1703333 (Refugee)

1703333 (Refugee) [2020] AATA 5131 (5 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703333
COUNTRY OF REFERENCE:                   India
MEMBER:Catherine Carney-Orsborn
DATE:5 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 November 2020 at 2:58pm
CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh – political opinion – publicly critical of Rashtriya Swayamsevak Sangh (RSS) and Bharatiya Janata Party (BJP) – victim of attacks directed by BJP leader – brother murdered by RSS members – vague evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 February 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, was granted [a visa] offshore for himself, his wife, and his two children on 19 February 2016, valid until 4 July 2016. The applicant and his family arrived in Australia [in] April 2016.
The applicant and his family applied to the Department of Home Affairs (the Department) for Protection visas on 18 May 2016. On 6 February 2017, the delegate refused to grant the visa on the basis that there was insufficient evidence to satisfy the delegate that the applicant’s brother and mother had been murdered, that the applicant was of interest to the RSS, and that the Indian authorities would be able to protect the applicant. The applicant applied to the Tribunal for review of the decision on 25 February 2017. The applicant’s wife and two children were not included in the review application and departed Australia.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under 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, various news articles submitted by the applicant regarding rising Hindu nationalism and violence against minorities, a written statement by the applicant setting out his claims for protection, school records for the applicant’s children, the children’s birth certificates, copies of the applicant’s and his family’s passports and driving licences, a copy of the applicant’s marriage certificate, a death certificate for the applicant’s brother stating that he died from natural causes [in] March 2015, a death certificate for the applicant’s mother stating that she died from natural causes [in] May 2015, and a copy of the delegate’s decision record.
The Tribunal file contains a copy of the delegate’s decision record, and additional news articles regarding Hindu nationalism and violence against minorities within India.
There are no non-disclosure certificates on the Department file. The Tribunal file contains an allegation received by the Department that the applicant has returned to India via Nepal, and this is covered by a s.438 non-disclosure certificate on the basis that the information was received in confidence.
The applicant claims that he will be persecuted in India due to his speeches against Rashtriya Swayamsevak Sangh (RSS) and the Bharatiya Janata Party (BJP).
The following information is obtained from the application forms.
The applicant was born on [date] in[City 1], Jammu and Kashmir, India. The applicant lists no ethnicity, and is a Sikh who speaks, reads, and writes Hindi, reads and writes English, and speaks Punjabi.
The applicant married [in] December 2014 in [City 1]. The applicant’s father is in India, and the applicant’s brother-in-law is in Australia. The applicant is in touch with his father over the phone.
The applicant lived in Amritsar, Punjab from March 2015 until October 2015, and then lived in Jodhpur, Rajasthan from October 2015 until January 2016. The applicant then lived in [location], Uttarakhand from January 2016 until coming to Australia in April 2016.
The applicant attended primary and secondary school from March [year], completing Year 9 at the [named] High School, [City 1], in April [year]. The applicant lists no other education.
The applicant states that he was unemployed June [year] until January 1997. The applicant worked as a Sikh priest in [City 1] from January 1997 until February 2005. The applicant then worked as [an Occupation 1] in [City 1] from February 2005 until March 2015. The applicant has been unemployed since.
The applicant claims that his life in India was in danger because of his opposition to the ruling party, BJP, and RSS. The applicant claims that RSS members wanted to kill the applicant, and BJP politicians were supporting them. The applicant claims that he was attacked twice. The applicant has bought life insurance so that his children will have money if he is killed.
The applicant claims that [in] March 2015, RSS members attacked him with a sword when he was on his way home from the airport. The applicant was injured, and his left arm cut. The applicant ran away into some farms, and went to a police station, but the police would not write a complaint against the RSS members. The police told the applicant to leave and not come back, and that the police cannot do anything because the politician warned the applicant. The police officer suggested that the applicant move to another state.
