECI) ordered repolling in around 270 (of 1 million) polling stations due to allegations the booths had been ‘captured’ and voters intimidated bysupporters of one or another party. The ECI also banned campaigning in West Bengal a day early after a major clash between the supporters of the BJP and the governing All India Trinamool Congress.
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.[3]
[2] DFAT, Country Information Report – India, 10 December 2020, p. 35, paras [3.80] – [3.83].
[3] DFAT, Country Information Report – India, 10 December 2020, pp.36 – 37, paras [3.86] – [3.91].

In regards to the Indian police, the DFAT report notes the following:
India’s constitution devolves responsibilities for police and public order to the states. Each state and union territory maintains its own police force, and two-thirds of this cohort hold junior ranks. The national corps within the Indian Police Service (IPS) are selected by competitive exams, hold senior ranking positions and enjoy other benefits, including housing and transport. According to a 2018 survey across 22 states, the Centre for the Study of Developing Societies found less than 25 per cent of Indians trust the police highly (compared to 54 per cent for the army). The World Justice Project’s 2020 Rule of Law Index ranked India 114 out of 128 countries with respect to order and security (see also Corruption). This measure considered issues such as crime, civil conflict and use of violence to redress personal grievances.
Centralised Indian Police Service
Article 312 of the constitution establishes a centralised IPS. The IPS is organised into state cadres to provide senior-level leadership to state police forces and to centralised forces. The MHA is responsible for IPS officers and policy decisions, including structure, training, allocation, confirmation, pay, allowances and disciplinary matters. State and central governments review IPS budget allocations every five years. As at March 2019, there were 4,982 IPS officers spread across 26 state cadres, with the states of Uttar Pradesh, West Bengal and Maharashtra having the most IPS officers, and Uttarakhand, Tripura and Sikkim having the least. The MHA is also responsible for a range central police functions (see State Protection).
State Police Services
According to The Economist, India’s 1.9 million police officers ‘do not enjoy a good reputation’. However, local sources report police effectiveness is hampered by lack of resourcing and infrastructure. Police budgets, on average, account for 3-5 per cent of state expenditure. The Status of Policing in India Report 2019 (which used official data drawn from the NCRB and the Bureau of Police Research and Development to assess police capacity and adequacy) found inadequate infrastructure (physical, technological, human), resourcing and training compromised police operations. According to the report, approximately 240 police stations across India have no access to vehicles; 214 have no access to telephones; 70 have no access to wireless connections; and 24 have no access to either telephone or wireless connections. On average, police stations in India have six computers per station, but states like Assam and Bihar have an average of less than one computer per station.
Lack of ‘boots on the ground’ is another key capacity problem. Police in India reportedly work at 77 per cent of their sanctioned personnel capacity. This equates to around 1.2 ordinary police officers per 1,000 people, about half the level recommended by the UN. Long working days and unpaid overtime are common complaints.
Representation of SCs, STs, OBCs and women in the police forces is poor, with large vacancies in these reserved positions. SCs, STs, OBCs and women are less likely to be recruited/posted at officer-level ranks than are general police personnel. The India Justice Report 2019 found women account for 7 per cent of police personnel.
To safeguard police operational autonomy from political interference, the Supreme Court directed states to introduce legal amendments to ensure police officers be guaranteed a minimum tenure of two years to function efficiently. However, in practice, over a quarter of police reportedly consider pressure from politicians is the biggest hindrance in crime investigation. Undermining safeguards, premature transfers of personnel are higher during election years, with the states of Uttar Pradesh and Haryana having the highest transfer rates. Premature transfers are also a common consequence of non-compliance with political pressure. The Economist reports lack of ‘man-power’ and ‘meddling politicians’, were in the top three problems facing police officers in India.[4]
[4] DFAT, Country Information Report – India, 10 December 2020, p. 60, paras [5.4] – [5.9].
THE HEARING
On 2 November 2020, the Tribunal invited the applicant to a hearing to be held on 1 December 2020. The invitation provided detailed information about the hearing and requested the applicant to provide any information on which he wanted to rely seven days before the hearing. The invitation asked the applicant to complete the response to hearing document and return it to Tribunal. The letter indicated that an adjournment would only be granted for good reasons and that the Tribunal member would consider any reasons provided. The letter further stated that if you are not informed that an adjournment has been granted then assume the hearing is proceeding.
No documents were provided or a response to hearing invitation.
The day before the hearing, 30 November 2020, the applicant sent an email asking for a postponement as his father had passed away and he was stressed.