The applicant claims that he has been physically and mentally harmed by RSS. The applicant has lost his mother and brother, and that this has occurred due to the BJP leader in [City 1], [Mr A]. The applicant spoke against the ideology of Hindutva and BJP and RSS organising riots against minorities, so [Mr A] ordered RSS to kill the applicant.
The applicant moved to Punjab, in his father-in-law’s house. RSS found the applicant, so he fled to Rajasthan and then Uttarakhand. The applicant claims that RSS have six million members in India.
The applicant claims that they killed his brother, and he fears that they would kill him, and fears for his wife and children’s future. The applicant claims that the police are under the politicians and will not assist him. The applicant claims that his brother was killed by RSS members and his body found in a farm with swords, but the police did a post-mortem and reported that he died from natural causes.
The applicant claims that he cannot relocate as the RSS has six million members and control the police. They also have the money and power to find the applicant, track his phone and his family’s phones, and find him. The applicant claims that they already found him twice.
In the applicant’s written statement, he claims that his father is a priest in the local Sikh temple in [City 1]. Due to this, the applicant could speak out against problems in society and their area. The applicant believes that Narendra Modi is racist, and claims he was involved in the Gujarati riots. The applicant was concerned that his state could be ‘burnt’ by BJP and RSS, especially as it was under terrorist threat. The applicant spoke against BJP and RSS to make people aware of the political issues in the state.
The applicant told people not to vote for the local BJP candidate, [Mr A]. [Mr A] sent people to check on public speakers and heard about the applicant. [Mr A] sent people to threaten the applicant and offered him money to stop speaking. The applicant refused, and they threatened the applicant, saying he would be gone when they are in power.
When [Mr A] was elected in the local area, he sent sweets to the applicant’s home with a message telling the applicant to save himself from them. The applicant’s parents insisted the applicant go to another state, but he refused. [In] March 2015, the applicant was attacked with RSS members wielding swords at the behest of [Mr A]. The applicant escaped and went to the police, but they refused to register a complaint. Other community members were with the applicant, but the police would not take action against [Mr A] or RSS members. Everyone told the applicant to leave the state. The applicant decided he should.
The applicant bought life insurance in case he died, so that his children would have money. RSS members visited the applicant’s home twice and left a message that they will find him wherever he hides. The applicant’s brother was killed by RSS members using swords [in] March 2015 and left his body in a farm. The police got the body and had a post-mortem report that the brother died from natural causes and covered up the murder. The applicant could not speak to his mother about this, as his family members’ phones were tapped by the RSS, due to their money, power, and authority. The applicant’s mother died [in] May 2015 while sleeping, and the applicant’s father could not get a death certificate from the police until he went to court.
The applicant was hiding in his father-in-law’s house. After 7 months, RSS members attacked the applicant near the house, and the applicant’s brother-in-law, who was present, fought back so the applicant could escape. The applicant moved to Rajasthan, but after three months RSS traced him there, the applicant saw them and hid, and then ran away. The applicant went to Uttarakhand to plan going overseas, so he can be alive and safe for his children.
COUNTRY INFORMATION
The Department of Foreign Affairs and Trade (DFAT) Country Information Report – India, dated 17 October 2018, provides the following information on political violence in India:
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’. The Constitution protects the right 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.
There are few publicly available statistics on election incidents. Reports of violence around polling stations do occur during electoral periods.
During 2017, police filed sedition charges against TTV Dhinakaran, the leader of the All India Anna Dravida Munnetra Kazhagam party, and some of his supporters for distributing pamphlets that criticised Prime Minister Modi and the Tamil Nadu Chief Minister.
DFAT assesses that leaders and members of opposition political parties do not face official or societal discrimination. 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, elections in India are peacefully conducted.[1]
[1] DFAT, Country Information Report – India, 17 October 2018, pp. 15 – 16, paras [3.20] – [3.25].