The Tribunal responded to that email on 30 November 2020 as follows
On 2 November 2020 we sent a letter inviting you to attend a hearing on 1 December 2020 to give evidence and present arguments relating to the issues arising in your case. On 30 November 2020 we received a request that the hearing be postponed.
The Member has requested that you provide a copy of your father’s death certificate. The Member will conduct the hearing at the scheduled date and time as a teleconference. You may then discuss your request for postponement at the hearing, and the Member can then make a decision as to whether to grant the postponement or not.
The hearing will therefore proceed as set out below. Please note that all details about the hearing, as set out in the hearing invitation letter dated 2 November 2020 still apply, with the exception that the hearing will be held by teleconference. Please ensure that you are available at the scheduled time, and the Tribunal will contact you on your phone number.
The applicant appeared before the Tribunal to give evidence and present arguments. A summary of the evidence is as follows.
The Tribunal explained the purpose of the hearing and explained that it was the applicant’s opportunity to provide his claims, present arguments and evidence to the Tribunal. The Tribunal asked the applicant to be as detailed and as honest as possible.
The Tribunal then discussed the non-disclosure certificate and went through the documents referred to in the non-disclosure documents. The Tribunal indicated that the documents related to the applicant’s request for a bridging visa in 2015 However, that information appeared to be information which was already before the Tribunal. and was in the protection application and documents the applicant had already provided. The Tribunal explained that the Tribunal did not consider it to be a valid certificate and there was no information which was unknown to the applicant. The applicant indicated he understood and made no comment on the certificate.
The Tribunal then asked the applicant why he had asked for a postponement of the hearing. He stated that his father had recently passed away and his father had all the documents which would help him with his claim. The Tribunal said the application for protection was made in 2016 and asked why the documents had not previously been provided. The applicant continued to state that his father had the documents, his mother was suffering, and at this time could not produce the documents. The Tribunal asked the applicant if he was seeking further time after the hearing to provide the documents to support his claims. He responded that he was.
The Tribunal indicated it would provide him with further time after the hearing to provide the documents. He responded with words to the effect that he would be satisfied with more time after the hearing to provide the documents. He indicated he would provide his father’s death certificate.
The applicant, who speaks English, consented to, and was able to, continue with the hearing via teleconference. There was nothing to indicate he had any difficulty communicating and putting his case forward. He was able to respond to the questions. The Tribunal is satisfied that the applicant had a real opportunity to put evidence and submissions in support of his case.
The Tribunal asked for some background. The applicant has his mother, grandmother, aunts and uncles and cousins in India. He indicated he speaks regularly to his mother and grandmother two or three time a day. He agreed with the Tribunal that his mother has some support from their extended family in India In Australia he has a brother and sister. He stated that he is currently not working.
The applicant then went through his immigration history in Australia. He first came on a student visa in 2007. He returned to India in 2011. He claims he underwent an arranged marriage in India. He states that the marriage did not work out and they were subsequently divorced. He claims that he was under a lot of stress and his parents were getting threats and demands for money from his in-laws. He claims that his parents’ health subsequently suffered.
He claims that due to this stress, he could not pass his IELTS test. As a result, he was not successful in his application for permanent residency. He was then in a relationship with an Australian woman but that was not successful as they could not live together. The Tribunal indicated he then lodged his application for protection in 2016.
The Tribunal then asked the applicant why he was fearful of returning to India. He stated words to the effect that there are protests everywhere. I The applicant stated that in the Punjab no one is safe, there was drug abuse, Coronavirus and medical problems and said words to the effect that “they” are just grabbing people and killing them.
The Tribunal asked the applicant to clarify what he was referring to and why he was at risk. He said it was the general situation and Sikhs, that every time Sikhs do something the government is against them and that Sikhs are targeted even though they have committed no crime. He stated that the Sikhs look after every community and went through the charitable work Sikhs have undertaken in Australia. The Tribunal encouraged him to provide more details about is claim for protection. He responded with words to the effect that he did not know what else to say.
The Tribunal reminded the applicant that he claims he has documents to provide and asked what those documents would show. He responded with words to the effect that his father had the paperwork which would explain what is happening. The Tribunal again pressed for more information. He responded with words to the effect that he has no idea what the documents are, and his mother and grandmother have no clue.
The Tribunal asked if he is a member of a political party. He responded that he was not however “they” put your name next to a party. When the Tribunal again asked him to expand on which party, he responded Babbar Khalsa. He stated words to the effect that the threats are against him.