In regards to police and the judiciary, the DFAT report notes the following:
Each state and union territory maintains a separate police force. NCRB data records a total of 1.7 million officers of all ranks across India in 2013. The central government recruits and manages the Indian Police Service, which posts officers to senior positions within state police forces. The central government oversees national armed police organisations: the Assam Rifles, the Border Security Force, the Central Industrial Security Force, the Central Reserve Police Force, the Indo-Tibetan Border Police and the National Security Guards. It is also responsible for the Bureau of Police Research and Development, the Central Bureau of Investigation (corruption investigation agency that reports directly to the prime minister), the Directorate of Coordination of Police Wireless, the Intelligence Bureau, the National Crime Records Bureau, the National Institute of Criminology and Forensic Science, and the National Police Academy.
The processes of recruitment, transfer, promotion and dismissal of police officers are opaque. Police resources, training and staffing are limited in some areas. There are media and civil society allegations that senior officials or political figures shape the conduct of investigations. Some victims of crime allege that people other than political figures or senior officials sometimes also attempt to interfere with police investigations.
Registration, investigation and prosecution of cases may be affected by bias in relation to the class, caste, ethnicity and religion of a victim or offender. Ethnic and religious minorities complain that police lack sensitivity, suspicions about which sometimes lead to communal violence. Local sources report that police, along with other agencies including the courts, public servants, judiciary and prosecutors, have an inherent bias when dealing with Dalit victims of crime in particular.
The Indian judiciary is independent of the executive branch. Some international rights organisations claim that corruption is prevalent, particularly at lower levels of the judiciary. Large backlogs of cases means that most citizens have great difficulty securing justice through the courts. In 2017, the government created a search and evaluation committee to support the appointment of judges.
The high courts in 2017 had over four million cases pending, with 25 million cases awaiting trial in subordinate courts. The Supreme Court has over 60,000 cases pending. Backlogs lead to lengthy pre-trial detention periods for a large number of suspects, in some cases significantly longer than any prison term their alleged offence would attract. Over two thirds of detainees in the criminal justice system are awaiting trial, and prisons are overcrowded.
Section 39A of the Constitution mandates that equal justice and free legal aid are rights of every Indian citizen. In practice, defendants are assigned state-appointed lawyers. The quality and consistency of representation by state lawyers varies. The standard of defence from a state-appointed lawyer would not compare to a highly-paid private lawyer.
In April 2017, the Ministry of Law and Justice launched an alternative to improve legal assistance for disadvantaged citizens. This included expanding pro-bono legal services to improve access to higher quality legal advice. The ministry partnered with the Ministry of Electronics and Information Technology to launch a pilot of ‘tele-law’ services, which provide legal services through common service centres in remote rural areas.[2]
[2] DFAT, Country Information Report – India, 17 October 2018, pp. 25 – 26, paras [5.3] – [5.9].
In regards to the applicant’s status as a Sikh, the DFAT report provides the following information:
Sikhism is a monotheistic religion founded in the Punjab region (now part of both India and Pakistan) in the 15th century. Sikhs consider themselves disciples of the Ten Gurus, beginning with Guru Nanak (1469-1539) and ending with Gobind Singh (1666-1708). According to the 2011 census, the Sikh population of India was approximately 19 million, 1.7 per cent of the total population at that time. Most Sikhs (75 per cent) live in Punjab, where they comprise around 55 per cent of the population.
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 an 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 that followed, 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.
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.[3]
[3] DFAT, Country Information Report – India, 17 October 2018, p. 15, paras [3.16] – [3.19].

The applicant appeared before the Tribunal on 27 October 2020 to give evidence. The applicant was assisted at the hearing with a Hindi interpreter. The Tribunal went through the process and explained the reason for the hearing. The Tribunal explained that it was the applicant’s opportunity to discuss relevant issues with the Tribunal.
The applicant’s representative participated in the hearing.
The Tribunal asked if the applicant has any difficulty understanding the interpreter, he indicated he did not.
A summary of the evidence given is as follows.