The Tribunal then discussed with the applicant whether he could re-locate within India. The Tribunal stated that it appeared from his application that he left India from New Delhi and asked if he could relocate there. He responded that there are massacres against Sikhs. The Tribunal responded that he was talking about something that happened a long time ago. He agreed he was. The Tribunal discussed country information which indicates that Sikhs generally can live peacefully in India. The Tribunal discussed country information that in Punjab Sikhs make up the majority of the state. He agreed however he stated that he would not be safe.
The Tribunal discussed that he spoke three languages including English and Hindu, was young and could relocate to a large city. He stated that Sikhs only make up a small percentage and he could be followed there.
The Tribunal put to the applicant that in his application for protection he stated that when he left India his family were harassed, and he had been in hiding. The Tribunal asked why he did not apply for a protection visa then in 2007 and why he waited so long to apply for protection. He responded that he was always a good student and he was confident he had a student visa.
The Tribunal asked the applicant to clarify that he was saying he had only received threats. He responded that he had, and that his mother and father had to move house because of the threats. The Tribunal then put to the applicant that in his written statement he had said that he was bashed, beaten and faced false charges from the police. The Tribunal asked him to clarify why earlier in the hearing he had been saying he only suffered threats. He responded with words to the effect that he meant that when the police come, and you are not home, they will catch you; however, when you raise some money, they may let your go.
The Tribunal put to the applicant that his immigration history could indicate that he was motivated to secure permanent residency in Australia rather than having a real fear of returning to India. He responded that he had gone for a marriage visa, but he could not get along with the woman and he did not get one.
The Tribunal discussed independent information on India. He responded that he did not agree with the information and that riots are going on in India at the moment. He said that rules and regulations are being imposed and this is happening now.
The Tribunal again asked the applicant if there was anything further, he wished to say. He responded that his father died of stress and he does not know what else to say.
The Tribunal then discussed with applicant how long he would like after the hearing to provide the documents, and what documents he would be providing. He said he would provide his father’s death certificate, and he had other documents. The Tribunal asked what documents, so it could consider the request for more time. He indicated he did not know what documents his father had. He stated that his mother and grandmother are very stressed in India and his cousins are not close to his mother and grandmother.
The Tribunal indicated it would accept by email anything further he wished to provide. The Tribunal allowed a further two weeks to provide any documents the applicant wanted the Tribunal to consider and indicated it would then carefully consider the evidence before it and any documents provided and then make its decision. The applicant indicated he understood.
After the hearing the applicant provided a statement of his claims. He stated that he was affected by the massacre of Sikhs in 1984 and provided a link to a story of that massacre. He stated that when he was in secondary school, he met Jasjit Singh Babber Khalsa, and attended meetings and organizing events. He claims this bought him to the attention of RSS groups who are a working body of BJP Government and claims that due to his attending these meetings his house was attacked in October 2005.
The Applicant claims he then stopped attending Babber Khalsa meetings for the sake of his family. He claims his Dad was threatened, lost his job and he was getting beatings every other day by RSS. He claims he moved away from his parents to live with relatives, but he was followed and treated very badly by RSS.
The Applicant claims that in Punjab the number of Sikhs is high, but their conditions are miserable, and the only option is to move to another country. He claims he went back in 2011 to get married in India. He claims that RSS created a big scene at his marriage ceremony. He claims police took him and kept him for a whole night. He claims he was released after bribing the police. He claims this happened several times.
The Applicant claims that he secured his wife a visa to Australia however the marriage didn’t last long. After his divorce he was very stressed. He claims he could not concentrate on his exam and failed his English test. He claims he was depressed. He states that he married an Australian girlfriend however the marriage did not work out as they did not get along and he did not apply for a marriage visa with her. He claims he had no other choice but to apply for a protection visa.
The applicant provided links to general information and articles relating to Sikhs. He provided a link to an article about a Sikh activist who was killed by police in 1995. The Tribunal considered that link. It showed that the Sikh activist was investigating crimes perpetrated by police. The information indicated that in 1996 the Central Bureau of Investigation found he was held at a police station and they recommended prosecution of Punjab police officials. Six police officials were convicted and sentenced to imprisonment. Further links were provided to protests held by Sikh activists including events in 2015 and farmers’ protests
The applicant provided three scanned certificates which he claims show injuries suffered by his mother, father and himself in 2005. He claims that the reports support his claims his family was attacked in 2005 and police complaints were made. All three reports are of a general nature. The reports list injuries which do not appear to be life threatening. In the report there is a heading “In Police Cases” and a section for information to be added. The section is empty. In response to a question “The kind of weapon or poison used” n/a is listed. Two Identical statements were provided from persons who identify as the applicant’s friends, they are undated. They claim they took the applicant to hospital due to the attack on his home and the beatings and bashings he suffered on 2 October 2005.