The Tribunal indicated that it had before it the information on the Department file and Tribunal file. The Tribunal asked the applicant if the information contained in the application for protection was true and correct. The applicant indicated that it was true and correct.
The Tribunal asked why the applicant could not return to India. He stated words to the effect that in 2016 he came to Australia on a tourist visa. He has a brother-in-law in Australia. His family arrived with him in Australia however his father became unwell and his wife and children returned to India to live with his father as his father was [visually impaired]. The applicant’s wife and children went back to India in 2017 to look after him.
The applicant claims that he speaks regularly to his wife in India.
The Tribunal discussed with the applicant the fact that there was a non-disclosure certificate placed on the Tribunal file. The information was that the applicant had travelled to India since he came to Australia. The applicant stated that he had not left Australia since he arrived in 2016. He claims he has not left Sydney. The Tribunal indicated that as the allegation was anonymous it would place no weight on the claim that he has returned to India from Australia since he put in his application for protection. The Tribunal notes that his movement records indicate he has not left Australia since he arrived in 2016.
The Tribunal asked him to expand why he cannot return to India. He stated that in the 2014 election he campaigned against the BJP. He claims they killed Muslims. His father worked as a priest and the applicant would speak out against the BJP at gatherings at the Sikh temples. He claims that because he has spoken out against the BJP, they will kill him. He did not want them to come into his place at [City 1], Kashmir.
The Tribunal again asked him to expand on his fear. He states that he used to go into the Sikh communities and any groups with Sikhs around the state and areas of [City 1] to talk to them. He claims that the only aim of the BJP and RSS was to suppress Muslims and Sikhs.
The Tribunal asked what he feared. He stated that they (RSS) have killed his brother. He said the police said it was a natural death however if he goes back, they will kill him.
The Tribunal asked how his brother died. He responded that he was travelling in the Punjabi when his brother was killed and thrown in the fields. He claims he was taken to hospital and there was no post-mortem and it was recorded as a natural death. He claims he could not go to the funeral.
The Tribunal asked on what he based his claim that his brother was murdered by the RSS if he was not there.
He responded with words to the effect that the whole community knew about it. He claims the whole village knew about it. The Tribunal queried that, if the whole community knew about his murder and it was a large population with Sikh police, how were the RSS able to stop any enquiry.
He responded that there are Sikhs in the police force however the whole government is run around these people (RSS). He claims that 20 days before his brother passed away, he was targeted. He claims that [in] March after the election he was riding a bike and was hit by a car. He claims men came out of the car and hit him on the left arm. He claims they had weapons in their hands and hit his left arm. He claims that he ran to the police station however the police would not report the attack.
He claims the police are under the thumb of the RSS and he had no witnesses.
The Tribunal asked if the BJP and RSS won the election why would they target him.
He repeated that he was targeted as after the election they sent sweets to his house and told him it was the time to celebrate. He claims they sent the sweets with some boys to his house out of spite.
He claims that after he was attacked and threatened, his family told him to move to the Punjab and he moved with his wife and children to Punjabi.
His parents stayed in his village in [City 1]. He claims that while on a bike with his brother-in -law a car with three or four youngsters in it, stopped them and attacked them. He claims they had weapons and overpowered him, so he ran away. He claims that they had swords.
The Tribunal again asked about his brother and what injuries he had suffered. He claims that he was not present and did not see his brother’s body however there were injuries on his chest and foot. He said it was not sharp, it was a lot of bruises on his chest and leg.
The Tribunal said that earlier he had stated that it was head injuries.
He responded it was whatever was described to him. He claims his mother passed away two months later. He claims this was from the stress.
His father recently passed away; he claims his father died from the stress. The Tribunal asked how old his father was. He responded he was 75 years of age.
The Tribunal asked where his wife and children were living now. He claims they are still living at his father’s house in his home village. He claims his wife is threatening to go back to her parents’ house if he does not look after them.
He said he is currently working as [an Occupation 2] and sends money back to them. He had previously worked in India as [an Occupation 2] and [Occupation 1].