Nationality
The applicant claims to be a citizen of India and has provided a copy of his Indian passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of India and that he is outside his country of nationality. As such, the Tribunal finds that India is the applicant’s receiving country for the purpose of assessing his claims for protection.
There is no evidence before the Tribunal to suggest that the applicant holds any other citizenship or has any third country visas.
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true. The Tribunal is not however, required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The applicant, in his written statement attached to the application for protection, claimed that he is at risk as he is a Sikh and his family support the Khalistan movement. He claimed he left India because of his activities as a member of the Babbar Khalsa party and his association with affiliated groups who were against the Indian government due to the Blue Star operation at Amritsar in 1984. He claimed BJP Hindu fundamentalists are targeting every person who is a supporter of Babbar Khalsa, and the Indian forces are killing them one by one.
The Applicant claims his family were targeted by the Rashtriya Swayamsevak Sangh during last general elections. He claimed he was arrested many times by police, bashed and beaten. He claims his house was burnt down by the BJP party, a relative died and they were denied police protection. He claimed false charges were brought against him and his family. He claims he continued organizing rallies and speaking out and suffered further bashings and death threats. He claims his family was harassed and he was in hiding prior to arriving in Australia on a student visa.

After the hearing the Applicant supplied a further statement in which he claims that he fears being returned due to being a Sikh and gave a history of his involvement with the Khalistan movement and how he and his family were targeted by RSS and the police. In the statement he claimed he and his family were hospitalised after being attacked in their home.
At hearing the applicant was invited to detail and go through his claims. He claimed that in 2011 when he returned to India, he had an arranged marriage. He claimed that the marriage was not a success and he divorced the woman. He claimed that his in-laws threatened and harassed his family over money. No further detail was provided.
When asked to clarify what political party he belonged to he responded “none” he stated that “they” would put one on him. This contrasts with the written claim that he belonged to a political party, was an organiser and due to this had to hide and flee India. At hearing the Tribunal prompted the applicant on his claims and requested more detail. He was asked about his fears and experiences. He responded that he was just threatened. He gave a general response about riots and protests and regulations and Sikhs being targeted. The Tribunal asked him to clarify that he was saying the principal harm that he feared was threats, he agreed it was.
The Tribunal then referred the applicant to his written claims set out above in which he gave details of serious events including beatings and false charges. He responded with words to the effect that he meant that when the police come, and money is given they will let you go. He did not give any convincing or persuasive response as to why his oral evidence would omit such dramatic and serious events which affected him and his family.
The Tribunal put to the applicant that in his application for protection he said he fled India in 2007 as his family were harassed and he was in hiding. The Tribunal asked why he did not put in any claim for protection until 2016. He responded with a general response that he was a good student. The Tribunal would expect that anyone in a life-threatening situation and in hiding before he left India would have immediately lodged an application for protection. Instead the applicant returned to India to his home village, had an arranged marriage and then returned to Australia. The applicant at hearing, and in his written statement (attached to his application for protection), did not detail any threats or harm suffered on his return to India in 2011. The Tribunal does not accept that if the Applicant held such serious fears, he would have returned to India in 2011 or undergone an arranged Indian marriage. If there was any risk that persons, of other political parties, Hindu fundamentalists, BJP, RSS, Indian army or police wanted to cause him serious harm the Applicant would not have been able to return to India and not suffer serious harm.
After the hearing the applicant provided a written statement in which he claimed that in 2011 he was subjected to threats, a big scene from RSS, the police taking him and keeping him overnight and having to bribe the police to be released. The Tribunal has considered the applicant’s evidence at hearing and provided after hearing and is satisfied that he prepared the further statement in response to the Tribunal’s concerns which were put to him at the hearing. The applicant’s response seeks to overcome the deficiencies in his previous evidence by putting in another version of what happened when he returned to India in 2011. His previous evidence did not detail any harm suffered in 2011. The Tribunal would have expected that if one suffered such a serious and traumatic event, such as a terrible scene at his wedding and the police detaining him overnight, it would have been referred to in his previous evidence.
At hearing, when asked to go through his claims, he stated that when he returned in 2011 his family had problems with his in-laws who were demanding money from them. He did not refer to any of the dramatic events he listed in his written statement provided after the hearing.