He claims that due to the turmoil in [City 1] and now COVID 19 all the schools are closed.
The Tribunal asked why his wife and children do not move to the Punjabi to be with her family. He responded that they have to look after his father. The Tribunal pointed out that his father is now deceased. He responded that his wife keeps taunting him she will go back to her mother’s place.
The Tribunal went through with the applicant the independent country information he had provided. It was articles and commentary about issues generally facing Sikhs and the community in Kashmir and India. The Tribunal asked if any of the articles he had printed out related directly to the applicant. He said not directly but they showed that things can happen, and people are attacked in India. The Tribunal noted that the news articles also showed that police had generally acted to restore calm.
The Tribunal asked with words to the effect, why it was that if they (RSS) were so intent on killing him and had swords he was not harmed in the two altercations as it appeared, he had not suffered any serious injuries.
He responded that with the first incident it was at night-time and he ran into the darkness, with the second incident he ran into peoples houses and the people came out after hearing noises.
The Tribunal discussed the country information that although there had previously been some unrest in 1980s and early 1990 Sikhs have since lived peacefully in India. The Tribunal pointed out that in the Punjab region Sikhs make up 55 percent of the population. The Tribunal asked why he and his family could not return to live in the Punjab.
He responded with words to the effect that there is a large community of the other groups in the Punjab. The Tribunal asked if he could move to Nepal. He responded that there was no work, nothing to do and a language problem.
The Tribunal again invited the applicant to discuss his fear of return. He said his father spoke out and he faced that same threat that his father faced. The Tribunal pointed out that his father lived to old age. He responded that he was an elderly man, so they left him alone.
The Tribunal then invited him to respond to its concerns that if he was so fearful why would he send his wife and children back to his home village. He responded that they had to look after his father.
The Tribunal asked if he had anything further to add. He indicated he did not.
The applicant’s representative indicated he would like further time to provide more evidence. The Tribunal queried what the nature of the evidence was. The representative said further information on the situation in Punjab. The Tribunal pointed out that he had already had ample time to provide any further evidence and had supplied general information on the Punjab, but however allowed a further week.
After the hearing the applicant supplied an article by Pritam Singh on Punjabi identity and his view that a stronger Punjabi identity will emerge, Media reports about the opposition to the Government policy of excluding Punjabi language as an official language of Jammu & Kashmir and the view it is a deliberate attempt to communalize the community. The applicant provided a copy of reports of protests by Punjabi Community over agricultural policies and reforms. A report of a massacre of Sikh men in March 2000 who were accused of being terrorists. Media reports of current security situation in Jammu and Kashmir.
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. However, the Tribunal is not 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 claims that he cannot return to India as he has spoken out against the BJP and RSS parties. He claims they are radical Hindu organisations that seek to discriminate against and harm Muslims and Sikhs in India.
When asked for details in his oral evidence the applicant recited evidence he had outlined in his written claims. He claims that supporters of the RSS party will kill him. He claims that his brother has been murdered by the same elements. He supplied a death certificate for his brother. The death certificate stated that his brother died of natural causes at home. In his evidence he stated that his brother was murdered by Rashitriya Swayamsevak Sangh (RSS). In his oral evidence he stated that his brother had bruises on his chest and legs. In his other evidence he stated that his brother died from head injuries, “swords through his body” and “butchered like an animal”. When the discrepancies were put to him, he did not have any persuasive answer as to why there was such a discrepancy on a violent and distressing incident involving his brother except to respond that he was not there, and it was described to him.
When he was invited to discuss why he had not been seriously harmed or killed when he claims he was attacked twice with swords he said that he had run away, it was dark, and he sought help. When the Tribunal invited the applicant to discuss why the RSS would attack him with such vengeance when they had just won, and not lost the election, he again had no adequate response except that “they” control everything.