The Tribunal has considered the medical certificates provided after the hearing. The certificates refer to injuries, they are handwritten and dated October 2005. There is nothing in the reports to indicate that there were police involved or weapons. The applicant in his written statement refers to two violent events one in 2011 and the other in 2005. However, after 2005 he continued to live in India until he left in 2007. He refers to a violent incident in 2011 where he was detained and bashed by police and sought to flee with his new wife to Australia however no application for protection was lodged until 2016. At hearing, when queried about the delay, the applicant stated he was a good student that he thought he would get another visa. The Tribunal does not accept that if he was truly in fear of his and his parents lives, he would not immediately seek protection. He did not lodge an application for protection until all his other options to gain residency in Australia were exhausted.
After consideration of the applicant’s responses to the Tribunal’s concerns and his oral evidence, the Tribunal is not satisfied that he is at risk of serious harm due to being affiliated with a political party or more generally being a Sikh in Punjab.
When independent information was put to the applicant, he indicated he did not agree with it and gave a generalised response that there were riots and danger all over India. After the hearing the applicant provided links to further articles and reports on issues relating to Sikhs in India. The Tribunal considered the links. The links refer to protests and what appear to be clashes with the local police. When reading the full links, it is evident that where there was unrest the Indian authorities sought to restore order. In relation to the incident of the Sikh activist who was investigating unlawful behaviour by the police the information indicates that the authorities investigated and charged the police officers involved. The independent information indicates that the police officers charged were found guilty and sentenced to a prison term. The Tribunal is satisfied that the Indian authorities moved to restore order and protect their citizens.
The applicant at hearing, was able to understand the questions and communicate with the Tribunal. He was given ample opportunity to expand on his claims.
The Tribunal put to the applicant that his immigration history could indicate that his motivation was to gain residency in Australia, rather than him holding a genuine fear of serious harm if he returned to India. In response, at the hearing he stated that he had applied for a marriage visa, but he could not get on with the woman.
The Tribunal has considered the applicant’s immigration history since 2007, he was unsuccessful in his attempts to get a skilled visa, marriage visa and finally has lodged an application for a protection visa. The Tribunal, after considering its findings above and the evidence of the applicant, is satisfied that the applicant’s motivation in applying for a protection visa was to secure his preferred migration outcome in Australia and not that he holds any fear of serious harm if he returns to India.
The applicant at hearing stated that his first marriage in India in 2011 was unsuccessful and his family were threatened by his in-laws. No further details were given. The applicant did not address this claim in his application for protection or his written statements and only canvassed it at hearing. The Tribunal only has the applicant’s own assertion that his family were threatened by previous in-laws.
Given the flaws in the applicant’s evidence the lack of any independent evidence which might strengthen his claims the Tribunal is not satisfied that the applicant is at risk of harm from the family of his first wife in India.
The Tribunal finds that if any of the actors the applicant claims wanted to cause him any injury or serious harm, they would have had ample opportunity when he was in India in 2011. His sworn oral evidence at hearing is that he was only threatened. He could not provide any details of serious harm until he provided further evidence after the hearing. He provided documents he claimed are medical certificates and two identical statements from persons who he refers to as his friends. The Tribunal accepts that the applicant’s friends would want to assist him secure the visa outcome he desires and have signed supportive statements which appear to be identical and generated, on the face of them they do not have an authentic air. The statements and medical certificates when weighed against the applicant’s oral evidence and evidence provided with the original application for protection are not persuasive or convincing enough to satisfy the Tribunal that the applicant suffered serious harm or is at risk of serious harm if he returns to Punjab. The Tribunal finds that the applicant manufactured evidence after the hearing in an effort to divert the Tribunal from the inadequacies with his evidence which was put to him at the hearing.
The applicant did not provide any evidence of his father’s death. He claimed that he could not provide that evidence as his mother could not walk due to sickness and his grandmother is too old. The Tribunal does not accept this as his evidence is that his mother and grandmother have an extended family around them in India. When it was put to him at hearing that his mother and grandmother have a supportive family around them who could provide assistance, he at first agreed. The applicant then stated that his relatives were not close, and later stated that after the attack in 2005 he went to live with relatives. In his application for protection, the Applicant stated that his family have been able to financially support him in Australia as he was not working. The Applicant further claims that they were able to provide medical reports dated from 2005 but not a recent report in relation to his father’s death or any death certificate.
The applicant may have a sick mother, elderly grandmother and deceased father however it does not accept that his father’s death would be a reason for delaying any hearing or decision. His father’s death or sickness does not impact on the applicant’s claims for protection. He stated that his father died of stress but at hearing stated it was a stroke. The Tribunal does not accept that his father’s death was related to any claim that he is being persecuted by political agents who are against Sikhs in Punjab. The Tribunal does not accept that if there were documents in India, that his mother and grandmother would not be able to source them or send them to the applicant, as the Tribunal is satisfied, they have supportive family around them in India.
The applicant referred to himself being depressed however; no further evidence was provided. No medical evidence was provided. There is nothing to indicate that if the applicant returned to India and suffered depression or mental illness, he would not be able to access medical care. His family have been able to assist and support him financially in Australia and the Tribunal is satisfied his family will be able to provide medical care and services to their son in India.
The applicant referred to drug abuse and the “general situation” in India. No other details or evidence was provided in relation to those claims. On the evidence before it the Tribunal is not satisfied that the applicant would suffer serious harm due to drug abuse or the ‘general situation’ in India.
He claims his family has suffered however, his oral evidence is that they have continued to live in Punjab and no harm has come to them.
He claims that his father died from stress, at hearing he referred to his father dying from a stroke. No medical evidence was provided which would indicate if his father died or what caused his death.
The applicant referred to the Coronavirus being a risk in India. He made vague generalised claims about people being killed in India. The Tribunal has no independent information or evidence which indicates people are being killed in India by state actors. There may be concerns about the spread of the virus however, the Tribunal notes that the Department has procedures in place to grant bridging visas to persons due to COVID. There is nothing before the Tribunal to indicate any intention by the state or any other actors to cause harm to persons because of Coronavirus.
The Tribunal does not accept that the applicant would not be able to return to his village and live peacefully in India. His evidence is that his father has lived in his home village until he died of natural causes. His mother and grandmother have lived in his home village without the applicant since 2007. He claims he speaks regularly to his mother and grandmother. He made written claims of his family suffering threats and harm however, at hearing he could not expand on any harm in any convincing or persuasive manner.
The Tribunal accepts there has been protests by the Sikhs in Punjab. The Tribunal accepts that there was a massacre of Sikhs in 1984 and later Sikhs who were accused of being terrorists. The Tribunal also finds that there was an inquiry into those incidents. The applicant provided further information on Sikhs in Punjab and that there have been clashes. None of the evidence directly relates to the applicant. It is of a general nature. The information, when considered, indicates that the authorities have acted to investigate such clashes.
The Tribunal accepts that there has been concerns about the rise of Hindu nationalists. The Tribunal, however, accepts country information, set out above, that the authorities have sought to act to restore order when there have been riots or incidents against minorities.
Overall the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm for any reason set out in s.5J(1)(a) if he returns to India. The Tribunal is not satisfied there is a real chance the Applicant will suffer serious harm for any of the reasons claimed, or for any other reason if he returns to India. Accordingly, it is not satisfied he has a well-founded fear of persecution. The Tribunal is therefore, 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 nevertheless meet the criterion for the grant of a protection visa under the complementary protection criterion.
As indicated above, the applicant claims he is at risk from members of the BJP and RSS parties As set out above, the Tribunal has considered all the evidence in relation to this claim and does not accept, on the evidence provided, that he has a real risk of suffering significant harm at the hands of members of BJP or RSS or Hindu fundamentalists. The Tribunal does not accept that he is a high-profile critic of the government or its policies in Punjab. The Tribunal accepts independent country information that India is a functioning democracy with an independent judiciary. The Tribunal accepts that while there are challenges with its institutions, where there is unrest the authorities in India move to restore order, prosecute unlawful behaviour and protect its citizens.
The Tribunal does not accept that the applicant has been an outspoken critic of Hindu fundamentalists, BJP or RSS parties or has organised rallies.
The Tribunal does not accept that the applicant will suffer significant harm due to being a Sikh. The Tribunal does not accept that the applicant or his family has come to the attention of the Hindu Nationalists, police, BJP or RSS due to his being involved with Khalista party or being a Sikh. The Tribunal accepts country information set out above and again below:
Sources agree that, since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent ‘Khalistan’ may be subject to attention by authorities. DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination. As set out above the Tribunal is not satisfied that the applicant will suffer significant harm due to the Coronavirus, his in-laws demanding money, any mental illness, drug abuse or the “general situation” in Punjab for Sikhs.
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 India, 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.
Catherine Carney-Orsborn
Member

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

[2020] AATA 5965

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