The applicant could not explain why he would send his wife and children back alone to his home village in 2017 to live if there was mortal danger and forces, including a local BJP leader wanting to extract revenge on him and his father. When invited to discuss he stated that there was no one else to look after his father. In his written statement he stated that [Mr A] a local BJP leader had ordered he be killed he further stated that the applicant spoke out against radical Hindus and he was a Sikh priest. In his oral evidence he did not provide any further information on those two details. His evidence was vague and the claim of serious harm was of a general nature that all Sikhs are at risk of ham.
He claimed his father was a priest and spoke out against the Hindu fundamentalists in the Temple and the RSS. When queried why his father was able to live to an old age, die of natural causes and not be targeted, the applicant responded it was because he was elderly. When asked why his children would not be at risk, he did not offer any persuasive or convincing argument rather then his father needed to be looked after.
The Tribunal discussed with the applicant why he could not return to live in the Punjab considering his wife’s family live there. She has indicated she wants to return there, and they previously lived there. He claims that he was attacked when he lived there. The Tribunal does not accept that the applicant was attacked with swords in the Punjab or in his home village in [City 1]. The applicant claimed he spoke against the BJP regularly as a Sikh priest with his father who was also a Sikh priest, he claims he was threatened in 2014, and physically attacked in March 2015 and some months later when he fled to his fathers-in-law house. He did not leave India until April 2016. The Tribunal is of the view that if radical powerful forces behind the RSS including a local leader of the BJP were intent on revenge, they would have had ample opportunity to harm the applicant. He did not suffer any serious injury.
He could not explain in any convincing way why he was not seriously injured by RSS members who he claims attacked him in force with swords. The Tribunal does not accept that his brother was murdered by RSS. The Tribunal only has the applicant’s own assertions that these attacks occurred, after considering his evidence the Tribunal is not satisfied that the applicant was attacked or his brother murdered by radical Hindu forces aligned to the BJP and RSS parties or local BJP candidate, [Mr A] .
The Tribunal does not accept that he would not be able to return to his village or his wife’s family and live peacefully in India. His evidence is that his father has lived in his home village until he died of old age. His wife and children have lived in his home village without the applicant since 2017. He claims he spoke regularly to his wife and children and supported them with his earnings as [an Occupation 2] in Australia. He could not point to any threats or fear of harm in relation to his close family in his home village.
The applicant provided a large amount of independent information in the form of printouts of blogs, articles and newspaper reports. The applicant provided printouts of articles criticising the Indian governments revocation of Jammu and Kashmir’s special status. The Tribunal accepts independent information that there has been disagreement over the Indian government’s recent decision. However, this decision was made in 2019 and does not directly relate to any threat the applicant has outlined. Furthermore, the information indicates that India is a democracy and there has been criticism of the government and debate. There is no information before the Tribunal which indicates those who disagree with the revocation of the special status have been targeted or are at risk of serious harm.
The Tribunal accepts there has been unrest in Kashmir. The articles refer to the Muslim community suffering. Where there is reference to the Sikhs it is in newspaper articles which indicate that there were disputes over housing and land however action has been taken by the authorities against any perpetrators. The Tribunal accepts that there was a massacre of Sikhs in 2000 who were accused of being terrorists. The Tribunal also finds that there was an inquiry into that incident. The applicant provided further information on the unrest in Kashmir and Jammu 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 as above that the authorities have acted to investigate such clashes.
The Tribunal accepts that there has been concerns about the rise of Hindu nationalists however the Tribunal 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.
Considered 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 goes to India. It is not satisfied there is a real chance he will suffer serious harm for any of the reasons claimed or for any other reason if he goes 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 or any political connections they may have. The Tribunal does not accept that he is a high-profile critic of the government or its policies in Kashmiri. 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.
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 has come to the attention of the Hindu Nationalists, BJP or RSS due to his preaching or speaking at temples or at Sikh gatherings. 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.[4]
[4] DFAT, Country Information Report – India, 17 October 2018, p. 15, para [3.19].
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 5131

5 November 2020

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